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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 ..... rder of dismissal on 6th September, 1999 and he stood dismissed from that day. The order passed by the State Government dismissing the employee read as follows: Whereas the commissioner of Inquiries has submitted his report to the Government and has found him guilty of having embezzled Government money to the tune of Rs. 2,68,317.00 (Rupees two lacs, sixty eight thousand, three hundred and seventeen only) besides being responsible for financial mis-conduct and complete lack of devotion to duties. Whereas, after considering the report of the inquiry officer the involvement of Shri R.K. Zalpur, Senior Assistant, has been established in the embezzlement of Government money as indicated above in the office of Resident Commissioner, J & K, New Delhi. Whereas after accepting the report of the inquiry 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 339 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proceedings as envisaged Under Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 and that did tantamount to denial of reasonable opportunity to the delinquent official, as has been held by the Constitution Bench in E.C.I.L. v. B. Karunakar AIR 1994 SC 1074. On that singular ground, he allowed the writ petition and quashed the order of dismissal. 7. Being grieved by the aforesaid decision, the State Government preferred Letters Patent Appeal No. 102 of 2012. In the grounds of the Letters Patent Appeal, the State had clearly asserted: That the learned Single Judge, with great respects, has not appreciated the specific and important averment made by the Appellants that the Respondent had slept over the matter for quite seven years and has knocked the door of the Hon'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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for review and ultimately dismissed the same on the ground that there was no palpable error warranting review of the order. The principal order and the order passed in the review are the subject matters of assail in the present appeals. 11. We have heard Mr. Sunil Fernandes, learned Counsel for the Appellant-State and Mr. Gagan Gupta, learned Counsel for the first Respondent. 12. On a perusal of the factual exposition, it is quite vivid that the first Respondent was dismissed from service on 6th September, 1999, and he preferred the writ petition on 18th February, 2006, after a lapse of almost five and a half years. The plea relating to delay was specifically taken in the counter affidavit as a preliminary objection, but the learned Single Judge chose not to address the same. The appellate-Bench has noted the submission and modified 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Court to correct all manner or errors committed by the subordinate Court. 17. In Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes AIR 1964 SC 1372, this Court while discussing about the concept of review, has ruled that: a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions, entertained about it, a clear case of error apparent on the 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 er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 21. In this regard reference to a passage from Karnataka Power Corporation Ltd. Through its Chairman & Managing Director and Anr. v. K. Thangappan and Anr. (2006) 4 SCC 322 would be apposite: Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers Under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part 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 pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved 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. 24. At this juncture, we are obliged to state that the question of delay and laches in all kinds of cases would not curb or curtail the power of writ court 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of certain documents. Therefore, it is clear that the principle of delay and laches would not affect the grant of relief in all types of cases. 26. 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. 27. The grievance agitated by the Respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias"-'thanks to God'. 28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ Petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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