Soma Devi vs The State Of Jharkhand
2021 Latest Caselaw 1657 Jhar

             IN    THE    HIGH      COURT     OF      JHARKHAND      AT    RANCHI
                                    W.P. (S). No. 615 of 2019
                                              --------

1. Soma Devi

2. Vivek Kumar

3. Rahul Kumar

4. Kaushal Kumar ............ Petitioners Versus

1. The State of Jharkhand

2. The Secretary, Land and Revenue Department, Government of Jharkhand, Ranchi.

3. The Divisional Commissioner, South Chotanagpur Division, Ranchi.

4. The Deputy Commissioner, Gumla

5. The District Panchayati Raj Officer, Gumla.

.......... Respondents.

           CORAM:         HON'BLE MR. JUSTICE DR. S. N. PATHAK
                              (Through: Video Conferencing)

      For the Petitioners       :
                                M/s. Vijay Shankar Prasad,
                                     Kumar Vaibhav, Advocates.
      For the Respondents :     M/s. Deepak Kr. Dubey, A.C to A.A.G-II
                                              .
                                      ---------
11/07.04.2021    Heard learned counsel for the petitioners and learned counsel
      for the respondents.

2. The petitioners have approached this Court with a prayer for a direction to the respondents for the following reliefs:

(i) For quashing the order dated 02.08.2010 vide Memo No.770 (II) (Annexure-1) passed by the Deputy Commissioner, Gumla by which two annual increment of the petitioner(s) have been withheld as well as quash the part portion of Memo No.220 dated 28.02.2015 (Annexure-1) passed by the Deputy Commissioner, Gumla related to the petitioner.

(ii) For also making the direction to the respondents to grant the first ACP to the petitioner(s) from 09.08.1999 instead of 04.07.2007 as well as granted the benefit of second ACP to the petitioner(s) from 18.01.2005.

(iii) For also making a direction to the respondents to revised the pension of the petitioner(s) as per his claim as well as grant the retiral benefits accordingly and also for a direction to pay the due arrear within a specified time.

(iv) For issuance of any other appropriate orders or direction under the facts and circumstances of this case.

3. As per the factual matrix, the deceased petitioner namely Rupdeo Singh was appointed as a Jansewak on 18.01.1981 and, after serving about 30 years, he superannuated from service on 31.07.2010 while posted at Gumla Block under the respondents. Subsequently, during the pendency of the writ petition, the petitioner has died and I.A No.5993 of 2020 has been filed for substituting the names of the legal heirs/successors of the petitioner.

4. It is the specific case of the deceased namely Rupdeo Singh that although he worked for almost 30 years, but neither he was granted the benefit of Assured Career Progression (ACP) nor any regular promotion, for which, the deceased employee filed several representations for getting the benefits, but the same has not been paid to him and as such, he had preferred a writ petition, being W.P.(S) No.6098 of 2014, which was disposed of on 22.01.2015 with a direction to the respondents to examine the case of the (deceased) petitioner and pass an appropriate order in accordance with law but no order was passed for getting the benefits of financial upgradation. Thereafter, the (deceased) petitioner preferred a contempt application being Contempt Case (Civil) No.409 of 2015, wherein, in response, learned counsel for the respondents has rejected his entitlement. The deceased petitioner again approached this Court in W.P.(S) No.6244 of 2015 which was dismissed as withdrawn on 17.12.2018 as the Court did not find any fault with the respondents.

5. The present writ petition has also been filed, challenging the order of punishment dated 02.08.2010 passed by the Deputy Commissioner, Gumla.

6. Mr. Kumar Vaibhav, learned counsel appearing for the petitioners argues that the order of punishment is illegal, arbitrary, capricious and non- speaking order. Learned counsel further submits that it is a fit case to be interfered with, as from the very face of it, it appears that it is a cryptic, capricious and non-speaking order. Learned counsel further argued that during the pendency of the writ petition, the petitioner died and substituted by his widow wife and three sons, while they came to know about the punishment order passed in favour of his father, has approached this Court,

though belatedly.

7. Learned counsel further argued that sitting under Article 226 of the Constitution of India, this Court is empowered to exercise its discretionary power to interfere with the punishment order as from the very face of it, it appears that the respondents have issued the order of punishment, which is not tenable in the eyes of law.

8. To buttress its argument, Mr. Kumar Vaibhav has placed heavy reliance on the reported Judgment of the Hon'ble Apex Court in the case of Tukaram Kana Joshi & Ors. Vs. M.I.D.C, reported in (2013) 1 SCC, 353 as under :

12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third- party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.

13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the courts to exercise their powers under Article 226, nor is it that there can never be a case where the courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable.

14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners.

9. Learned counsel relying on the Judgment submits that there is no third party interest in the instant case and as such, the delay can be condoned and orders be passed on the merits to promote justice. The discretion must be exercised fairly and justly and it is a fair case in which the discretion of the Court should be exercised.

10. Per contra, counter affidavit has been filed.

11. Mr. Deepak Kr. Dubey, A.C to A.A.G-II, learned counsel appearing for the State vehemently opposed the contention of the learned counsel for the petitioners and submits that the petitioner(s) are not entitled for any discretion of the Court as they have not approached this Court with clean hands. The petitioners were very much aware about the punishment order, which was passed in the year 2010 itself. From the punishment order, it is reflected that the same was communicated to the petitioners and as such, the plea taken by the petitioners that they were not aware of the order, is not tenable. Even if the claim of the petitioners is accepted then he came to know about the punishment order only after the reasoned order passed by the respondents-State, he could have challenged the order in the year 2015 itself. Instead of challenging the order of punishment, the petitioners were aggrieved by non-payment of ACP, as they never chose to challenge the punishment order within the stipulated time and the writ petition was filed only after passing several years by the substituted widow and her three sons, challenging the order of punishment.

12. Learned counsel for the respondents further argued that the writ petition is fit to be dismissed with heavy cost on the ground of delay and latches.

13. Learned counsel has placed heavy reliance on the Judgment of the Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, reported in (2014) 4 SCC 108.

14. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the petitioners are not entitled for any discretion by this Court and as such, no interference is warranted in the writ petition / the order of punishment for the following facts and reasons:

1) There is a gross delay in challenging the order of punishment. The punishment order was passed on 02.08.2010 and after several years, the same has been challenged. As per the law laid down in the plethora of Judgments, the petitioners are precluded from challenging the punishment order at this stage.

2) There is a provision of appeal which was not availed by the petitioners, which shows the lethargic approach of the petitioners as they were very much satisfied with the order of punishment and as such, never thought of challenging the same, rather they were interested with regard to financial upgradation and instead of challenging the order of punishment, they chose to knock the door of this Court for getting the financial upgradation by way of Assured Career Progression (ACP).

3) The deceased employee was charged with committing irregularities in the work of Indira Awas Yojna by doing wrong identification and making payment fraudulently to the interested persons without following the guidelines and making suspiciously BPL entries by giving the benefits of Indira Awas Yojna to several members of the same family. The charges are serious in nature, which does not warrant judicial discretion of the Court.

15. However, reliance on the Judgment of the Hon'ble Apex Court in the case of Tukaram Kana Joshi & Ors. Vs. M.I.D.C is of no help to petitioners.

In paragraph-10 of the said Judgment, it has been clearly observed and interpreted "If whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analyzed, the petition is not hit by the doctrine of delay and latches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience."

In the instant case, where serious charges of defalcation and irregularities in the Government money have been levelled against the deceased employee, I do not understand how it shocks the judicial conscience, rather such type of persons should have been dismissed from service, instead of lenient view has been taken by the respondents by awarding the lesser punishment.

16. The demand of justice is not so compelling as to show discretion by interfering into the orders of punishment, rather the claim made by the applicant is illegal and not sustainable as the petitioners have not approached this Court with clean hands. It was only then when he did not succeed in getting the financial upgradation. They approached this Court after about ten years challenging the punishment order.

17. This Court is of the view that the Judgment relied upon by the learned counsel for the petitioners is of no help to the petitioners. On the ground of delay and latches, the Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, reported in (2014) 4 SCC 108, it has been held at paragraphs-16 and 17 as under:

16. The doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without

adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.

17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinise whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorized absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons -- who compete with "Kumbhakarna" or for that matter "Rip Van Winkle". In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.

18. Nothing has been brought on record to show that the respondents were prejudiced and as such, the impugned order has been issued. The Hon'ble Apex Court in the case of C. Jacob Vs. Director of Geology & Mining & Anr. reported in (2008) 10 SCC 115 has held as follows :

10. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for 'consideration'. If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing 'consideration' of such claims.

19. As a sequitur to the aforesaid rules, guidelines and judicial pronouncement, I find no merit in the instant case and as such, no interference is warranted. Accordingly, the instant writ petition stands dismissed.

(Dr. S.N. Pathak, J.)

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