Madras High Court
A.Jenitha Thangarani vs The Director Of on 23 July, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED .. 23/07/2013 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.11701 of 2013 and M.P.(MD)No.1 of 2013 A.Jenitha Thangarani .. Petitioner Vs 1.The Director of School Education, College Road, Chennai-600 006. 2.The Joint Director of School Education, DPI Campus, Nungambakkam, Chennai-6. 3.The District Educational Officer, Paramakudi, Ramanathapuram District. 4.The Chief Educational Officer, Ramanathapuram, Ramanathapuram District. 5.The Correspondent, Saint Heart Girls Higher Secondary School, Thiruvarangam, Ramanathapuram District. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus to call for the records pertaining to the impugned dismissal order dated 16.05.2001 on the file of the fifth respondent and the consequential order of the approval order dated 04.07.2001 through the Proceedings in Mu.Mu.No.8830/Aa2/2000 on the file of the fourth respondent, and quash the same as illegal and consequently to direct the respondents to provide the pension, gratuity and all other consequential benefits to the petitioner within the time stipulated by this Court. !For Petitioner .. Mr.Louis ^For Respondents .. Mr.G.Muthukkannan, Government Advocate for R1 to R4 :ORDER
According to the petitioner, her husband, a Post Graduate Assistant, in Saint Heart Girls Higher Secondary School, Thiruvarangam, Ramanathapuram District, availed unearned leave. He had also sought for extension of the leave. However, the fifth respondent school, by order dated 16.05.2001, dismissed her husband from the school with effect from 18.11.1999, from the date on which he availed leave. The Chief Educational Officer, Ramanathapuram, Ramanathapuram District, the fourth respondent herein, has also approved the dismissal of the petitioner's husband.
2.Being aggrieved by the dismissal, the petitioner's husband preferred an appeal on 30.07.2001 to the Joint Director of School Education (Higher Secondary), Chennai, the second respondent herein, and that the said appeal has been rejected by the Joint Director of School Education (Higher Secondary), Chennai, in Mu.Mu.No.73836/W7/2001 dated 11.03.2003. The petitioner's husband, died on 27.08.2004. Now, after a lapse of 10 years, after the rejection of the appeal, the petitioner's wife has challenged the order of dismissal dated 16.05.2001, passed by Saint Heart Girls Higher Secondary School, Thiruvarangam, Ramanathapuram District, and also the order of approval dated 04.07.2001 made in Mu.Mu.No.8830/Aa2/2000, passed by the Chief Educational Officer, Ramanathapuram, Ramanathapuram District, and consequently prayed for a direction to the respondents to provide pension, gratuity and other consequential benefits, on the ground that the order of dismissal passed by the fifth respondent, is illegal, and violative of the principles of natural justice.
3.In addition to the above, placing reliance on the decision of the Supreme Court in M.R.Gupta v. Union of India and others, reported in (1995) 5 SCC 628, Mr.Louis, learned counsel for the petitioner contended that in order to claim pension and other retirement benefits, no time limit has been fixed. He further submitted that rejection of the appeal by the Joint Director of School Education (Higher Secondary), Chennai was purely on technical grounds that insofar as minority institutions are concerned, an appeal against the order of dismissal cannot be entertained, and it is not on merits, and hence, he submitted that the writ petition can be entertained notwithstanding the length of delay. He also submitted that though continuous representations have been made to the authorities, the same have not been considered in proper perspective and hence, intervention of this Court to the orders passed by the fifth respondent School in the year 2001, and the consequential approval by the Chief Educational Officer, Ramanathapuram, Ramanathapuram District, is required.
4.Heard the learned counsel for the parties and perused the materials available on record.
5.As per the averments made in the supporting affidavit, it is seen that the fifth respondent School has dismissed the petitioner's husband on 16.05.2001. Dismissal has been approved by the competent authority, viz. the Chief Educational Officer, Ramanathapuram District, on 04.07.2001. Admittedly, an appeal had been preferred against the order of dismissal dated 30.07.2001, by the petitioner's husband, and against the consequential order of Chief Educational Officer, Ramanathapuram, Ramanathapuram District, dated 04.07.2001, to the Joint Director of School Education (Higher Secondary), Chennai, and that the same has been considered and rejected as early as on 11.03.2003. The petitioner's husband died on 27.08.2004. The order dated 11.03.2003 rejecting the appeal has reached finality and that there was no challenge by the petitioner's husband. Now after a decade, wife of the dismissed teacher, has challenged the order of dismissal as well as the order of approval, stated supra, on the ground of violation of principles of natural justice. Reliance has been placed on the decision of the Apex Court in M.R.Gupta v. Union of India and others, reported in (1995) 5 SCC 628. The reported judgment deals with arrears of pay. The decision is inapposite to the facts of this case.
6.Whatever be the reason for rejection of the appeal, the fact remains that during the life time of the petitioner's husband, there was no challenge to the said order, rejecting the appeal. The petitioner's husband died, after 1 year and 5 months, after the rejection. When he has not chosen to challenge the order, in the manner known to law, within a reasonable time, it has to be construed that the order has reached finality in the year 2003 itself. An order of dismissal affects an employee. He has a right to challenge the same to the higher authority or approach the Court of law. Such a statutory right available to an employee, cannot be said to have been inherited by the wife, when such an order has been communicated to the employee / husband of the petitioner, in the case on hand, and who had not challenged the order of rejection of the appeal, preferred by him. The contention of the petitioner that she is entitled to seek for pension and other monetary benefits, after the demise of her husband, can be accepted, only if the deceased employee is legally entitled for the same. It is trite law, that a dismissed employee is not entitled to pension. First of all, this Court is of the view that the petitioner, has no locus standi to test the correctness of an order of dismissal and the order of rejection of the appeal, when the aggrieved party, has not questioned the same before the Court of law or before any other statutory authority. Though no period of limitation is provided under Article 226 of the Constitution of India, in filing a writ petition, it is well settled that an aggrieved party should file the same, within a reasonable time.
7.Secondly, even taking it for granted that the wife can challenge an order of dismissal or the rejection of the appeal or both, there is inordinate and unexplained delay of 10 years. Let me consider some of the decisions on this aspect of delay. The term "Reasonable time" has been explained by the Courts. Laches or reasonable time are not defined under any Statute or Rules. "Laches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the laches in one case might not constitute in another. The laches to non-suit, an aggrieved person person from challenging proceedings should be inferred from the conduct and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.
8.The words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows:
"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean:
"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than 'directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
9.Delay defeats equity. In Dilbagh Rai Jarry v. Union of India, reported in (1974) 3 SCC 554, the Supreme Court considered the question of condoning delay of an application filed beyond the statutory period of limitation and on the aspect of delay, the Supreme Court observed thus:-
"....the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder, its own procedure based on general principles of justice, equity and good conscience. One of such principles is that delay defeats equity. The Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant."
10.In G.C.Gupta v. N.K. Pandey, reported in (1988) 1 SCC 316, the Supreme Court at paragraph 16, held as follows:-
16. Inordinate delay is not merely a factor for the court to refuse appropriate relief but also a relevant consideration it be so minded not to unsettle settled things.
11.In Hameed Joharan v. Abdul Salem, reported in (2001) 7 SCC 573, the Supreme court considered the enforceability of a decree, and the limitation thereof. In the said judgment, the Supreme Court after taking note of the Latin maxim "vigilantibus et non dormientibus jura subveniunt", explained the use of legal diligence and as to how lapse of time is species for forfeiture of right. In the words of Supreme Court, the above principle is explained hereunder:-
14. It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times:
even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in Manby v. Bewicke, reported in 1857 (3) K&J 342 = 69 ER 1140 (K&J at p. 352) stated: (ER p. 1144) "The legislature has in this, as in every civilized country that has ever existed, thought fit to prescribe certain limitations of time after which persons may suppose themselves to be in peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain."
12.In Board of Secondary Education of Assam v. Mohd. Sarifuz Zaman, reported in (2003) 12 SCC 408, the Supreme Court observed as follows:-
12. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone..."
13.In Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, reported in (2008) 17 SCC 448, the Supreme Court considered the question of extension of limitation, in matters pertaining to land acquisition proceedings.
The Apex Court explained the meaning of the word 'limitation' scope, rationale and the object in the enactments. While explaining, limitation and exercise of power of condonation by courts, at paragraph 14, the Supreme Court held as follows:-
14. It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court.
Holding that the laws of limitation are founded on public policy, the Supreme Court extracted Halsbury's Laws of England, at paragraph 26:-
26. Basically, the laws of limitation are founded on public policy. In Halsbury's Laws of England, 4th Edn., Vol. 28, p. 266, Para 605, the policy of the Limitation Acts is laid down as follows:
"605. Policy of the Limitation Acts.-The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove the stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
14.Paragraphs 27 to 29 would be relevant for the purpose of understanding the rationale behind fixing time limit, under the statutes and also as to how the courts have to exercise their jurisdiction of condonation of delay. Though the Apex Court referred to statutory limitations, yet the principles of law can be made applicable to the exercise of writ jurisdiction, for the reason that delay defeats equity, due to negligence or laches on the part of the party approaching writ jurisdiction.
27. Statutes of limitation are sometimes described as "statutes of peace". An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in Rajender Singh v. Santa Singh, reported in 1973 (2) SCC 705, has observed:
(SCC p. 712, para 18) "18. The object of law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches."
28. In Tilokchand Motichand v. H.B. Munshi, reported in 1969 (1) SCC 110, this Court observed that this principle is based on the maxim "interest reipublicae ut sit finis litium", that is, the interest of the State requires that there should be end to litigation but at the same time laws of limitation are a means to ensure private justice suppressing fraud and perjury, quickening diligence and preventing oppression.
29. It needs no restatement at our hands that the object for fixing time- limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
15.In S.S. Balu v. State of Kerala, (2009) 2 SCC 479, the Supreme Court considered a case, where the appellant therein, approached the court, with an inordinate delay, claiming right to appointment. The proposition of law held by the Apex Court is that there is no indefeasible right to appointment. A candidate included in rank list cannot obtain a mandamus, unless arbitrariness or discrimination is established. While addressing the aspect of delay, the Supreme Court, at paragraph 17, held as follows:-
17. It is also well-settled principle of law that "delay defeats equity".
The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal there against, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage.
16.In Ghulam Rasool Lone v. State of J&K, reported in (2009) 15 SCC 321, the Supreme Court, while considering the scope of equitable relief, considered the following decisions, at paragraphs 14 and 15, which are as follows:-
14. It is now well settled that who claims equity must enforce his claim within a reasonable time. For the said proposition, amongst others, we may notice a decision of a three-Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy, reported in 2004 (1) SCC 347 = 2004 SCC (L&S) 225, wherein it has been opined:
(SCC pp. 359-60, para 34) "34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar, reported in 1991 Supp (1) SCC 138 = 1991 SCC (L&S) 841 The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
(emphasis supplied)
15. The question yet again came up for consideration before this Court in NDMC v. Pan Singh, reported in 2007 (9) scc 278 wherein it has been observed: (SCC p. 283, para 16) "16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction
17.In view of the discussion and decisions stated supra, the writ petition filed after 10 years from the date of rejection of the appeal, is liable to be dismissed on locus, delay and laches. Hence, this Court is not inclined to entertain the writ petition. The writ petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
KM To
1.The Director of School Education, College Road, Chennai-600 006.
2.The Joint Director of School Education, DPI Campus, Nungambakkam, Chennai-6.
3.The District Educational Officer, Paramakudi, Ramanathapuram District.
4.The Chief Educational Officer, Ramanathapuram, Ramanathapuram District.