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TMI Blog2015 (10) TMI 2855X X X X Extracts X X X X X X X X Extracts X X X X ..... ication for review did not require delving deep into the factual matrix to find out the error. It was not an exercise of an appellate jurisdiction as is understood in law. It can be stated with certitude that it was a palpable error, for the principal stand of the State was not addressed to and definitely it had immense significance and hence, the same deserved to be addressed to. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry officer and after establishing his involvement, the Government has decided to take action against Shri R.K. Zalpuri, Sr. Assistant in terms of Clause (viii) of Rule 30 of the J K (Classification Control and Appeal) Rules, 1956 which provides dismissal from service. Whereas, Shri R.K. Zalpuri was informed about the decision of the Government vide communication No. GAD (Admn.) TA 3391-IV dated 04.06.1999 and was called upon under rules to show cause as to why the proposed action is not taken against him. Whereas Shri R.K. Zalpuri has furnished his reply to the notice served upon him, which has been considered by the Government and no merit was found in he same; Now, therefore, Shri R.K. Zalpur, Senior Assistant, in the office of the Resident Commissioner, J K, New Delhi is hereby dismissed from Government service with immediate effect in terms of clause VIII of Rule 30 of J K Civil Service (CCA) Rules, 1956. 3. After the said order was passed, the first Respondent did not prefer any departmental appeal nor did he approach any superior authority for redressal of his grievance. However, on 18th February, 2006, he filed a writ petition (S.W.P. No. 352 of 2006) before the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Court after a gap of seven years, thus there was clear unexplained huge delay and laches in filing the writ petition, the same was liable to be dismissed, however, the learned Single Judge without returning any finding on this vital issue has allowed the writ petition, therefore, the same is liable to be set aside on this ground along. 8. The Division Bench that heard the Letters Patent Appeal recorded a singular submission on behalf of the learned Counsel for the State which was to the effect that it had been left without any remedy to proceed against the delinquent government servant and, therefore, the order passed by the learned Single Judge needed modification. The Division Bench dealing with the said submission opined thus: Learned Single Judge has quashed Respondent's dismissal from Government service on the ground that copy of the proceedings prepared Under Rule 33 was not supplied to the Respondent before passing final orders on the provisional conclusion reached at on the basis of the inquiry to show cause as to why the proposed penalty be not imposed on him. Although the Appellants' dismissal was set aside by the Court finding non-compliance of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified the order and an application for review was filed with the stand that the plea pertaining to delay and laches had not been considered, but the review application, as we find from the record, was dismissed on the ground that the review could not be treated like an appeal in disguise. 13. Learned Counsel for the Appellant-State would contend that when a categorical stand was taken in the counter affidavit and a specific stance had been put forth in the intra-Court appeal as is manifest from the record, the High Court should have taken into consideration the same and not recorded a finding on a ground which was not taken in the grounds of appeal. 14. Learned Counsel for the Respondent-employee, per contra, would contend that the delay and laches cannot alone defeat the cause of justice and in any case, when substantial justice has been done this Court should not interfere in exercise of jurisdiction Under Article 136 of the Constitution of India. 15. We have noted that the High Court has rejected the application for review on the ground that it cannot sit in appeal and the parameters of review are not attracted. In this context, we may refer to the Constitution Bench judgment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face of the record would be made out. 18. Almost fifty-five years back, in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137, it was laid down that: an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments and such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. 19. We have referred to the aforesaid authorities as we are of the convinced opinion that in the present case, there was a manifest error by the High Court, for it had really not taken note of the stand and stance that was eloquently put by the State as regards the delay and laches. The averments in the writ petition were absolutely silent and nothing had been spelt out why the delay had occurred. The Single Judge, as stated earlier had chosen not to address the said issue. The Division Bench in appeal addressed the submission, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. After so stating the Court after referring to the authority in State of M.P. v. Nandalal Jaiswal (1986) 4 SCC 566 restated the principle articulated in earlier pronouncements, which is to the following effect: the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the Petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to exercise the discretion. In Tukaram Kana Joshi and Ors. v. Maharashtra Industrial Development Corporation Ors. (2013) 1 SCC 353 it has been ruled that: 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. And again: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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