Nita Chowdhury, Member (A).
1. This Original Application (OA) has been filed by the applicant claiming the following reliefs:-
'(1) To set aside and quash the order/memorandum dated 29.10.1999 (Annexure A-1) vide which the services of the applicant have been terminated by holding ex-parte enquiry.
(ii) To declare the enquiry findings and the order of suspension/termination/removal, existing against the applicant as null and void ab initio.
(iii) To regularise the period of ailment of the applicant for the purpose of counting towards the service as per rules.
(iv) To direct the respondents to award penalty, if any, to the applicant by following procedure laid down in the relevant rules.
(v) To allow all the consequential benefits to the applicant.
(vi) To pass any other order/directions as deemed proper in the peculiar circumstances of the case to meet the ends of justice'.
2. The facts, in brief, are that the applicant’s father was a Group ‘D’ employee working in the Post Office at Khurja, Bullandshahar. He was murdered and thereafter, applicant was offered job as a postman on 05.02.1996 on compassionate ground by respondent No.2 and he joined the said post on 25.03.1996. On 12.02.1997, the Postmaster, Bullandshahar made a report to the in-charge Police Station, Kotwali Nagar, Bullandshahar, alleging embezzlement of money order amounting to Rs.270/- by the applicant and on that basis, an FIR bearing No.114/1997 under Section 409 IPC was registered. However, he was granted bail in March, 1997 by the competent court.
3. It was further submitted by the applicant that he remained on active duty till 28.02.1998 when he was hit with some blunt object on his head and lost his consciousness and remained untraced. Thereafter, on 07.08.2000 (Annexure A-5), the mother of the applicant lodged a police compliant with the SHO, Kotwali Police Station, Bullandshahar about her missing son. He was found in Mathura on 19.02.2011 but not in his senses and was brought home. He remained under treatment of Vaids, Hakims, Babas etc. from 20.02.2011 to 13.09.2013 to recover from his illness, but in vain. Thereafter, he was admitted in National Institute of Medical Science Hospital, Faridabad on 14.09.2013 and other hospitals for his mental treatment. He filed an appeal to the Post Master General, Agra Division, Agra on 19.05.2014 to allow him to join duty.
4. The applicant has also filed MA No.1856/2016 seeking condonation of delay of 5655 days in filing the present OA bearing No.1590/2016. He had previously filed MA No.1474/2016 seeking the same relief, but ultimately sought permission to withdraw the same on 06.05.2016. He has raised the same grounds in MA No.1856/2016 which was raised by him in MA No.1474/2016.
5. The respondents have filed a reply opposing the OA as well as the MA. They have submitted that applicant did not deliver 1401 letters and 07 unpaid letters without tax to the addresses and kept them undelivered w.e.f. 24.12.1996 to 31.12.1996. By this act, he failed to maintain absolute integrity, devotion to duty and acted in a manner unbecoming of a Government servant as required under Rule 3(1)(i)(ii)(iii) of the CCS (Conduct) Rules, 1954. He was proceeded departmentally under Rule 14 of the CCS (CCA) Rules, 1965 on 20.05.1997. As a result, he was awarded punishment of removal from service vide order dated 29.10.1999 (Annexure R-1). Applicant has not preferred any appeal/representation against the said order as such he has not exhausted the departmental channel.
6. They have further submitted that applicant’s case was also reported to the Police Kotwali Nagar, Bulandshahar (UP) and FIR was lodged on 26.12.1998 under Case Crime No.738/1998 under Section 409 IPC. The police, after investigation, submitted a charge sheet No.253 dated 29.04.1999 in the court. The aforesaid fact is admitted by the accused (applicant) vide bail order dated 22.10.2013 in the criminal case. The Government exchequer loss of Rs.6000/- was credited by the applicant on 31.12.1999 which fully proves that the applicant has misappropriated Government money. They have thus prayed that the OA be dismissed as he has not exhausted departmental channel and criminal proceedings are also pending u/s 409 IPC.
7. Heard Shri K.L. Manhas, learned counsel for the applicant, Shri Duli Chand and perused the pleadings.
8. The applicant vide his MA seeking condonation of delay has contended that since his services were terminated vide order dated 29.10.1999 by holding ex-parte enquiry when he was not in his senses the order is bad in law. He was missing from the year 2000 and was traced only on 19.02.2011. He has thus prayed that since he became normal only in 2013 so delay may be condoned. The total period for which he remained out of service comes to 5655 days and hence prays that the MA be allowed. The learned counsel for the applicant places reliance on the following judgments in support of his submissions:-
(i) Judgment of the Hon’ble Delhi High Court in W.P. (C) No.10392/2015 in the case of P.K. Srivastava Vs. U.O.I. & Another decided on 01.12.2016.
(ii) Judgment of the Central Administrative Tribunal (Mumbai) in OA No.2024/2011 – Sukhdev Ramchandra Ganjakhetwal Vs. U.O.I. decided on 08.10.2015.
9. We may mention that first of all we have to deal with the question of limitation, only then we can proceed with the OA. The Hon’ble Apex Court has held that party seeking condonation of delay is a significant and relevant factor which should be first considered and only then the case should be decided on merits and doctrine of delay and laches should not be lightly brushed aside. The relevant judgments of the Apex Court with regard to limitation/delay in filing the petitions are as under:-
(i) In Esha Bhattachargee Vs. Managing Committee of Raghunathpur Nafar Academy and Others (2013) 12 SCC 649. After discussing the entire case law on the point of condonation of delay, the Ho’ble Apex Court has culled out certain principles as under:-
'21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. 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.
21.2. The terms 'sufficient cause' should be understood in 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. Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. 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. Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. 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. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. 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. 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 approach.
21.10. 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. 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. The entire gamut of facts are to be carefully scrutinized 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. 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. An application for condonation of delay should be drafted with careful concern and not in a half hazard 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. An application for condo nation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. 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. The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters'.
(ii) In Chennai Metropolitan Water Supply and Sewarage Board and Others Vs. T.T. Murali Babu (2014) 4 SCC 108, it was held by the Hon’ble Apex Court as under:-
'13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others[AIR 1969 SC 329] the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp[(1874) 5 PC 221], which is as follows: -
'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.'
14. In State of Maharashtra v. Digambar[(1995) 4 SCC 683], while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person’s entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc.[ AIR 1987 SC 251] the Court observed that:
'It is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.'
It has been further stated therein that:
'if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. '
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, 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 scrutinize 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 scrutinize 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 unauthorisedly 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'.
10. The applicant has not given any satisfactory explanation for the abnormal delay of about 5565 days in filing this OA. He has himself admitted in the OA that he was traced by his family on 19.02.2011 and since then he has been undergoing various treatments 'to become normal', but has not given any reason as to why he did not inform his employers since he was traced by his family in April, 2011, i.e. on 19.02.2011. He has taken over 5 years after his contention that he was traced by his family to bring MA No.1474/2016 in the present OA seeking the same relief but later withdrew the same on 06.05.2016. Even if we accept his contentions, this inordinate delay since 2011 itself is sufficient to come to the conclusion that the applicant does not deserve any indulgence either in condoning the delay or in entertaining the OA. In Union of India & Others Vs. M.K. Sarkar (2010) 2 SCC 58, the Hon’ble Apex Court held as under:-
'15. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be con
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sidered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches'. 11. A careful perusal of the decisions of the Hon’ble Apex Court in Esha Bhattarchargee (supra) and Chennai Metropolitan Water Supply and Sewarage Board and Others (supra) wherein it was categorically held that the conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration and the fundamental principles 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 approach and with the increasing tendency to perceive delay as a non-serious matter, and lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed off and the court is not expected to give indolent persons who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’, wherein such delay does not deserve any indulgence and on the said ground alone, the courts should have thrown the petition overboard at the very threshold. 12. We have examined the judgments relied upon by the applicant as mentioned in para 8 above. None of them is of any help to him in extending the inordinate and lengthy delay, which has occurred in this case. 13. Hence, in the facts of the present case, the OA cannot be entertained after a long lapse of time. Accordingly, the same deserves to be dismissed. 14. In the circumstances and for the aforesaid reasons mentioned above, the MA as well as OA are dismissed. No costs.