Madhya Pradesh High Court
Raghwendra Malviya vs The State Of Madhya Pradesh on 27 June, 2022
Author: Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 27th OF JUNE, 2022
WRIT PETITION No. 1081 of 2022
Between:-
RAGHWENDRA MALVIYA S/O LATE
HARVANSHLAL MALVIYA , AGED ABOUT
61 YEARS, OCCUPATION: (RETIRED)
TESTING ASSISTANT GRADE II MP
MADHYA KSHETRA VIDYUT VITRAN
CO.LTD. FROM THE OFFICE OF EXECUTIVE
ENGINEER / DEPUTY GENERAL MANAGER
(O AND M ) SOUTH DIVISION LINK ROAD
BETUL AMBEDKAR WARD CHANDNI
CHOWK TIKARI BETUL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI A.K. SINGH, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH PRINCIPAL SECRETARY
ENGERGY DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. MANAGING DIRECTOR M.P. MADHYA
KSHETRA VIDYUT VITRAN COMPANY
NISHTHA PARISAR GOVINDPURA
(MADHYA PRADESH)
3. CHIEF GENERAL MANAGER (HR AND A)
M.P. MADHYA KSHETRA VIDYUT VITRAN
C O M P A N Y NISHTHA PARISAR
GOVINDPURA (MADHYA PRADESH)
4. SUPERINTENDING ENGINEER / GENERAL
MANAGER (O AND M) CIRCLE BETUL M.P.
MADHYA KSHETRA VIDYUT VITRAN
COM PANY LINK ROAD BETUL (MADHYA
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PRADESH)
Digitally signed by SHUBHAM THAKKER
Date: 2022.07.02 12:51:22 IST
2
5. EXECUTIVE ENGINEER / DEPUTY GENERAL
M A N A G E R M.P. MADHYA KSHETRA
VIDYUT VITRAN COMPANY (O AND M0
SOUTH DIVISION LINK ROAD BETUL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHISHEK ARJARIA, RESPONDENT NO.3.)
This petition coming on for admission this day, the court passed
the following:
ORDER
The petitioner has filed this petition while praying for following relief
:
i. It is, therefore, prayed that this Hon'ble Court may kindly be
pleased to quash the impugned order dated 25.10.2010 (Annexure P/1)
and direct the respondents to reinstate the petitioner in service and pay
all the consequential benefits with interest within the stipulated period.
ii. This Hon'ble Court be further pleased to pass any such other
orders as this Hon'ble Court may deem fit under the circumstances of the
case.
The facts reveal that the petitioner herein who was working as
Assistant Grade-III in erstwhile M.P. State Electricity Board, later on
absorbed in M.P. Madhya Kshetra Vidyut Vitran Company Ltd.. He was
compulsorily retired vide order dated 25.10.2010 in purported exercise of
powers conferred under Rule 42(i) of M.P. Civil Services (Pension) Rules,
1976. The petitioner has challenged the order of compulsory retirement
dated 25.10.2010.
The counsel for petitioner submits that the order is perverse
inasmuch as the entire service record of the petitioner in the present case
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has not been considered on the basis of 5 years ACR's, and thus, has
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placed reliance, the order of the Co-ordinate Bench in W.P.
No.14505/2012 which has been upheld by the Division Bench in W.A.
No.1512/2018. The counsel submits that in para 4, the explanation of the
delay in filling of petition has been explained. As per the explanation which
is stated in para 4, the petitioner had responsibility to maintain his family
and, since, there is no other earning member in the family, on account of
scarcity of funds, the petitioner could not challenge the order of
compulsory retirement earlier and thus, has filed the present petition.
Per contra, the counsel for respondent while raising preliminary
objection submit that the writ petition suffers from delay and latches
inasmuch as, there is unexplained delay of 12 years and the petitioner in a
most casual manner has made a futile attempt to explain the delay in para 4
of the memorandum of writ petition. The counsel submits that the writ
petition deserves to be dismissed on the ground of delay inasmuch as, the
petitioner has not approached this Court with a clean hands in not
explaining the delay. The counsel while taking this Court to Annexure R/1
of the return submit that the last 5 years ACR's of the petitioner were taken
into consideration and there were imposition of punishment and issuance
of show-cause notice against the petitioner and all last 5 years, there were
three minor penalties against the petitioner, therefore since the petitioner
was turned out to be a deadwood and thus, in terms of provisions of Rule
42 (i) of M.P. Civil Services (Pension) Rules, 1976, the respondent rightly
retired the petitioner compulsorily.
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Heard, learned counsel for the parties.
Digitally signed by SHUBHAM THAKKER
Date: 2022.07.02 12:51:22 IST
This Court is of the opinion that instead of dealing the
petition on merit, the delay in filing of the petition needs to be
examined. It is to be considered as to whether the delay is
deliberate and reasons assigned in para 4 of the petition as
regards delay are sufficient or not ? The law pertaining to delay
has been dealt with by the Apex Court in the case of N.
Balakrishnan Vs. M. Krishanmurthy reported in (1998) 7
SCC 123 and Apex Court held that the rules of limitation are
not meant to destroy the right of the parties, unless and until the
party has resorted to bilateral tactics and the delay is deliberate.
The paragraph 10 of the judgment is reproduced herein :
10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the
parties and to advance substantial justice. The time-limit fixed for
approaching the court in different situations is not because on the expiry
of such time a bad cause would transform into a good cause.
.
The Apex Court again in para 21 to 22.4 in the case of Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy & Ors. reported in (2013) 12 SCC 649 has held as under :
21. From the aforesaid authorities the principles that can broadly
be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented,
non-pedantic approach while dealing with an application for condonation
of delay, for the courts are not supposed to legalise injustice but are
obliged to remove injustice.
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21.2. (ii) The terms"Âœsufficient cause"Â should be understood in
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their proper spirit, philosophy and purpose regard being had to the fact
that these terms are basically elastic and are to be applied in proper
perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and uncalled for
emphasis.
21.4. (iv) No presumption can be attached to deliberate causation
of delay but, gross negligence on the part of the counsel or litigant is to be
taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief because the
courts are required to be vigilant so that in the ultimate eventuate there is
no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it may not be attracted. That
apart, the first one warrants strict approach whereas the second calls for
a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating
to its inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the courts are
required to weigh the scale of balance of justice in respect of both parties
and the said principle cannot be given a total go by in the name of liberal
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21.10. (x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be vigilant not to
expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully
scrutinised and the approach should be based on the paradigm of judicial
discretion which is founded on objective reasoning and not on individual
perception.
21.13. (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines
taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be
drafted with careful concern and not in a haphazard manner harbouring
the notion that the courts are required to condone delay on the bedrock of
the principle that adjudication of a lis on merits is seminal to justice
dispensation system.
22.2. (b) An application for condonation of delay should not be
dealt with in a routine manner on the base of individual philosophy which
is basically subjective.
22.3. (c) Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a conscious effort for
achieving consistency and collegiality of the adjudicatory system should
be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a
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nonchalant manner requires to be curbed, of course, within legal
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parameters.
In the present case, the explanation which is being put forth in para
4 of the petition on the face of it, is not at all satisfactory. The prolong
delay of about 12 years in filing of the petition ought to have been
satisfactorily explained by the petitioner. The petitioner has attributed the
delay to the scarcity of fund which in the considered view of this Court is
not sufficient. The petitioner is now aged about 61 years as per the cause
title of the petition, therefore, at this stage, the respondent employer cannot
be saddled with the liability to consider the case of the petitioner again
particularly, when the petitioner himself was sitting tight over his rights for
a prolonged period of 12 years which is unexplained, and suffers from
delay and latches.
The petitioner submission that the case pertains to recurring cause
of action is also misconceived inasmuch as the petitioner retired
compulsorily way back in the year 2010, therefore, this petition is an effort
by the petition to seek reinstatement in the services back.
In the considered view of this Court, this does not amount to
recurring cause of action. The Apex Court in the case of M.R.Gupta Vs.
Union of India reported in (1995) 5 SCC 628 has held as under :
6. The Tribunal misdirected itself when it treated the
appellant's claim as "œone time action" meaning
thereby that it was not a continuing wrong based on a recurring
cause of action. The claim to be paid the correct salary computed
on the basis of proper pay fixation, is a right which subsists during
the entire tenure of service and can be exercised at the time of each
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payment of the salary when the employee is entitled to salary
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computed correctly in accordance with the rules. This right of a
government servant to be paid the correct salary throughout his
tenure according to computation made in accordance with the
rules, is akin to the right of redemption which is an incident of a
subsisting mortgage and subsists so long as the mortgage itself
subsists, unless the equity of redemption is extinguished. It is settled
that the right of redemption is of this kind. (See Thota China Subba
Rao v. Mattapalli Raju [AIR 1950 FC 1 : 1949 FCR 484 : 50 Bom
LR 181 : (1950) 1 MLJ 752] ).
7. Learned counsel for the respondents placed strong
reliance on the decision of this Court in S.S. Rathore v. State of
M.P. [(1989) 4 SCC 582 : 1990 SCC (L&S) 50 : (1989) 11 ATC
913 : 1989 Supp (1) SCR 43] That decision has no application in
the present case. That was a case of termination of service and,
therefore, a case of one time action, unlike the claim for payment of
correct salary according to the rules throughout the service giving
rise to a fresh cause of action each time the salary was incorrectly
computed and paid. No further consideration of that decision is
required to indicate its inapplicability in the present case.
However, in the present case, the petitioner's relation with the
respondent as master and servants ceased to exist way back in the year
2010. Therefore, the contention of the petitioner is that there is recurring
cause of action is ill founded and in this view of the matter the writ petition
is having been filed after an inordinate delay of 12 years, suffers from
delay and latches. Thus, instead of dealing with the merit of the case, this
Court is satisfied that there is utter failure on the part of the petitioner to
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explain the delay satisfactorily.
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Date: 2022.07.02 12:51:22 IST
Thus, since the petition suffers from deliberate delay and latches,
accordingly, the same stands dismissed.
(MANINDER S BHATTI)
JUDGE
Shub
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Digitally signed by SHUBHAM THAKKER
Date: 2022.07.02 12:51:22 IST
