V. Rajamanickam Vs The Government of Tamil Nadu and Others

S. Manikumar, J@mdashBeing aggrieved by the order of dismissal of the writ petition in W.P.(MD) No. 14750 of 2014, dated 21.01.2015, the writ petitioner, who is an octogenarian, has field the present writ appeal.

2. Material on records disclose that the appellant/petitioner joined as a Fireman on 22.08.1949 in the Department of Fire and Rescue Services. On 31.08.1958, he was promoted to officiate as Fireman Driver. Disciplinary proceedings were initiated against him by the District Fire Officer, Palayamkottai Division, in P.R. No. 1/1964 and that vide order in P.R. No. 1/1964, dated 07.06.1994, he was removed from service. According to the appellant/petitioner, he had submitted an appeal on 24.08.1964 to the Chief Fire Officer, Madras Fire Service, Southern Regional Office, Madurai (Now Deputy Director, southern Region), through the District Fire Office, Palayamkottai. However, by Memorandum of the District Fire Officer, Palayamkottai, in P.R. No. 1/64, dated 01.09.1964, the appellant was informed that the appeal was time barred and therefore it was withheld. After, nearly 49 years, on 09.10.2013, the appellant had submitted a petition to the second respondent, the Deputy Director, Department of Fire and Rescue Services, Southern Region, Madurai, terming it as "Review Petition".

3. Responding to the above petition, vide proceedings in Mu.Mu. No. 5486/Aa./2013, dated 27.03.2014, the Joint Director, Training and Rescue Operations, State Training Centre, Tamil Nadu Fire and Rescue Services Department, Chennai-42, who was also in Full Additional Charge of Deputy Director, Southern Region, Madurai, has stated that as per relevant Rules, the appeal petition ought to have been filed within 60 days from the date of punishment and if any petition for review is filed beyond the stipulated time, the Deputy Director of Fire and Rescue Services has no authority to take action. The Joint Director, Training and Rescue Operations, State Training Centre, Tamil Nadu Fire and Rescue Services Department, Chennai, who was also in Full Additional Charge of Deputy Director, Southern Region, Madurai, has also taken note of the averments made in the petition, styled as "Review Petition". Thereafter, for the reasons stated, has rejected the petitions dated 09.10.2013 and 18.11.2013. Referring to Rule 27 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the Joint Director has stated that time barred appeal could be withheld by an authority not less than the authority against whose order the appeal is preferred, Challenging the order of the second respondent, dated 27.03.2014, the appellant/petitioner filed the writ petition.

4. Before the Writ Court, an attempt has been made that the appeal preferred on 24.08.1964 has been withheld by the District Fire Officer, Palayamkottai, and that, only when the appellate authority passes order, the appellant/petitioner could approach this Court under Article 226 of the Constitution of India, against any order to be passed in the appeal and therefore there was no delay or laches on the part of the appellant. A perusal of the supporting affidavit also shows that the appellant/petitioner has contended that he has a right under Article 300-A of the Constitution of India to seek for pension. However, having regard to the enormous delay of nearly 49 years in approaching this Court, the writ court, by order dated 21.01.2015, had dismissed the writ petition.

5. Mr. M. Muthukaruppan, learned counsel for the appellant/petitioner reiterated the same grounds in the writ appeal and further contended that there was no delay on the part of the appellant in approaching this Court, as the appellant has filed the writ petition after exhausting the alternative remedy of appeal and review, as provided for in relevant Rules, and in support of his contention, he referred to the following decisions:--

"(ii) Punjab National Bank Vs. O.C. Krishnan and Others, (2001) 6 AD 207 : AIR 2001 SC 3208 : (2001) 2 BC 642 : (2001) 107 CompCas 20 : (2001) 4 CompLJ 179 : (2001) 6 JT 408 : (2001) 5 SCALE 196 : (2001) 6 SCC 569 : (2001) 2 UJ 1491 : (2001) AIRSCW 2993 : (2001) 6 Supreme 81 , wherein, the Hon''ble Apex Court has held as follows:--

"6. ...Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

(ii) C.C.T. Orissa and Others Vs. Indian Explosives Ltd., AIR 2008 SC 1631 : (2008) 2 CLT 355 : (2008) 3 SCALE 307 : (2008) 3 SCC 688 : (2008) 14 VST 1 : (2008) AIRSCW 1815 , wherein, it has been held as follows:--

"8. The High Court seems to have completely lost sight of the parameters highlighted by this Court in a large number of cases relating to exhaustion of alternative remedy. Additionally the High Court did not even refer to the judgment of another Division Bench for Assessment Year 1997-1998 and Assessment Year 1998-1999 in respect of ICI India Ltd. In any event the High Court ought to have referred to the ratio of the decision in the said case. That judicial discipline has not been adhered to. Looked at from any angle, the High Court''s judgment is indefensible and is set aside."

6. To contend further that the learned Single Judge has not followed the law as declared by the Hon''ble Supreme Court in the above cited case, the learned counsel relied on the decision of the Hon''ble Supreme Court, reported in State of West Bengal Vs. Ashish Kumar Roy and Others, AIR 2005 SC 254 : (2004) 10 JT 217 : (2004) 10 SCALE 202 : (2005) 10 SCC 110 : (2004) AIRSCW 6905 : (2005) 4 Supreme 554 , wherein the Hon''ble Apex Court has held as follows:

"19. ...In our view, the opinion pronounced in para 98 and the directions given in para 99 clearly amount to "law declared" within the meaning of Article 141 of the Constitution. It was not open to the learned Single Judge of the High Court to take any view inconsistent with or deviating from the law thus laid down. Hence, in our judgment, the findings made and the directions given by the learned Single Judge on Contentions 2 and 3 must straight away be set aside as inconsistent with the law laid down by this Court which was binding on the High Court."

7. Per contra, to sustain the order made in the writ petition, the learned Special Government Pleader appearing for the respondents, relied on the following decisions. (i) Eastern Coalfields Ltd. Vs. Dugal Kumar, AIR 2008 SC 3000 : (2008) 4 CLT 70 : (2008) 8 JT 276 : (2008) 10 SCALE 449 : (2008) 14 SCC 295 : (2008) AIRSCW 5055 ; and (ii) an unreported decision of the Patna High Court in Civil Writ Jurisdiction Case No. 238 of 2013, decided on 27.03.2015 - Ramalinga Singh v. The State of Bihar & Others.

8. In Eastern Coalfields Ltd. Vs. Dugal Kumar, AIR 2008 SC 3000 : (2008) 4 CLT 70 : (2008) 8 JT 276 : (2008) 10 SCALE 449 : (2008) 14 SCC 295 : (2008) AIRSCW 5055 , the Hon''ble Supreme Court has held as follows:

"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 extraordinary 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."

9. In the unreported decision of the Patna High Court (supra), it has been held as follows:

"5. In the considered opinion of this Court, this writ application must fail on the ground of delay and laches alone inasmuch as the petitioner''s appointment came to be cancelled on 25.02.2003 and this writ application has been filed almost after ten years on 04.01.2013 for setting aside such order. Mere filing of representation cannot be sufficient explanation for such inordinate delay in moving this Court.

6. By now it is also well settled that mere filing of representation and awaiting result of the same would not explain the delay and the writ application for the unexplained delay in moving court would be dismissed on the ground of delay and laches. Reference in this connection may be made to the judgment of the Apex Court in the case of Karnataka Power Corporation Limited through its Chairman and Managing Director and Another Vs. K. Thangappan and Another, AIR 2006 SC 1581 : (2006) 109 FLR 724 : (2006) 4 JT 312 : (2006) 2 LLJ 421 : (2006) 4 SCALE 56 : (2006) 4 SCC 322 : (2006) SCC(L&S) 791 : (2006) 3 SLJ 201 : (2006) AIRSCW 3259 : (2006) AIRSCW 1828 : (2006) 5 Supreme 309 : (2006) 3 Supreme 370 wherein it was held as follows:--

"9. It was stated in State of M.P. and Others Vs. Nandlal Jaiswal and Others, AIR 1987 SC 251 : (1986) 2 SCALE 638 : (1986) 4 SCC 566 : (1987) 1 SCR 1 that 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, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weights with the High Court in deciding whether or not to exercise such jurisdiction."

10. Before adverting to the contentions, let us consider what laches means. 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 from challenging a proceeding should be inferred from the conduct of the party 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.

11. The words "reasonable time", as explained in Veerayee Ammal Vs. Seeni Ammal, AIR 2001 SC 2920 : (2001) 9 JT 145 : (2001) 7 SCALE 403 : (2002) 1 SCC 134 : (2001) AIRSCW 4377 : (2001) 7 Supreme 812 , 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."

12. Reverting back to the case on hand, all the three decisions relied on by the learned counsel for the appellant/petitioner are not applicable to the facts of this Court. It is trite that law declared by the Hon''ble Supreme Court is binding on all Courts, subordinate to it and it should be followed without any deviation. It is also trite to say that if there is efficacious alternative remedy, provided under Act/Rules, it should be exhausted before approaching this Court under Article 226 or 227 of the Constitution. The appellant/petitioner, after making an appeal petition on 24.08.1964, has kept quiet and did not make any attempt pursue the appeal, which was, in fact, withheld by the disciplinary authority himself, as the appeal was time barred, as early as on 01.09.1964. But, after a lapse of about 49 years from the date of his appeal, the appellant/petitioner has made a petition on 09.10.2013, styling it as "review petition", and sought to review the order of the disciplinary authority, namely, the District Fire Officer, Palayamkottai Division, in P.R. No. 1/64, dated 01.09.1964, withholding the appeal preferred by him. The 2nd respondent has rightly rejected the petition, dated 09.10.2013, submitted by the appellant/petitioner, as time barred.

13. The learned Single Judge, after considering the facts and circumstances of the case, has dismissed the writ petition, on the ground of delay and laches, holding thus:

"8. I failed to understand as to how the petitioner is justified in seeking to review the order after such a long period of 49 yrs. It is well settled that a person should be vigilant and approach the authorities within a reasonable time to seek any remedy. If he is not vigilant and slept over the matter for 49 years, he cannot be given any indulgence. Hence, I find that the order impugned in this writ petition does not warrant any interference by this Court and the writ petition is dismissed. No costs."

Decisions relied on by the learned Special Government Pleader squarely apply to the fats of this case.

14. It is also well settled that delay defeats equity. In Board of Secondary Education of Assam Vs. Md. Sarifuz Zaman and Others, (2003) 10 SCALE 89 : (2003) 12 SCC 408 : (2003) 6 SCR 1273 Supp , the Supreme Court has 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...."

15. In S.S. Balu and Another Vs. State of Kerala and Others, AIR 2009 SC 1994 : (2009) 122 FLR 54 : (2009) 2 JT 26 : (2009) 1 SCALE 723 : (2009) 2 SCC 479 : (2009) 1 SCC(L&S) 388 : (2009) 1 SCR 196 : (2009) 2 SLJ 480 : (2009) AIRSCW 1644 , 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 Vs. State of Jammu & Kashmir and Another, (2009) 122 FLR 983 : (2009) 13 JT 422 : (2009) 15 SCC 321 : (2010) 1 SCC(L&S) 539 : (2009) 10 SCR 591 : (2009) 3 SLJ 211 : (2009) 5 SLR 449 : (2009) 8 UJ 3740 , 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 Government of West Bengal Vs. Tarun K. Roy and Others, (2003) 9 JT 130 : (2004) 1 LLJ 421 : (2004) 1 SCC 347 : (2004) SCC(L&S) 225 , wherein it has been opined:

"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 State of West Bengal and Others Vs. Debdas Kumar and Others, (1991) 62 FLR 647 : (1991) 2 JT 36 : (1995) 3 LLJ 294 : (1991) 1 SCALE 271 : (1991) 1 SCC 138 Supp : (1991) 1 SCR 517 : (1991) 2 UJ 30 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 New Delhi Municipal Council Vs. Pan Singh and Others, AIR 2007 SC 1365 : (2007) 113 FLR 338 : (2007) 4 JT 253 : (2007) 4 SCALE 204 : (2007) 9 SCC 278 : (2007) 2 SCC(L&S) 398 : (2007) 3 SCR 711 : (2008) 3 SLJ 130 : (2007) AIRSCW 1705 : (2007) 3 Supreme 743 wherein it has been observed:

"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. Again, while referring to statutes of limitation, the Supreme Court described them as statutes of peace. 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 are applicable to writ jurisdiction also, for the reason that delay defeats equity, due to negligence of the parties or laches.

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 and Others Vs. Santa Singh and Others, AIR 1973 SC 2537 : (1973) 2 SCC 705 : (1974) 1 SCR 381 , has observed:

"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 and Motichand and Others Vs. H.B. Munshi and Another, AIR 1970 SC 898 : (1969) 1 SCC 110 : (1969) 2 SCR 824 : (1970) 25 STC 289 , 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."

18. In view of well settled position of law on the aspect of delay and laches, we see no ground, warranting interference in the order of the writ court. Accordingly, while, confirming the order of the writ court, this writ appeal is dismissed. No costs. Connected miscellaneous petition is also dismissed.