Gujarat High Court
Union Of India & vs Jayesh V Gajjar on 11 June, 2014
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/16732/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16732 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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UNION OF INDIA & 1....Petitioner(s)
Versus
JAYESH V GAJJAR....Respondent(s)
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Appearance:
MS PJ DAVAWALA, ADVOCATE for the Petitioner(s) No. 1 - 2
MR PH PATHAK, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 11/06/2014
ORAL JUDGMENT
Page 1 of 12
C/SCA/16732/2013 JUDGMENT (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This petition is filed by Union of India through Chief General Manager, Department of Telecommunication. This is primarily to keep this writ petition in consonance with the title of the Transfer Application No.4 of 2011 which has given rise to the impugned judgment of the Central Administrative Tribunal, Ahmedabad. In fact, however, the proceedings are pursued by Bharat Sanchar Nigam Limited (for short, 'BSNL'), which was carved out from the erstwhile Department of Telecommunication. Petitioner has challenged the judgment of the Central Administrative Tribunal, Ahmedabad dated 8th August, 2013 in following background.
2. Respondent herein was appointed to the post of Technician at Anand under Department of Telecommunication on 10.12.1982. He submitted his resignation on 23.3.1985 which was accepted by the Competent Authority on 28.3.1985. On and around 14.5.1985, he made an application to the authorities to allow him to withdraw the resignation and to be continued in the services of the Department of Telecommunication. On 1.1.1986, on such application, the Department passed an order which reads as under:
"Having tendered an unconditional resignation w.e.f. 31.1.1985 BY Shri J.V.Gajjar, Technician, VVN which was accepted vide DET AHD's Memo No Q-821/58 dt.28.3.85 and Shri J.V.Gajjar applied for re-appointment for the post of Technician vide his application dtd.
Page 2 of 12C/SCA/16732/2013 JUDGMENT 18.4.85, following orders are hereby issued in accordance with the instruction issued on the subject vide DG, P & T No 201/36-STB dt.25.8.83 to G.M. Telecom Bihar and copy to all circles endorsed vide GM Telecom, A'bad No Staff-27- 2/Rlg/1/16/dt-9/1983.
Shri J.V.Gajjar, Ex-Technician of this Dvn is hereby re-appointed as technician and posted at Vallabhvidyanagar under S.D.O. Phones, Anand with immediate effect.
The period of interruption in the service of Shri J.V.Gajjar i.e. from 31.3.85 and the date of acceptance of resignation and the date of resumption after re-appointment will not count as qualifying service".
3. Under such order, the employee rejoined his duty as a Technician in the Department of Telecommunication. He continued to work in the said department for several years. Long time, thereafter, in the year 1996, he raised the question of his seniority contending that the period of break in service between the date of resignation and his re-engagement be ignored and the past services rendered by him should count for the purpose of seniority and all other benefits. On such representation, the department passed an order dated 26.8.1996, stating as under:
"With reference to your application reg. seniority in the cadre of Tech.it is intimated Page 3 of 12 C/SCA/16732/2013 JUDGMENT that your had tender your resignation unconditional w.e.f.31.3.85 & it is accepted by DET Anand vide Memo Q.821/58 dt. 28.5.1985.
Thereafter you had applied for re-
appointment as Tech in accordance with
instructions issued vide DG P & T No 201/36/82- STB dt 25.6.85 you have been reappointed as Tech and posted at VVNagar vide DET anand Memo No.Q.821/71 dt.1.1.86, break in service is more than nine months cannot be counted please".
4. The employee yet did not take any further legal steps till the year 2003 when for the first time, he approached Central Administrative Tribunal, Ahmedabad by filing original application. It appears that at that time, BSNL was not notified as one of the authorities under Section 14(2) of the Administrative Tribunals Act as one of the authorities over which the Tribunal would have jurisdiction. We are informed that therefore, the Tribunal disposed of original application holding that Tribunal has no jurisdiction. The employee, therefore, filed Special Civil Application No.10059 of 2004. In the meantime, since BSNL was notified as authority under Section 14(2) of the Administrative Tribunals Act, such petition was transferred before the Tribunal in terms of Section 29(2) of the said Act and numbered as T.A.4/2011. Prayer of the employee was for a direction to the Departmental authorities to treat the petitioner in continuous service from the date of initial appointment and for granting all consequential benefits flowing therefrom. He had also Page 4 of 12 C/SCA/16732/2013 JUDGMENT prayed for a declaration that the decision of the Department not to count his services from an initial stage as continuous for granting service benefits and treating break in service as illegal.
5. Such transfer application was allowed by the Tribunal by the impugned judgment. The Tribunal was of the opinion that in terms of Rule 26(2) of the CCS (Pension) Rules, the benefit of the past services must be given to the employee. The Tribunal, therefore, gave the following directions:
"19. IN the result, TA is disposed of with a direction to the respondents and their successor-in-office to reckon the service rendered by the applicant from 10.12.1982 to 31.3.1985 for the purpose of the benefits under the CCS (Pension) Rules, 1972. It is, however, made clear that the period of interruption in service from 31.3.1985 to 2.1.1986 shall not be counted as qualifying service for the purpose of fixation of pay, seniority, promotion and pensionary benefits".
6. It is this judgment of the Tribunal, the Department has challenged in this writ petition.
7. Ms.Davawala, learned counsel for the petitioner submitted that petitioner was re-engaged after he was relieved on acceptance of his resignation. The past services, therefore, would not count for any service benefit. In the order dated 1.1.1986 itself, the condition Page 5 of 12 C/SCA/16732/2013 JUDGMENT for re-engagement of the employee was mentioned. He accepted his re-engagement on same condition without any protest. More than 10 years later, he raised the dispute of seniority. Even thereafter, he first approached the Court in the year 2003. Thus at all stages, the employee had shown lethargy in pursuing the cause.
8. On the other hand, learned counsel, Mr.P.H.Pathak, vehemently contended that Tribunal has not committed any error. The period of break-up in services is not counted for any purpose and only past services prior to resignation is saved. This flows from Rule 26 from the CCS (Pension) Rules. No interference in writ petition under Article 227 of the Constitution of India is, therefore, called for.
9. Facts are not seriously in dispute. The present respondent-employee after his appointment as Technician in the Department of Telecommunication in the year 1982, left services after tendering his resignation which was accepted on 28.3.1985. He applied for withdrawal of resignation on 14.5.1985. On such application, as noted earlier, the employer passed an order on 1.1.1986. He was reappointed as Technician. It was, however, clarified that the period from 31.3.1985 and the date of acceptance of resumption after reappointment will not count as qualifying service. The said order thus in clear terms provided for the employee's reappointment. It was not the case where after allowing him to withdraw the resignation, he was continued in service from Page 6 of 12 C/SCA/16732/2013 JUDGMENT inception. There is a clear distinction where an employee whose resignation though accepted is allowed to withdraw the same and an employee whose resignation is not only accepted but after the relationship of employer-employee is terminated, thereafter, he is reappointed on the same post. Present case falls in the later category. By way of further clarification, the authority also clarified that the period from date of acceptance of resignation till resumption on reappointment will not count as qualifying services. This by itself would not mean that the earlier services from the initial appointment till termination of resignation would count for any purpose of service benefits. Purport of the said order dated 1.1.1986 is clear, namely, respondent was being reappointed on the same post. Such reappointment would commence fresh employer- employee relationship and all his service benefits would be governed past such date.
10. Rule 26 (1) of CCS (Pension) Rules provides that resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service. Upon the employee, therefore, tendering his resignation which was accepted and he was relieved from duty, the same would lead to the forfeiture of the past services. Under the circumstances, the employee was not entitled to the direction that employee's past services should count towards the seniority and other services benefits. In our view, Page 7 of 12 C/SCA/16732/2013 JUDGMENT the Tribunal therefore committed an error in granting such a prayer. There is an additional ground on which we are inclined to set aside the judgment of the Tribunal, namely, of gross delay and laches of the employee in raising the issue. In the order dated 1.1.1986 itself it was clarified that employee has been reappointed as Technician and on such condition, he was engaged in service. If he had any dispute, he ought to have raised the same within some reasonable period. He raised no grievance about such a condition till the year 1996 when for the first time, he disputed his seniority position. His contention that past services including the break in period must count for seniority was rejected by the Department in the year 1996. Even thereafter, for 7 more years, he took no further legal steps. For the first time, in the year 2003, he filed an application before the Tribunal and thereafter, before this Court. In our opinion, his approach to Court of law was grossly belated. On the ground of delay, laches and acquiescence also the Tribunal ought to have dismissed the petition. It is well settled that law does not help the lethargic or tardy litigants. Though for filing writ petition, no fixed period of limitation is prescribed, the Courts do expect the litigant to file the proceedings within some reasonable period. What is a reasonable time must be judged in facts of each case. In the present case, 17 long years have passed when the employee raised his first proceedings before a Court of law. Such period, by no stretch of imagination can be stated to be Page 8 of 12 C/SCA/16732/2013 JUDGMENT reasonable. No explanation except for suggesting that employee was representing before the Department was rendered by the counsel. No other explanation is coming forth from the record.
11. In the case of Eastern Coalfields Ltd. V/s. Dugal Kumar reported in (2008) 14 SCC 295, it was held and observed as under:
24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant- Company. It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution, that he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.
25. Under the English law, an application for leave for judicial review should be made "promptly". If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant.
Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex Country Council, 1993 COD 344).
26. In R. v. Dairy Produce Quota Tribunal, (1990) 2 AC 738, 749 : (1990) 2 All ER 434 : (1990) 2 WLR 1302, the House of Lords stated;
"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the persons affected by the decision".Page 9 of 12
C/SCA/16732/2013 JUDGMENT
27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v.Prosper Armstrong, (1874) 5 PC 221 : 22 WR 492 thus;
"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 or 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 it relates to the remedy."
(emphasis supplied)
28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi, (1969) 2 SCR 824 and Rabindra Nath Bose v. Union of India, (1970) 1SCR 697, this Court ruled that even in cases of violation or infringement of Fundamental Rights, a writ Court may take into account delay and laches on the part of the petitioner in approaching the Court. And if there is gross or unexplained delay, the Court may refuse to grant relief in favour of such petitioner.
29. It is not necessary for us to refer to several decisions on this point wherein a similar view has been taken by this Court. Suffice it to say that in Express Publications v. Union of India, (2004) 11 SCC 526, this Court referring to Tilokchand Motichand, Rabindranath Bose and Ramchandra Deodhar v. State of Maharashtra, (1974) 1 SCC 317, explained the principle thus;
Page 10 of 12C/SCA/16732/2013 JUDGMENT "No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. It has to be remembered that the constitutional remedy under Article 32 is discretionary. In one case, this Court may decline discretionary relief if person aggrieved has slept over for long number of years. In another case, depending upon the nature of violation, court may ignore delay and pronounce upon the invalidity of a provision. It will depend from case to case." (emphasis supplied)
12. In the case of City And Industrial Development Corporation v/s. Dosu Aardeshir Bhiwandaiwala and others reported in (2009) 1 SCC 168, it was observed as under:
"26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
27. The appellant in its reply opposing the admission of Writ Petition in clear and categorical terms pleaded that the writ petitioner has kept silent for more than 35 years and filed belated writ petition. It was asserted that on account of inordinate delay and laches the writ petition suffers from legal infirmities and therefore liable to be rejected in limine. The High Page 11 of 12 C/SCA/16732/2013 JUDGMENT Court did not record any finding whatsoever and ignored such a plea of far reaching consequence".
13. For all these reasons, petition is allowed. Impugned judgment of the Tribunal dated 8th August, 2013 is quashed. Rule made absolute accordingly.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) ashish Page 12 of 12