Jharkhand High Court
Dilip Kumar Sahu vs The State Jharkhand on 8 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----
L.P.A No. 510 of 2024
------
Dilip Kumar Sahu, aged about 62 years, son of Late
Narayan Sahu, resident of Gurudwara Road, Lower Hatia,
P.O.-Hatia, P.S.-Jagarnathpur, District-Ranchi.
.... Petitioner/Appellant
Versus
1. The State Jharkhand, through its Chief Secretary,
Government of Jharkhand, Project Bhawan, P.O. & P.S.-
Dhurwa, District-Ranchi.
2. Divisional Commissioner, South Chhotanagpur
Division, Ranchi, P.O.-GPO, Ranchi, P.S.-Kotwali, District-
Ranchi.
3. Deputy Commissioner, Gumla, P.O. & P.S.-Gumla,
District-Gumla.
4. Deputy Development Commissioner-cum-Dy.
Chairman, District Rural Development Authority, Gumla,
P.O. & P.S.-Gumla, District-Gumla.
.... ...Respondents/Respondents
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
For the State : Mr. Ratnesh Kumar, SC (L&C)-I
Mr. R.K. Shahi, AC to SC (L&C)-I
.....
Order No. 05/Date: 8th January, 2025:
Per Sujit Narayan Prasad, J.:
Prayer:
1. The instant intra-court appeal, under Clause 10 of
the Letters Patent, is directed against order/judgment
dated 16.08.2024 passed by learned Single Judge in
W.P.(S) No. 4477 of 2019 whereby and whereunder
without deliberating the issues on merit the learned
Single Judge has dismissed the writ petition by refusing
to interfere with the order passed by the disciplinary
-2-authority dated 22.09.1997 and appellate order dated
05.06.2006 solely on the ground of delay and laches,
since the writ petition was filed after a lapse of about 12
years of passing of impugned order.
Brief facts of the case:
2. Brief facts of the case, as per the pleadings made in
the writ petition, which is required for adjudication of lis,
reads as under:
3. The petitioner was appointed on the post of Village
Level Worker [VLW], now designated as „Jan Sewak‟, on
20.10.1986. While working as such in the district of
Raidih, Gumla, he was served with a charge-sheet issued
by respondent no. 3 on 18.12.1990, on the allegation of
dereliction of duty and irregularities in Government work,
misleading the higher authorities and violation of
Government Rules, to which he replied vide letter dated
06.01.1991 before the enquiry officer denying the
allegation leveled against him.
4. After enquiry, vide letter dated 03.04.1991, the
enquiry officer-cum-Sub Divisional Officer, Gumla
submitted enquiry report to the Director, Accounts,
Administration and Self-Employment Programme, Gumla
holding the charges not proved against the appellant.
However, disagreeing with the enquiry report, the
respondent no. 3 asked respondent no. 4 to re-enquire
-3-
the matter, in turn, the respondent no. 4 submitted the
report holding charge nos. 1 and 2 not proved whereas in
respect of charge no. 3, the appellant was asked to be
vigilant.
5. Thereafter, vide office order dated 13.02.1992, the
respondent no. 4 imposed a punishment of withholding
of five annual increments and salary for the period of
suspension, against which, the appellant preferred
departmental appeal, which was dismissed vide order
dated 07.09.1993.
6. Being aggrieved with the order passed by the
disciplinary authority as well as the appellate authority,
the appellant invoked the writ jurisdiction of this Court
by filing CWJC No. 1953 of 1994(R), which was dismissed
vide order dated 17.05.1995, against which the appellant
preferred intra-court appeal, being LPA. No. 288 of
1995(R), which was allowed vide order dated 10.07.1996
and the matter was remitted to the disciplinary authority
asking him to start the proceeding afresh from the stage
of enquiry report after providing opportunity of being
heard to the appellant and to pass a reasoned order.
7. Accordingly, the respondent no. 3 modified the order
of punishment vide order dated 22.09.1997 and reduced
the same by withholding two annual increments and
salary during the period of suspension, against which the
-4-
writ petitioner-appellant preferred departmental appeal
which was dismissed vide order dated 05.06.2006.
8. The writ petitioner-appellant being aggrieved with the
order passed by the disciplinary authority dated
22.09.1997 and appellate order dated 05.06.2006 again
invoked the writ jurisdiction of this Court conferred
under Article 226 of the Constitution of India by filing
writ petition being W.P. (S) No. 4477 of 2019, which was
dismissed solely on the ground of delay and laches
without deliberating the issues on merit, against which
the instant intra-court appeal has been preferred.
9. It is evident from the aforesaid factual aspect that
the appellant, who is a Village Level Worker [VLW] was
served with a charge-sheet on the allegation, inter alia,
(i).dereliction of duty and irregularities in Government
work; (ii).misleading the higher authorities and
(iii).violation of Government Rules. For ready reference,
the charge, which is in Hindi, is quoted as under:
,
– (ख)
1 – ( )
2 ख
3. 1200-1800
1
ऋ
1. , ख
-5-ख ध
11.04.1990ध
ख
10.04.1990
इ
2. ध , ख
धख ,
ऋ
ख
ध
ऋ
3. , ख
,
फ
ऋ
इ
,
ध . 15
ध ध ध
इ ध
औ
– –
-6-
10. The enquiry officer-cum-Sub Divisional Officer,
Gumla found the charges leveled against the appellant
not proved. But disagreeing with the enquiry report, the
respondent no. 3 asked respondent no. 4 to re-enquire
the matter, whereupon, the respondent no. 4 again
submitted the report holding charge nos. 1 and 2 not
proved whereas in respect of charge no. 3, the appellant
was warned to be vigilant.
11. Thereafter, vide office order dated 13.02.1992, the
respondent no. 4 imposed a punishment of withholding
of five annual increments and salary for the period of
suspension, against which, the appellant preferred
departmental appeal, which was dismissed vide order
dated 07.09.1993.
12. Being aggrieved the appellant filed writ petition being
CWJC No. 1953 of 1994(R), which was dismissed, against
which the appellant preferred LPA. No. 288 of 1995(R),
which was allowed vide order dated 10.07.1996, by
which, the matter was remitted to the disciplinary
authority asking him to start the proceeding afresh from
the stage of enquiry report after providing opportunity of
being heard to the appellant.
13. Accordingly, the respondent no. 3 modified the order
of punishment vide order dated 22.09.1997 by reducing
the punishment by withholding two annual increments
-7-
and salary during the period of suspension, against
which the petitioner preferred departmental appeal which
was also dismissed vide order dated 05.06.2006.
14. The appellant being aggrieved with the same again
filed writ petition being W.P. (S) No. 4477 of 2019, which
was dismissed solely on the ground of delay and laches
without deliberating the issues on merit against which
the instant appeal has been preferred.
15. Thus, it is evident that the instant intra-court appeal
has been filed on two counts – (i);questioning the order
passed by the learned Single Judge in dismissing the writ
petition on the ground of delay and laches as also
(ii).questioning the order passed by the administrative
authorities in imposing impugned punishments.
Argument of the learned counsel for the of appellant:
16. The learned counsel for the writ petitioner-appellant
has first argued questioning the order passed by the
learned Single Judge in dismissing the writ petition on
the ground of delay and laches and submitted that the
impugned cannot be said to be just and proper since the
learned Single Judge has not appreciated the fact that
the High Court being the constitutional Court and while
exercising the power conferred under Article 226 of the
Constitution of India is to consider the issue of
substantial justice and moreover it was required to
-8-
consider the issue on merit keeping the fact into
consideration that no third party right was created since
the dispute pertains to mandatory benefits due to
imposition of punishment of withholding of two annual
increments with cumulative effects.
17. The learned Single Judge has also not appreciated
the fact that the writ petitioner in the meanwhile has
retired from service on attaining the age of
superannuation but due to imposition of punishment of
two annual increments with cumulative effects, the
petitioner is being put to disadvantageous position in his
pensionary benefits and pension being the recurring
cause of action, the principle of delay and laches will not
be apply.
18. The learned counsel for the petitioner further
questioning the propriety of the order passed by the
disciplinary authority has submitted that the propriety of
the order of punishment needs to be appreciated by this
Court, in exercise of power conferred under Article 226 of
the Constitution of India, reason being that while
imposing the order of punishment the gross injustice has
been done to the petitioner as the petitioner at the
relevant time was working on the post of Jan Sewak
[Village Level Worker] and altogether three charges were
leveled against him.
-9-
19. The enquiry has been proceeded based upon that the
writ petitioner was asked to appear before the enquiry
officer. The petitioner has taken the defence by giving
reply therein. The enquiry officer has found charge nos. 1
and 2 not proved whereas charge no. 3 was found to be
proved and accordingly recommendation was made to the
delinquent employee to remain cautious in future by
making remark of warning.
20. The learned counsel appearing for the appellant has
submitted that charge no. 3, pertains to violation of
government rules i.e., in the matter of disbursal of cattle
in favour of beneficiaries under the scheme known as
„Integrated Rural Development Programme‟. It has been
contended that the writ petitioner has submitted specific
reply that work assigned to him during the relevant time
in the capacity of Village Level Worker was to collect
application from the beneficiary and submit the same
before the Block Development Officer [BDO]. He has not
having any duty for collection of money from the
concerned Branch of the Bank for the purpose of
disbursal of money in favour of beneficiaries. But even
then, the charge has been framed showing the conduct of
the petitioner to the effect that he has been assigned with
the duty to collect money from the bank and purchase
the cattle for the purpose of its distribution amongst the
– 10 –
beneficiaries. The contention has been raised that if no
such work is assigned, it cannot be terms as misconduct.
Therefore, the charge no. 3, which has been found to be
proved by the enquiry officer, cannot be said to be
proved. But the said issue since has not been adjudicated
by the writ Court in exercise of power conferred under
Article 226 of the Constitution of India, hence, the
instant intra court appeal has been filed so as to
appreciate the argument and the ground which could not
have been appreciated properly by the disciplinary
authority; appellate authority or even by the learned
Single Judge whereby the writ petition has been
dismissed on the ground of delay and laches without
entering into the merit of the issue.
Argument on behalf of the learned counsel for the
Respondents-State:
21. While on the other hand, Mr. Ratnesh Kumar,
learned SC (L&C)-I appearing for the respondents-State
has taken the following ground in defending the order
passed by the learned Single Judge.
22. It has been contended that the learned Single Judge
has not erred in passing the impugned order reason
being that it is the bounden duty of the litigant
concerned to approach the Court of law within a
reasonable period, but, herein the impugned order was
passed way back in the year 2006, against which the writ
– 11 –
petition has been filed in the year 2019 that is after lapse
of 13 years and after taking into consideration such
inordinate delay in approaching court of law, that is the
court of equity, which is having the discretionary power
and if in such circumstances, the writ petition has been
dismissed, the same cannot be suffer from an error.
23. The learned State counsel has further submitted that
there is no explanation having been furnished for such
inordinate delay and in absence thereof, if the learned
Single Judge has come to the conclusion that the writ
petition is barred by the principle of delay and laches,
which led the learned Single Judge in dismissing the writ
petition, it cannot be said to suffer from an error.
24. Learned counsel appearing for the State based upon
the aforesaid ground has submitted that the impugned
judgment passed by learned Single Judge suffers from no
error, and requires no interference by this Court.
25. Learned counsel appearing for the respondents-
State, in response to the argument advanced by learned
counsel for the writ petitioner-appellant on the propriety
of order passed by the administrative authorities
imposing the impugned punishment, has submitted by
referring to the order of punishment wherein it has come
on record that the charge no. 3 has been said to be
proved since as per the objective of the scheme, the cattle
– 12 –
were to be distributed amongst the beneficiaries instead
of distribution of money in cash. The same has been
treated to be gross misconduct on the part of the
petitioner who was working as Jan Sewak since the Jan
Sewak was involved in each and every stage of execution
of scheme, and as such it is incorrect on the part of the
petitioner to take the ground that the petitioner cannot
be said to have any involvement in the matter of
distribution of cattle or distribution of cash which is the
allegation against the appellant.
26. Learned State counsel based upon the aforesaid
ground has submitted that since the fact finding has
been arrived by the enquiry officer and as such it is
incorrect on the part of the learned counsel to take the
ground that the order of punishment so far as it relates
to proved charge i.e., charge no. 3, suffers from an error.
Analysis:
27. We have heard learned counsel for the parties, gone
across the finding recorded by the learned Single Judge
in the impugned order as also the original record, which
were called for by this Court, as would be evident from
order dated 12th December, 2024.
28. This Court before proceeding to examine the
propriety of the impugned order of punishment needs to
first refer the order passed by the learned Single Judge
– 13 –
wherein the writ petition has been dismissed on the sole
ground of delay and laches since the writ petition has
been filed after delay of 12 years from the date of passing
of impugned order of punishment.
29. There is no dispute of the proposition of law that the
writ court being the court of equity is to entertain the writ
petition, if the writ court is being approached within a
reasonable period of time.
30. It is also equally settled that in the proceeding under
Article 226 of the Constitution of India the principle of
limitation is not applicable but the delay and laches is
applicable so that the court of equity may not be
approached after inordinate delay. Reference in this
regard be made to the judgment rendered by the Hon’ble
Apex Court in the case of P.S. Sadasivaswamy v. State
of Tamil Nadu, (1975) 1 SCC 152 wherein at
paragraph-2, their Lordship have held as under:
“2. The main grievance of the appellant is that the
second respondent who was junior to him as Assistant
Engineer was promoted as Divisional Engineer in 1957
by relaxing the relevant rules regarding the length of
service necessary for promotion as Divisional Engineer
and that his claim for a similar relaxation was not
considered at that time. The learned Judge of the
Madras High Court who heard the writ petition was of
the view that the relaxation of the rules in favour of the
second respondent without considering the appellant’s
case was arbitrary. In view of the statement on behalf of
the Government that such relaxation was given only in
the case of overseas scholars, which statement was not
– 14 –
controverted, it is not possible to agree with the view of
the learned Judge. Be that as it may, if the appellant
was aggrieved by it he should have approached the
Court even in the year 1957, after the two
representations made by him had failed to produce any
result. One cannot sleep over the matter and come to the
Court questioning that relaxation in the year 1971.
There is the further fact that even after Respondents 3
and 4 were promoted as Divisional Engineers over the
head of the appellant he did not come to the Court
questioning it. There was a third opportunity for him to
have come to the Court when Respondents 2 to 4 were
again promoted as Superintending Engineers over the
head of the appellant. After fourteen long years because
of the tempting prospect of the Chief Engineership he
has come to the Court. In effect he wants to unscramble
a scrambled egg. It is very difficult for the Government to
consider whether any relaxation of the rules should
have been made in favour of the appellant in the year
1957. The conditions that were prevalent in 1957,
cannot be reproduced now. In any case as the
Government had decided as a matter of policy, as they
were entitled to do, not to relax the rules in favour of
any except overseas scholars it will be wholly pointless
to direct them to consider the appellant’s case as if
nothing had happened after 1957. Not only Respondent
2 but also Respondents 3 and 4 who were the
appellant’s juniors became Divisional Engineers in 1957,
apparently on the ground that their merits deserved
their promotion over the head of the appellant. He did
not question it. Nor did he question the promotion of his
juniors as Superintending Engineers over his head. He
could have come to the Court on every one of these three
occasions. A person aggrieved by an order of promoting
a junior over his head should approach the Court at
least within six months or at the most a year of such
promotion. It is not that there is any period of limitation
for the Courts to exercise their powers under Article 226
nor is it that there can never be a case where the Courts
– 15 –
cannot interfere in a matter after the passage of a
certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercise
their extraordinary powers under Article 226 in the case
of persons who do not approach it expeditiously for
relief and who stand by and allow things to happen and
then approach the Court to put forward stale claims and
try to unsettle settled matters. The petitioner’s petition
should, therefore, have been dismissed in limine.
Entertaining such petitions is a waste of time of the
Court. It clogs the work of the Court and impedes the
work of the Court in considering legitimate grievances as
also its normal work. We consider that the High Court
was right in dismissing the appellant’s petition as well
as the appeal.”
31. Further, the Hon’ble Apex Court in the case of New
Delhi Municipal Council v. Pan Singh, (2007) 9 SCC
278 by referring to the judgment rendered in the case
of Lipton India Ltd. v. Union of India, (1994) 6 SCC
524 has observed that:
“17. Although, there is no period of limitation provided
for filing a writ petition under Article 226 of
the Constitution of India, ordinarily, writ petition should
be filed within a reasonable time. (See Lipton India
Ltd. v. Union of India [(1994) 6 SCC 524] and M.R.
Gupta v. Union of India [(1995) 5 SCC 628 : 1995 SCC
(L&S) 1273 : (1995) 31 ATC 186].”
32. But it is also equally settled that where the principle
of delay and laches is to be made applicable has got no
straightjacket formula, as has been dealt with by the
Hon‟ble Apex Court in the case of State of Madhya
Pradesh & Ors Vs. Nandlal Jaiswal [(1986) 4 SCC
566], wherein by making reference of the principle which
– 16 –
is to be followed in entertaining a writ petition even after
delay, the Hon‟ble Apex Court has been pleased to hold at
paragraph 24 that the foremost factor where there is
inordinate and unexplained delay and third party rights
are created in the intervening period, the High Court
would decline to interfere. The other factor which is to be
borne in mind is whether court‟s interference is likely to
cause confusion and public inconvenience and bring in
new injustices. Relief could also be denied even on delay
if the official respondents are hopelessly inconvenient in
defending their action for lack of relevant document and
to establish their defence to the full satisfaction to the
court. For ready reference, the relevant paragraph 24 of
the judgment is quoted as under:
“24. Now, it is well settled that the power of the High Court
to issue an appropriate writ under Article 226 of the
Constitution is discretionary and the High Court in the
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 in filing a writ
petition and such delay is not satisfactorily explained, the
High Court may decline to intervene and grant relief in the
exercise of its writ jurisdiction. The evolution of this rule of
laches or delay is premised upon a number of factors. The
High Court does not ordinarily permit a belated resort to the
extraordinary remedy under the writ jurisdiction because it is
likely to cause confusion and public inconvenience and bring
in its train new injustices. The rights of third parties may
intervene and if the writ jurisdiction is exercised on a writ
petition filed after unreasonable delay, it may have the effect
of inflicting not only hardship and inconvenience but also
– 17 –
injustice on third parties. When the writ jurisdiction of the
High Court is invoked, unexplained delay coupled with the
creation of third party rights in the meanwhile is an
important factor which always weighs with the High Court in
deciding whether or not to exercise such jurisdiction. We do
not think it necessary to burden this judgment with reference
to various decisions of this Court where it has been
emphasised time and again that where there is inordinate
and unexplained delay and third party rights are created in
the intervening period, the High Court would decline to
interfere, even if the State action complained of is
unconstitutional or illegal. We may only mention in the
passing two decisions of this Court one in Ramana Dayaram
Shetty v. International Airport Authority of India [(1979) 3
SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR 1014] and the
other in Ashok Kumar Mishra v. Collector [(1980) 1 SCC 180 :
AIR 1980 SC 112 : (1980) 1 SCR 491] . We may point out that
in R.D. Shetty case, even though the State action was held to
be unconstitutional as being violative of Article 14 of the
Constitution, this Court refused to grant relief to the petitioner
on the ground that the writ petition had been filed by the
petitioner more than five months after the acceptance of the
tender of the fourth respondent and during that period, the
fourth respondent had incurred considerable expenditure,
aggregating to about Rs 1.25 lakhs, in making arrangements
for putting up the restaurant and the snack bar. Of course,
this rule of laches or delay is not a rigid rule which can be
cast in a strait jacket formula, for there may be cases where
despite delay and creation of third party rights the High
Court may still in the exercise of its discretion interfere and
grant relief to the petitioner. But, such cases where the
demand of justice is so compelling that the High Court would
be inclined to interfere in spite of delay or creation of third
party rights would by their very nature be few and far
between. Ultimately it would be a matter within the
discretion of the court; ex hypothesi every discretion must be
exercised fairly and justly so as to promote justice and not to
defeat it.
– 18 –
33. The Hon‟ble Apex Court has further in the case of
Ram Autar Singh Yadav Vs. The State of Uttar
Pradesh & Ors. passed in Civil Appeal No. 13806 of
2024 arising out of SLP (C) No. 26568 of 2023 has been
pleased to take into consideration the law laid down in
the case of State of Madhya Pradesh & Ors Vs.
Nandlal Jaiswal (supra) and came to the conclusion at
paragraph 21 by making reference of three conditions
whereon relief could be declined. The three such
conditions are quoted as under:
I. In a case of unexplained delay and laches is the
accrual of a parallel right in favour of third party.
II. Grant of relief in a belated claim is likely to cause
confusion and public inconvenience like unsettling
matters which have long settled.
III. If by reason of the delay, the official respondents
are hopelessly inconvenienced in defending their action
for lack of the relevant records and to establish their
defence to the full satisfaction of the court.
34. For ready reference, the paragraph 21 of the
judgment rendered in the case of Ram Autar Singh
Yadav Vs. The State of Uttar Pradesh & Ors. (supra)
is quoted as under:
“21. Taking a cue from the above, we can safely
conclude that the foremost factor based whereon relief
could be declined in a case of unexplained delay and
laches is the accrual of a parallel right in favour of third
party. The other vital factor to be borne in mind is
whether grant of relief in a belated claim is likely to
cause confusion and public inconvenience like unsettling
matters which have long settled. Relief could also be
– 19 –
denied if by reason of the delay, the official respondents
are hopelessly inconvenienced in defending their action
for lack of the relevant records and to establish their
defence to the full satisfaction of the court.”
35. The Hon‟ble Apex Court has further considered the
factual aspect of the case governing the case of Ram
Autar Singh Yadav Vs. The State of Uttar Pradesh &
Ors. (supra) as would be evident from paragraph 22
wherein by taking into consideration the conditions as
quoted at paragraph 21, as quoted and referred
hereinabove, the Hon‟ble Apex Court has come to the
conclusion that the three conditions have been meted out
and as such the order of the High Court wherein the
prayer to interfere in exercise of extraordinary
jurisdiction has been refused by dismissal of the writ
petition filed under Article 226 of the Constitution of
India has been quashed and set aside and the matter was
remitted before the High Court for passing the order
afresh. For ready reference, paragraph 22 of the
judgment is quoted as under:
“22. In the present case, neither is there accrual of any
parallel right of a third party nor could grant of relief
cause confusion and public inconvenience. There has
also been no occasion for the State authorities to claim
that they are in any manner handicapped to defend
their action. On the contrary, this is a case where the
appellant sought to explain the belated approach by
referring to his repeated unyielding persuasions, which
the High Court brushed aside mechanically, without
appreciating that the appellant had invoked its writ
– 20 –
jurisdiction for enforcement of his Fundamental Rights
under Articles 14 and 21 of the Constitution. When a
litigant approaches a high court invoking its high
prerogative writ jurisdiction with a petition under Article
226 of the Constitution alleging that the impugned State
action is in breach of his Fundamental Right and claims
that the breach be bridged by issuing appropriate
writ/order/direction as distinguished from a claim for
enforcement of a statutory right, it partakes the
character of a duty on the part of such high court to
enforce the right breached as the guardian of the
Constitution. Law is well-settled that there is no loss of
a Fundamental Right for non-exercise thereof and also
that there cannot be waiver of a Fundamental Right.
Hence, no argument can commend acceptance that a
litigant seeking enforcement of his Fundamental Right
should be declined relief in all cases of a belated
approach. Notwithstanding delay, which might not have
been explained to the full satisfaction of a high court, we
hold that in cases where a high court finds that facts, as
they have been presented, are not seriously disputed,
no further investigation into facts is required to be made,
the relief claimed in the petition was otherwise due to
the writ petitioner and the same would have followed as
a matter of course and been granted had he approached
the high court without delay, it would be iniquitous and
inappropriate to deny relief for no better reason than
that the relief has been belatedly claimed.”
36. Again, the Hon‟ble Apex Court in the case of
Dharnidhar Mishra (D) and Anr. Vs. State of Bihar &
Ors [(2024) 10 SCC 605] has taken into consideration
the dismissal of the writ petition by the learned Single
Judge of the high court which was dismissed only on the
ground of delay and in appeal, the appellate court
disposed of the appeal asking the appellant to file an
– 21 –
application before the authority concerned for
disbursement of the amount of compensation. The
Hon‟ble Apex Court has taken into consideration, based
upon the factual aspect governing the said case, two
things, i.e., the High Court in its impugned order
[Dharnidhar Mishra v. State of Bihar, 2023 SCC
OnLine Pat 11321] has stated that the appellant herein
has been informed about the value of the land assessed
at Rs 4,68,099. Secondly, the order of the High Court
could be said to be a non-speaking order. For ready
reference, paragraph 11 of the judgment is quoted as
under:
“11. We take notice of two things: first, the High Court
in its impugned order has stated that the appellant
herein has been informed about the value of the land
assessed at Rs 4,68,099. We fail to understand on what
basis this figure has been arrived at; at what point of
time this amount came to be assessed; and the basis for
the assessment of such amount. Secondly, the order of
the High Court could be said to be a non-speaking order.
Although at this stage, the learned counsel appearing
for the State of Bihar submitted that it was an order
obtained with the consent of the parties, yet there is
nothing to indicate that any consent was given by the
appellant herein to pass such an order.”
37. The consideration has been given so far as the first
thing that the High Court should have enquired with the
State is as to why in the year 1977 itself, that is, the year
in which the land came to be acquired, the award for
compensation was not passed. The High Court should
– 22 –
have enquired why it took forty-two years for the State to
determine the figure of Rs 4,68,099/-. The Hon‟ble Apex
Court has shown its disappointment that while disposing
of the appeal and hold that rejection of the writ petition
filed on the ground of delay cannot be said to be just and
proper in view of the fact that the amount of
compensation being the constitutional right cannot be
taken away from the concerned party.
38. The Hon‟ble Apex Court further at paragraph 23 has
been pleased to hold that by making reference of
judgment passed in the case of Vidya Devi v. State of
H.P. (2020) 2 SCC 569] held that delay and laches
cannot be raised in a case of a continuing cause of action
or if the circumstances shock the judicial conscience of
the court. The condonation of delay is a matter of judicial
discretion, which must be exercised judiciously and
reasonably in the facts and circumstances of the case. It
has been held that it would depend upon the breach of
fundamental rights, and the remedy claimed, and when
and how the delay arose. There is no period of limitation
prescribed for the courts to exercise their constitutional
jurisdiction to do substantial justice.
39. In paragraph 24 of the said judgment by making
reference of case of P.S. Sadasivaswamy v. State of
T.N., (1975) 1 SCC 152, it has been held that in a case
– 23 –
where the demand for justice is so compelling, a
constitutional court would exercise its jurisdiction with a
view to promote justice, and not defeat it. The relevant
paragraphs of the judgment are being quoted as under:
“12.The first thing that the High Court should have
enquired with the State is as to why in the year 1977
itself, that is, the year in which the land came to be
acquired, the award for compensation was not passed.
The High Court should have enquired why it took forty-
two years for the State to determine the figure of Rs
4,68,099. The High Court should also have asked the
State the basis of the determination of the amount
towards compensation. It is a well-settled position of
law that after the award towards compensation is
passed, if the owner of the land is not satisfied with the
quantum, he can even file an appeal for the
enhancement of the same. The High Court proceeded on
the footing that the amount of Rs 4,68,099 has been
assessed and it is now for the appellant to file an
appropriate application and get the amount disbursed in
his favour.
23. We regret to state that the learned Single Judge
[Dharnidhar Mishra v. State of Bihar, 2019 SCC OnLine
Pat 3412] of the High Court did not deem fit even to
enquire with the State whether just and fair
compensation was paid to the appellant or not. The
learned Single Judge [Dharnidhar Mishra v. State of
Bihar, 2019 SCC OnLine Pat 3412] rejected the writ
petition only on the ground of delay. As held by this
Court in Vidya Devi v. State of H.P. [Vidya Devi v. State
of H.P., (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799] ,
delay and laches cannot be raised in a case of a
continuing cause of action or if the circumstances shock
the judicial conscience of the court. The condonation of
delay is a matter of judicial discretion, which must be
exercised judiciously and reasonably in the facts and
circumstances of the case. As held by this Court, it
– 24 –
would depend upon the breach of fundamental rights,
and the remedy claimed, and when and how the delay
arose. There is no period of limitation prescribed for the
courts to exercise their constitutional jurisdiction to do
substantial justice.”
40. It is evident from the aforesaid judgments that the
principle of delay and laches is the important factor in
entertaining the writ petition by high court in exercise of
power conferred under Article 226 of the Constitution of
India. But, as has been held by Hon‟ble Apex Court that
while considering the principle of delay and laches,
without entering into the merit of the case, three
conditions, as has been held by Hon‟ble Apex Court in
the case of State of Madhya Pradesh & Ors Vs.
Nandlal Jaiswal (supra) as quoted above, is required to
be taken into consideration.
41. In the backdrop of aforesaid judicial pronouncement,
this Court is now proceeding to examine the factual
aspect of the matter so as to come to the conclusion that
whether the judgment passed by learned Single Judge
dismissing the writ petition solely on the ground of delay
and laches requires interference or not?
42. Admitted fact is that the petitioner who was holding
the post of Village Level Worker (Jan Sewak) was
assigned with the duty of implementation of government
scheme for the purpose of benefitting the beneficiaries
under various social welfare scheme. A departmental
– 25 –
proceeding was initiated on the charge of (i).dereliction of
duty and irregularities in Government work; (ii).
misleading the higher authorities and (iii).violation of
Government Rules. The charge in verbatim has been
quoted above.
43. The enquiry officer-cum-Sub Divisional Officer,
Gumla, after enquiry, has found the charges leveled
against the appellant not proved. But disagreeing with
the enquiry report, the respondent no. 3 asked
respondent no. 4 to re-enquire the matter, whereupon,
the respondent no. 4 submitted the report holding charge
nos. 1 and 2 not proved whereas in respect of charge no.
3, the appellant was warned to be vigilant.
44. Thereafter, vide office order dated 13.02.1992, the
respondent no. 4 imposed a punishment of withholding
of five annual increments and salary for the period of
suspension, against which, the appellant preferred
departmental appeal, which was dismissed vide order
dated 07.09.1993.
45. Being aggrieved the appellant filed CWJC No. 1953 of
1994(R), which was dismissed, against which the
appellant preferred LPA. No. 288 of 1995(R). The Division
Bench taking note of the fact has held that in case the
disciplinary authority differs with the report of the
enquiry officer, he has to assign reason in his order for
– 26 –
differing with the same and if the punishment is not
minor then an opportunity should be afforded to the
aggrieved. But herein neither any reason for differing
with the disciplinary authority has been assigned nor any
opportunity was provided to the appellant to appear
before the disciplinary authority. Accordingly, the intra-
court was allowed vide order dated 10.07.1996 and the
matter was remitted to the disciplinary authority asking
him to start the proceeding afresh from the stage of
enquiry report after providing opportunity of being heard
to the appellant.
46. It appears from the record that thereafter the
respondent no. 3 modified the order of punishment vide
order dated 22.09.1997 reducing the punishment to
withholding of two annual increments and salary during
the period of suspension, against which the petitioner
preferred departmental appeal which was dismissed vide
order dated 05.06.2006.
47. It further appears that although the impugned order
was passed in the year 2006 but the appellant filed the
writ petition in the year 2019 being W.P.(S) No. 4477 of
2019, which was dismissed solely on the ground of delay
and laches admittedly without deliberating the issues on
merit but in the meantime, the appellant retired from
services on attaining the age of superannuation.
– 27 –
48. The question which was raised before the learned
Single Judge that although delay and laches is there but
after the separation from service on attaining the age of
superannuation, the punishment of two annual
increments with cumulative effect is affecting the
pensionary right of the petitioner by deduction of pay-
scale by two increments which is cumulative in nature
but the learned Single Judge, by applying the general
principle of delay and laches even without taking into
consideration as has been laid down by Hon‟ble Apex
Court in the case of State of Madhya Pradesh & Ors
Vs. Nandlal Jaiswal (supra) has dismissed the writ
petition solely on the ground of delay and laches as the
writ petition has been filed after delay of 12 years.
49. Further it is evident that the fact about accrual of
third-party right is not the case herein as has been
admitted by learned State counsel. Further, it is also not
the case herein that grant of relief in a belated claim is
likely to cause confusion and public inconvenience. So
far third yardstick that if by reason of the delay, the
official respondents are hopelessly inconvenienced in
defending their action for lack of the relevant records and
to establish their defence to the full satisfaction of the
court it is also not the case herein since, the original
– 28 –
enquiry proceeding is produced before the Court by the
learned State counsel on being called upon by this Court.
50. Therefore, this Court is of the view that before
dismissal of the writ petition on the ground of delay of 12
years, the learned Single Judge ought to have taken into
consideration with respect of three parameters, as has
been held in the case of State of Madhya Pradesh &
Ors Vs. Nandlal Jaiswal (supra). The learned
Single Judge instead of doing so, applied the judgment
passed in the case of Karnataka Power Corporation
Ltd. Vs. K. Thangamppan [(2006) 4 SCC 322]; Chennai
Metropolitan Water Supply and Sewerage Board V.
T.T. Murali Babu [(2024) 4 SCC 108] and Chairman,
State Bank of India Vs. M J James [(2022) 2 SCC 301]
and accordingly dismissed the writ petition.
51. We have already expressed our view hereinabove that
the general principle of applicability of delay and laches
is already there but it is also settled that the applicability
of delay and laches is having no straightjacket formula,
which has even been taken note by learned Single Judge
while making reference of the judgment rendered by
Hon‟ble Apex Court in the case of Chairman, State
Bank of India Vs. M J James (supra) wherein
proposition has been laid down at paragraph 36 that
what is a reasonable time is not to be put in a straitjacket
– 29 –
formula or judicially codified in the form of days, etc. as it
depends upon the facts and circumstances of each case.
A right not exercised for a long time is non-existent.
Doctrine of delay and laches as well as acquiescence are
applied to non-suit the litigants who approach the
court/appellate authorities belatedly without any
justifiable explanation for bringing action after
unreasonable delay.
52. The said principle is to be applied coupled with the
principle laid down in the case of State of Madhya
Pradesh & Ors Vs. Nandlal Jaiswal (supra) wherein
three conditions has been enumerated, as referred above.
But the learned Single Judge has not gone into these
aforesaid aspect of the matter and further the learned
Single Judge has also not appreciated the fact that the
writ petitioner during pendency of the writ petition has
retired from service on attaining the age of
superannuation due to the subsistence of the order of
punishment, he is put to disadvantageous position day
by day since he is getting the pension on reduced pay-
scale, which is recurring cause of action.
53. The law is well settled that the principle of delay and
laches is not to be made applicable if the cause of action
is recurring particularly in the case of pension.
– 30 –
54. “Recurring” means suffering of the litigant,
particularly, the public servant if the suffering is
continuing day by day, the same will be said to
be recurring cause of action. Recurring/successive
wrongs” are those which occur periodically, each wrong
giving rise to a distinct and separate cause of action.
A recurring or successive wrong, occurs when successive
acts, each giving rise to a distinct and separate cause of
action, are committed. Each act, in itself wrongful,
constitutes a separate cause of action for sustaining a
claim or a complaint and therefore delay and laches will
not be applicable in such case. Reference in this regard,
be made to the judgment rendered by the Hon’ble Apex
Court in the case of M.R. Gupta v. Union of
India [(1995) 5 SCC 628], wherein at paragraph 5, it
has been held as under:
“5. Having heard both sides, we are satisfied that the
Tribunal has missed the real point and overlooked the
crux of the matter. The appellant’s grievance that his
pay fixation was not in accordance with the rules, was
the assertion of a continuing wrong against him which
gave rise to a recurring cause of action each time he
was paid a salary which was not computed in
accordance with the rules. So long as the appellant is in
service, a fresh cause of action arises every month when
he is paid his monthly salary on the basis of a wrong
computation made contrary to rules. It is no doubt true
that if the appellant’s claim is found correct on merits,
he would be entitled to be paid according to the properly
fixed pay scale in the future and the question of
– 31 –
limitation would arise for recovery of the arrears for the
past period. In other words, the appellant’s claim, if any,
for recovery of arrears calculated on the basis of
difference in the pay which has become time barred
would not be recoverable, but he would be entitled to
proper fixation of his pay in accordance with rules and
to cessation of a continuing wrong if on merits his claim
is justified. Similarly, any other consequential relief
claimed by him, such as, promotion etc. would also be
subject to the defence of laches etc. to disentitle him to
those reliefs. The pay fixation can be made only on the
basis of the situation existing on 1-8-1978 without
taking into account any other consequential relief which
may be barred by his laches and the bar of limitation. It
is to this limited extent of proper pay fixation the
application cannot be treated as time barred since it is
based on a recurring cause of action.”
55. Further, the Hon’ble Apex Court in the case of Union
of India v. Tarsem Singh [(2008) 8 SCC 648] at
paragraph 4 held as under:
4. The principles underlying continuing wrongs
and recurring/successive wrongs have been applied to
service law disputes. A “continuing wrong” refers to a
single wrongful act which causes a continuing injury.
“Recurring/successive wrongs” are those which occur
periodically, each wrong giving rise to a distinct and
separate cause of action. This Court in Balakrishna
Savalram Pujari Waghmare v. Shree Dhyaneshwar
Maharaj Sansthan [AIR 1959 SC 798] explained the
concept of continuing wrong (in the context of
Section 23 of the Limitation Act, 1908 corresponding to
Section 22 of the Limitation Act, 1963) : (AIR p. 807,
para 31)“31. … It is the very essence of a continuing wrong
that it is an act which creates a continuing source of
injury and renders the doer of the act responsible and
liable for the continuance of the said injury. If the
– 32 –
wrongful act causes an injury which is complete,
there is no continuing wrong even though the damage
resulting from the act may continue. If, however, a
wrongful act is of such a character that the injury
caused by it itself continues, then the act constitutes
a continuing wrong. In this connection, it is necessary
to draw a distinction between the injury caused by
the wrongful act and what may be described as the
effect of the said injury.”
56. The law is already settled by Hon’ble Apex Court that
the pension will be said to be recurring cause, reference
in this regard be made to the judgment rendered in the
case of M.L. Patil (Dead) through Legal
Representatives v. State of Goa, (2023) 1 SCC 660.
For ready reference the relevant paragraph of the
aforesaid judgment is being quoted hereunder as:–
“6. As such, the High Court may be right and/or
justified in denying any salary for the period of two
extra years to the writ petitioners if they would have
continued in service, on the ground of delay. However,
as far as the pension is concerned, it is a continuous
cause of action. There is no justification at all for
denying the arrears of pension as if they would have
been retired/superannuated at the age of 60 years.
There is no justification at all by the High Court to deny
the pension at the revised rates and payable only from
1-1-2020. Under the circumstances, the impugned
judgment and order [Laxman J. Chavan v. State of
Goa, 2020 SCC OnLine Bom 236] passed by the High
Court is required to be modified to the aforesaid extent.”
57. This issue has also been considered by Hon’ble Apex
Court in the case of Rushibhai Jagdishbhai
Pathak v. Bhavnagar Municipal Corporation, 2022
– 33 –
SCC OnLine SC 641 wherein at paragraph 10 it has
been held which is being referred and quoted hereunder
as:–
“10. At the same time, the law recognises a „continuing‟
cause of action which may give rise to a „recurring‟
cause of action as in the case of salary or pension. This
Court in M.R. Gupta v. Union of India10, has held that so
long as the employee is in service, a fresh cause of
action would arise every month when they are paid
their salary on the basis of a wrong computation made
contrary to the rules. If the employee’s claim is found to
be correct on merits, they would be entitled to be paid
according to the properly fixed pay-scale in future and
the question of limitation would arise for recovery of the
arrears for the past period. The Court held that the
arrears should be calculated and paid as long as they
have not become time-barred. The entire claim for the
past period should not be rejected.”
58. This Court, on the basis of discussion made herein
above and further taking in to consideration the settled
position of law as rendered by the Hon‟ble Apex Cout
particularly in the case of State of Madhya Pradesh &
Ors Vs. Nandlal Jaiswal (supra), is of view that the
order passed by the learned Single Judge needs to be
interfered with.
59. Accordingly, the order/judgment dated 16.08.2024
passed by learned Single Judge in W.P.(S) No. 4477 of
2019 is hereby quashed and set aside.
60. Now, the question arises as to whether the writ
petition be remitted before the learned Single Judge for
– 34 –
adjudication of the matter on merit afresh or this Court is
competent enough to decide the issue on merit?
61. Admittedly, the writ petitioner is facing the trauma of
departmental proceeding since the year 1991 i.e., from
the date of initiation of departmental proceeding and
since then it has lapsed about 33 years. Further, the writ
petitioner-appellant in the meanwhile has also retired
from service on attaining the age of superannuation.
62. The law is well-settled that the intra-court appeal is
in furtherance of the writ proceeding and it is not to be
taken up as a regular appeal. Reference in this regard
may be made to the judgment rendered by the Hon’ble
Apex Court in the case of Baddula Lakshmaiah v. Sri.
Anjaneya Swami Temple, (1996) 3 SCC 52. Relevant
paragraph of the said judgment reads as under:
“2. … A letters patent appeal, as permitted under the
Letters Patent, is normally an intra-court appeal
whereunder the Letters Patent Bench, sitting as a
Court of Correction, corrects its own orders in execise
of the same jurisdiction as was vested in the Single
Bench. …”
63. This Court, therefore, is of the view that since the
court of intra-court appeal is in furtherance of the writ
proceeding, as has been held by Hon‟ble Apex Court in
the case of Baddula Lakshmaiah v. Sri. Anjaneya
Swami Temple (supra), the issue needs to be decided on
merit i.e., regarding the propriety of the impugned order
– 35 –
of punishment passed by the disciplinary authority dated
22.09.1997 and appellate order dated 05.06.2006, by
which two annual increments have been directed to be
withheld with cumulative effect, in the intra-court appeal
itself instead of remitting the matter back to learned
Single Judge to decide the matter on merit.
64. This Court, therefore, in order to decide the matter
on merit, has again gone into the factual aspect of the
matter wherefrom it is evident that in this case case two
enquiry proceedings were initiated against the appellant
for the same set of charge.
65. In the first enquiry, the enquiry officer has not found
any of the charges proved. But disagreeing with the
enquiry report, the disciplinary authority asked other
enquiry officer to re-enquire the matter, in turn, the
enquiry officer submitted the report holding charge nos. 1
and 2 not proved whereas in respect of charge no. 3, the
appellant was warned to be vigilant.
66. Thereafter, vide office order dated 13.02.1992, the
respondent no. 4 imposed a punishment of withholding
of five annual increments and denied for the salary of the
period of suspension, against which, the appellant
preferred departmental appeal, which was dismissed vide
order dated 07.09.1993.
– 36 –
67. Being aggrieved with the order passed by the
disciplinary authority as well as the appellate authority,
the appellant invoked the writ jurisdiction of this Court
by filing CWJC No. 1953 of 1994(R), which was
dismissed, against which the appellant preferred intra-
court appeal, being LPA. No. 288 of 1995, which was
allowed vide order dated 10.07.1996 and the matter was
remitted to the disciplinary authority asking him to start
the proceeding afresh from the stage of enquiry report
after providing opportunity of being heard to the
appellant and pass a reasoned order.
68. Accordingly, the respondent no. 3 modified the order
of punishment vide order dated 22.09.1997 and reduced
the same to withholding of two annual increments and
salary during the period of suspension, against which the
petitioner preferred departmental appeal which was
dismissed vide order dated 05.06.2006.
69. Herein, it is pertinent to note that general principle
while disagreeing with the enquiry report is that show
cause notice is required to be issued with reasons for
such disagreement, but it was not followed and further
opportunity of hearing is required to be afforded to the
delinquent but that principle has also not been followed,
therefore the Co-ordinate Division Bench remitted the
said matter to the disciplinary authority asking to start
– 37 –
the proceeding afresh from the stage of enquiry report
after providing opportunity of being heard to the
appellant and pass a reasoned order.
70. In the disciplinary proceeding, the power of enquiry
officer can also be exercised by the disciplinary authority
or such power can be delegated to the enquiry officer. If
the power of enquiry officer is also being exercised by the
disciplinary authority, then there is no question of giving
opportunity of hearing by the disciplinary authority
before passing the order of punishment. But if the
disciplinary authority is delegating the power to conduct
the enquiry to an officer said to be enquiry officer and if
any finding is being recorded by the enquiry officer and
on receipt of it the disciplinary authority can accept or
reject it. In case of acceptance the order of punishment is
to be passed and in such circumstances, if requires the
second show cause notice is to be issued to the
delinquent employee. But if the enquiry officer has found
none of the charges proved then in such circumstances
the disciplinary authority can impose punishment but as
per the requirement after giving opportunity to the
delinquent employee with the difference of opinion so
recorded by the disciplinary authority which is required
to be given in black and while along with the specific
reason(s) and the same is to be provided to the
– 38 –
delinquent employee so that he may give reply in his
defence, thereafter, only the order of punishment is to be
passed.
71. It needs to refer herein that the day when the order
of punishment dated 22.09.1997 was passed the said law
was not pronounced by Hon‟ble Apex Court rather the
same was passed by Hon‟ble Apex Court in the case of
Punjab National Bank & Ors Vs. Kunj Behari Misra
[(1998) 7 SCC 84], wherein it has been held as under:
17. These observations are clearly in tune with the
observations in Bimal Kumar Pandit case [AIR 1963 SC
1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier
and would be applicable at the first stage itself. The
aforesaid passages clearly bring out the necessity of the
authority which is to finally record an adverse finding to
give a hearing to the delinquent officer. If the enquiry
officer had given an adverse finding, as per Karunakar
case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993)
25 ATC 704] the first stage required an opportunity to be
given to the employee to represent to the disciplinary
authority, even when an earlier opportunity had been
granted to them by the enquiry officer. It will not stand
to reason that when the finding in favour of the
delinquent officers is proposed to be overturned by the
disciplinary authority then no opportunity should be
granted. The first stage of the enquiry is not completed
till the disciplinary authority has recorded its findings.
The principles of natural justice would demand that the
authority which proposes to decide against the
delinquent officer must give him a hearing. When the
enquiring officer holds the charges to be proved, then
that report has to be given to the delinquent officer who
can make a representation before the disciplinary
authority takes further action which may be prejudicial
– 39 –
to the delinquent officer. When, like in the present case,
the enquiry report is in favour of the delinquent officer
but the disciplinary authority proposes to differ with
such conclusions, then that authority which is deciding
against the delinquent officer must give him an
opportunity of being heard for otherwise he would be
condemned unheard. In departmental proceedings,
what is of ultimate importance is the finding of the
disciplinary authority.
72. In the instant case the disciplinary authority has
imposed the punishment of five annual increments upon
the petitioner even though the charge was not found to
be proved and further no difference of opinion has been
shown by giving reason of difference, which was the
reason for quashing of the order of punishment in the
intra-court appeal being LPA. No. 288 of 1995.
Subsequent thereto, the second enquiry was initiated in
which two of the charges have not been found to be
proved whereas charge no. 3 has been found to be
proved. The enquiry officer has passed fresh order
inflicting stoppage of two annual increments with
cumulative effect vide order dated 22.09.1997, which was
challenged by way of filing departmental appeal that was
dismissed vide appellate order dated 05.06.2006.
73. The writ petition aggrieved thereof again invoked the
writ jurisdiction of this Court conferred under Article 226
of the Constitution of India by filing writ petition being
W.P.(S) No. 4477 of 2019, which was dismissed.
– 40 –
74. This Court before entering into the legality and
propriety of the order of punishment needs to refer herein
that the departmental proceeding is to be initiated
against the delinquent employee if there is any
misconduct.
75. Misconduct has been defined that any conduct
contrary to the assigned duty/conduct if have been
performed, the disciplinary authority has got right to
initiate departmental proceeding to deal with such
employee.
76. The Hon’ble Apex Court in the case of State of
Punjab and Ors. Vrs. Ram Singh Ex-Constable,
reported in (1992) 4 SCC 5, has interpreted the word
‘misconduct’. The relevant paragraphs thereof are being
referred hereinbelow for ready reference:-
“”5. Misconduct has been defined in Black’s Law
Dictionary, Sixth Edition at page 999 thus:
“A transgression of some established and definite rule of
action, a forbidden act, a dereliction from duty, unlawful
behavior, wilful in character, improper or wrong
behavior, its synonyms are misdemeanor, misdeed,
misbehavior, delinquency, impropriety, mismanagement,
offense, but not negligence or carelessness.”
Misconduct in office has been defined as:
“Any unlawful behavior by a public officer in relation to
the duties of his office, wilful in character. Term
embraces acts which the office holder had no right to
perform, acts performed improperly, and failure to act in
the face of an affirmative duty to act.”
– 41 –
P. Ramanatha Aiyar’s Law Lexicon, Reprint Edition
1987 at page 821 defines ‘misconduct’ thus:
“The term misconduct implies a wrongful intention, and
not a mere error of judgment. Misconduct is not
necessarily the same thing as conduct involving moral
turpitude. The word misconduct is a relative term, and
has to be construed with reference to the subject matter
and the context wherein the term occurs, having regard
to the scope of the Act or statute which is being
construed. Misconduct literally means wrong conduct or
improper conduct. In usual parlance, misconduct means
a transgression of some established and definite rule of
action, where no discretion is left, except what necessity
may demand and carelessness, negligence and
unskilfulness are transgressions of some established,
but indefinite, rule of action, where some discretion is
necessarily left to the actor. Misconduct is a violation of
definite law; carelessness or abuse of discretion under
an indefinite law. Misconduct is a forbidden act;
carelessness, a forbidden quality of an act, and is
necessarily indefinite. Misconduct in office may be
defined as unlawful behaviour or neglect by a public
officer, by which the rights of a party have been
affected.”
6. Thus, it could be seen that the word ‘misconduct’
though not capable of precise definition, on reflection
receives its connotation from the context, the
delinquency in its performance and its effect on the
discipline and the nature of the duty. It may involve
moral turpitude, it must be improper or wrong
behaviour; unlawful behaviour, wilful in character;
forbidden act, a transgression of established and
definite rule of action or code of conduct but not mere
error of judgment, carelessness or negligence in
performance of the duty; the act complained of bears
forbidden quality or character. Its ambit has to be
– 42 –
construed with reference to the subject matter and the
context wherein the term occurs, regard being had to the
scope of the statute and the public purpose it seeks to
serve. –.”
77. Further, the Hon‟ble Apex Court in the case of M.M.
Malhotra v. Union of India, (2005) 8 SCC 351 has
observed that misconduct must be improper or wrong
behaviour, unlawful behaviour, wilful in character,
forbidden act, a transgression of established and definite
rule of action or code of conduct but not mere error of
judgment, carelessness or negligence in performance of
the duty; the act complained of bears forbidden quality or
character, for ready reference the relevant paragraph are
being quoted as under:
17. The range of activities which may amount to acts which
are inconsistent with the interest of public service and not
befitting the status, position and dignity of a public servant
are so varied that it would be impossible for the employer to
exhaustively enumerate such acts and treat the categories of
misconduct as closed. It has, therefore, to be noted that the
word “misconduct” is not capable of precise definition. But at
the same time though incapable of precise definition, the
word “misconduct” on reflection receives its connotation from
the context, the delinquency in performance and its effect on
the discipline and the nature of the duty. The act complained
of must bear a forbidden quality or character and its ambit
has to be construed with reference to the subject-matter and
the context wherein the term occurs, having regard to the
scope of the statute and the public purpose it seeks to serve.
19. In Baldev Singh Gandhi v. State of Punjab [(2002) 3
SCC 667] it was held that the expression “misconduct”
means unlawful behaviour, misfeasance, wrong
conduct, misdemeanour, etc.
– 43 –
20. Similarly, in State of Punjab v. Ram Singh Ex.
Constable [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : AIR
1992 SC 2188] it was held that the term “misconduct”
may involve moral turpitude. It must be improper or
wrong behaviour, unlawful behaviour, wilful in
character, forbidden act, a transgression of established
and definite rule of action or code of conduct but not
mere error of judgment, carelessness or negligence in
performance of the duty; the act complained of bears
forbidden quality or character.
21. “Misconduct” as stated in Batt’s Law of Master and
Servant (4th Edn. at p. 63) “comprised positive acts and
not mere neglects or failures”. The definition of the word
as given in Ballentine’s Law Dictionary (148th Edn.)
is:”A transgression of some established and definite rule
of action, where no discretion is left except what
necessity may demand, it is a violation of definite law, a
forbidden act. It differs from carelessness.”
78. Thus, it is evident from the aforesaid proposition laid
down that the misconduct will be said to have committed
by the public servant, if any conduct which is contrary to
the discipline would be committed in course of discharge
of duty. The Hon‟ble Apex Court further held that the
word ‘misconduct’ though not capable of precise
definition, on reflection receives its connotation from the
context, the delinquency in its performance and its effect
on the discipline and the nature of the duty.
79. The reference of the aforesaid judgment has been
given herein for the particular purpose since the
appellant has raised the ground in his reply filed in
defence that he was not having assigned duty to either
– 44 –
purchase cattle or disburse in favour of beneficiaries
rather the writ petitioner has made out the defence that
in the capacity of Jan Sewak his only duty was to collect
the form of the beneficiaries and submit it to the office of
Block Development Officer.
80. This Court has posed a specific question to the
learned State Counsel that what is the basis of framing of
charge no. 3 against the petitioner while working as Jan
Sewak and whether he failed in discharging the duty said
to be assigned in his favour.
81. Learned State Counsel has fair enough to submit
that there is no such duty said to be assigned in favour of
the petitioner [Jan Sewak] as given in charge no. 3. Such
submission has been made based upon the original
record available with him.
82. The question therefore would be that if such duty
has not been assigned to the delinquent i.e., for disbursal
of money from the bank or to purchase the cattle for the
purpose of its distribution amongst the beneficiaries,
then how can it be said to be misconduct so far discharge
of duty in favour of petitioner is concerned.
83. The law has already been settled, as has been
referred hereinabove, that any duty contrary to duty will
only be said to be misconduct and when no duty has
been assigned either for disbursal of the money from the
– 45 –
bank or to purchase the cattle for the purpose of its
distribution amongst the beneficiaries, since the writ
petitioner was not the member of the purchase committee
rather the Block Development Officers and others were
the members of purchase committee which has also been
found from the original record, then such charge cannot
be said to be charge in the eye of law so far as the
discharge of duty of present petitioner in the capacity of
VLW is concerned.
84. For this purpose, we have gone through the original
record minutely and found that there is no reference of
duty said to be assigned in favour of petitioner either for
disbursal of the money from the bank or to purchase the
cattle for the purpose of its distribution amongst the
beneficiaries rather it was vested upon the purchase
committee as per the government norms. There is no
allegation against the petitioner, as per the memo of
charge, and no material has come that any irregularity
has been committed by the petitioner in collecting
application for extending the benefit of government
scheme rather charge no. 1 and 2 which pertains to the
irregularity said to be committed in filling up of the form
has been found to be not proved. For ready reference,
extract of the enquiry report is quoted as under
“xxxx xxxx xxxx
– 46 –
vius c;ku ds dkj.k i`Nk dh lEiqf”V djrs gq, crk;k gS fd
gslkx xzke esa rsjg ¼13½ O;fDr;ksa dks Hkwfe leryhdj.k ds fy;s vuqnku
feyk gSA yxHkx 15] 20 ,dM+ tehu ij dk;Z gqvk FkkA mudk dk;Z
ns[kus ds ckn gha _.k ,oa vuqnku ds fy, vuq’kalk fd;k FkkA tk¡p
izfronsu ns[kus ls Li’V gksrk gS fd tk¡p vf/kdkjh us cSad ds dkxtkrksa
ds vk/kkj ij gh vkjksi mBk;k gSA mUgksua s LFky fujh{k.k ugha fd;k FkkA
vkjksi dh lEiqf”V ugha gksrh gSA
vkjksi la[;k rhu ds ckjs esa mUgksua s dkj.k i`Nk esa crk;k
gS fd tulsod dk dke ifjlEifr forj.k ds fy;s vkosnu i= Hkjuk gSA
iz[k.M }kjk bu vkosnu i=ksa dks cSad esa Hkst fn;k tkrk gSA cSad ls
Lohd`r iwoZ MksdqeUs Vs’ku ds ckn gh eos’kh [kjhnh tkrh gSA tulsod Ø;
lfefr ds lnL; Hkh ugha gSA eos”kh [kjhnk x;k vFkok ugha blds fy;s
Ø; lfefr dks ftEesokj Bgjk;k tkuk pkfg;sA
vius c;ku esa Hkh mUgksua s bldh lEiqf’V djrs gq, crk;k
gS fd eos’kh [kjhnk x;k gSA tulsod ds ukrs iapk;r ds yksxksa dk
vkbZ0vkj0Mh0ih0] esa eos’kh dh [kjhn djus&djkus esa mudh dksbZ
ftEesokjh ugha gSA bl dk;ZØe esa “kq: ls vUr rd mudk lfEefyr
jguk vko’;d ugha gSA
tulsod dk mi;qZDr C;ku rFkk fopkj Lohdkj ;ksX;
ugha izrhr gksrk gSA vkbZ0vkj0Mh0ih0] ds varxZr tulsod dk egRoiw.kZ
Hkwfedk gSA ;g ckr lgh gS fd og Ø; lfefr dk lnL; ugha gSA
ysfdu vkjEHk ls vUr rd bl dk;ZØe esa mudk lfEefyr jguk
vko’;d ekuk tk ldrk gSA blds fy;s mlls mEehn dh tk ldrh gS
fd eos’kh dk Ø; ds lEcU/k esa mudks iw.kZ tkudkjh jguh pkfg;sA ;fn
Ø; esa fdlh rjg dh xM+cM+h ik;h tkrh gS rks vizR;{k :i ls budk
Hkh lk>knkjh ekuk tk ldrk gSA
mi;qZDr rF;ksa ls Li’V gksrk gS fd vkjksi la[;k 1 ,oa 2
dh lEiqf’V ugha gksrh gSA vkjksi la[;k rhu ds lEcU/k esa mUgsa Hkfo’; esa
lrdZ jgus ds fy;s psrkouh fn;k tk ldrk gSA
vkns’kkFkZ %&
gLrk{kj
ftyk fodkl inkf/kdkjh]
xqeykA
mik;qDr
d`I;k lafpdk ds i`’V la[;k&1] 2] 3 ij ftyk fodkl
inkf/kdkjh dh fVIi.kh dk voyksdu djsAa Jh fnyhi dqekj lkgq]
tulsod] jk;Mhg ds fo:) lesfdr xzkeh.k fodkl dk;ZØe ds lapkyu
– 47 –
esa xM+cM+h ds Øe esa lEefyr jgus ds vkjksi ds dkj.k foHkkxh; dkjZokbZ
lapkfyr fd;k x;kA tc Jh lkgq jk;Mhg iz[k.M esa inLFkkfir Fks rks
ogk¡ eos’kh Ø; esa cSad rFkk eos”kh O;kikjh ij vkjksi yxkrs gq, mu ij
Hkh foHkkxh; dkjZokbZ pykbZ xbZ FkhA tk¡p inkf/kdkjh us lacfa /kr
tulsod dks bl dk;ZØe ds lapkyu esa foHkkxh; nkf;Ro ugha fuHkkus ds
dkj.k psrkouh nsus dk lq>ko fn;k gSA vr% ;fn ekU; gks rks mudh lsok
iqfLrdk esa psrkouh vafdr djus dk vkns”k fn;k tk ldrk gSA
gLrk{kj
mi fodkl vk;qDr]
xqeyk
85. Thus, it is evident that it has been admitted by the
disciplinary authority that the duty of Jan Sewak was to
collect the form and after approval from the Bank the
cattle was to be purchased. Further, it has also been
admitted by the disciplinary authority that the petitioner
was not the member of Purchase Committee, however, it
is expected that he should have knowledge of purchase of
cattle and if any irregularity is found then indirectly the
Jan Sewak can be held responsible. But contrary to the
duty assigned, as admitted by the administrative
authority, charge no. 3 has been framed against the writ
petitioner-appellant and basis upon which, only charge
no. 3 has been found to be proved and order of
punishment has been imposed.
86. We are conscious of the fact of jurisdiction conferred
under Article 226 of the Constitution of India showing
interference with the order of punishment if passed by
the administrative authorities in discharge of the
– 48 –
disciplinary authority. Further the scope of power of
judicial review is very limited and to the extent that if
there is perversity in the finding recorded by the enquiry
officer or there is violation of principles of natural justice
then only the decision taken by the
disciplinary/administrative authority can be interfered
with otherwise not. If finding of the enquiry officer is
based upon the cogent evident then the High Court in
exercise of power conferred under Article 226 of
the Constitution of India cannot be supposed to re-
apprise the evidence. The aforesaid proposition is well
settled , however, the Hon’ble Apex Court has also
carved out the guideline to which nature of cases, the
interference is to be shown by the High Court in exercise
of power conferred under Article 226 of Constitution of
India and in which cases, the interference is not
permissible, reference in this regard be made to the
judgment rendered in the case of Union of India v. P.
Gunasekaran (2015) 2 SCC 610, relevant paragraph 12
& 13 of the aforesaid judgment is quoted as under:
“12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry
officer. The finding on Charge I was accepted by the
disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a
– 49 –
second court of first appeal. The High Court, in exercise
of its powers under Articles 226/227 of the Constitution
of India, shall not venture into reappreciation of the
evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India,
the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may appear
to be;
(vii) go into the proportionality of punishment unless it
shocks its conscience.”
87. It is thus evident that it is not that there is absolute
bar under Article 226 of the Constitution of India in
– 50 –
showing interference with the administrative decision of
the disciplinary authority rather the same can be
interfered with depending upon the facts and
circumstances the particular case is coming under the
guideline formulated by Hon’ble Apex Court in Union of
India v. P. Gunasekaran (surpa) and others cases, as
referred hereinabove, or not.
88. Further, the Hon’ble Apex Court in the judgment
rendered in Allahabad Bank v. Krishna Narayan
Tewari [(2017) 2 SCC 308]; wherein the law has been
settled regarding the scope of judicial review which has
been held to be very limited but it has been laid down
therein that it is equally true that in a case where the
disciplinary authority records a finding that is
unsupported by any evidence whatsoever, the writ Court
would be justified, if not duty bound to examine the
matter and grant relief in appropriate cases, for ready
reference, relevant paragraph 7 of the judgment is quoted
as under:
“7. We have given our anxious consideration to the
submissions at the Bar. It is true that a writ court is
very slow in interfering with the findings of facts
recorded by a departmental authority on the basis of
evidence available on record. But it is equally true that
in a case where the disciplinary authority records a
finding that is unsupported by any evidence whatsoever
or a finding which no reasonable person could have
arrived at, the writ court would be justified if not duty-
– 51 –
bound to examine the matter and grant relief in
appropriate cases. The writ court will certainly interfere
with disciplinary enquiry or the resultant orders passed
by the competent authority on that basis if the enquiry
itself was vitiated on account of violation of principles of
natural justice, as is alleged to be the position in the
present case. Non-application of mind by the enquiry
officer or the disciplinary authority, non-recording of
reasons in support of the conclusion arrived at by them
are also grounds on which the writ courts are justified in
interfering with the orders of punishment. The High
Court has, in the case at hand, found all these
infirmities in the order passed by the disciplinary
authority and the appellate authority. The respondent’s
case that the enquiry was conducted without giving a
fair and reasonable opportunity for leading evidence in
defence has not been effectively rebutted by the
appellant. More importantly the disciplinary authority
does not appear to have properly appreciated the
evidence nor recorded reasons in support of his
conclusion. To add insult to injury the appellate
authority instead of recording its own reasons and
independently appreciating the material on record,
simply reproduced the findings of the disciplinary
authority. All told, the enquiry officer, the
disciplinary authority and the appellate authority
have faltered in the discharge of their duties
resulting in miscarriage of justice. The High Court
was in that view right in interfering with the
orders passed by the disciplinary authority and
the appellate authority.”
89. This Court is now proceeding to examine the factual
aspect of the given case. It is evident from the record that
even the reply in the defence, which has been given by
the petitioner has not been taken into consideration
rather no finding has been given with respect to the
– 52 –
nature of duty which was assigned to him in course of
discharge of official duty in the capacity of Jan Sewak.
90. It is settled proposition of law that if any defence is
being sought for from the delinquent employee the same
is required to be properly considered either way then it
will be said that the reply has been taken into
consideration.
91. Further, the consideration does not mean a mere
formality, rather, if any document or stand has been
taken in defence, it is the bounden duty of the authority
concerned to discuss and while accepting or refusing, the
same must be based upon the well assigned reason,
otherwise, it cannot be said to be a consideration in the
eyes of law since consideration means active application
of mind which can only be said to be there if the
document/defence will be well considered by the
authority concerned, reference in this regard be made to
the judgment rendered by Hon’ble Apex Court in the case
of Chairman, Life Insurance Corporation of
India v. A. Masilamani, (2013) 6 SCC 530 wherein at
paragraph 19 it has been held that the term “consider”
postulates consideration of all relevant aspects of a
matter. Thus, formation of opinion by the statutory
authority should reflect intense application of mind with
reference to the material available on record, for ready
– 53 –
reference the relevant paragraph of the aforesaid
judgment is being quoted as under:
“19. The word „consider‟ is of great significance. The
dictionary meaning of the same is, „to think over‟, „to
regard as‟, or „deem to be‟. Hence, there is a clear
connotation to the effect that there must
be active application of mind. In other words, the term
„consider‟ postulates consideration of all relevant
aspects of a matter. Thus, formation of opinion by the
statutory authority should reflect intense application of
mind with reference to the material available on record.
The order of the authority itself should reveal such
application of mind. The appellate authority cannot
simply adopt the language employed by the disciplinary
authority and proceed to affirm its order.”
92. From the interpretation made by the Hon’ble
Supreme Court with respect to meaning of
“consideration”, it would be evident that consideration
can only be said to be proper consideration if there
is active application of mind.
93. In the instant case it is evident that the defence has
been given by the petitioner that he has not been
assigned the duty of distribution of cattle or distribution
of cash amongst the beneficiaries rather the duty was
assigned to collect the form from the beneficiaries for
getting such benefit and submit the same to the office of
Block Development Officer but there is no finding to that
effect that as whether the duty of distribution of cattle or
distribution of cash amongst the beneficiaries was
– 54 –
assigned to the petitioner. Hence, this Court is of the
view that the defence reply has not been considered.
94. Furthermore, the law is well settled that the order of
punishment can be passed in the department proceeding
on the basis of preponderance of probability. But it is not
that merely on the basis of preponderance, the order of
punishment is to be passed, rather, even in coming to the
conclusion with respect to the issue of preponderance,
the cogent evidence is to be there, reference in this regard
may be made to the judgment rendered by the Hon’ble
Apex Court in the case of State of
Karnataka v. Umesh, (2022) 6 SCC 563, wherein, at
paragraphs-18 & 19 it has been held that mere on
probabilities, no punishment can be imposed in the
departmental proceeding. For ready reference, the same
is being referred as under:–
“18. In the course of the submissions, the respondents
placed reliance on the decision in Union of India v. Gyan
Chand Chattar [Union of India v. Gyan Chand
Chattar, (2009) 12 SCC 78]. In that case, six charges
were framed against the respondent. One of the charges
was that he demanded a commission of 1% for paying
the railway staff. The enquiry officer found all the six
charges proved. The disciplinary authority agreed with
those findings and imposed the punishment of reversion
to a lower rank. Allowing the petition under
Article 226 of the Constitution, the High Court observed
that there was no evidence to hold that he was guilty of
the charge of bribery since the witnesses only said that
the motive/reason for not making the payment could be
– 55 –
the expectation of a commission amount. The
respondent placed reliance on the following passages
from the decision : (SCC pp. 85 & 87, paras 21 & 31)“21. Such a serious charge of corruption requires to be
proved to the hilt as it brings both civil and criminal
consequences upon the employee concerned. He
would be liable to be prosecuted and would also be
liable to suffer severest penalty awardable in such
cases. Therefore, such a grave charge of
quasicriminal nature was required to be proved
beyond the shadow of doubt and to the hilt. It cannot
be proved on mere probabilities.
31. … wherein it has been held that the punishment
should always be proportionate to the gravity of the
misconduct. However, in a case of corruption, the only
punishment is dismissal from service. Therefore, the
charge of corruption must always be dealt with
keeping in mind that it has both civil and criminal
consequences.”
19. The observations in para 21 of Gyan Chand Chattar
case [Union of India v. Gyan Chand Chattar, (2009) 12
SCC 78] are not the ratio decidendi of the case. These
observations were made while discussing the
judgment [Union of India v. Gyan Chand Chattar, 2002
SCC OnLine Guj 548] of the High Court. The ratio of the
judgment emerges in the subsequent passages of the
judgment, where the test of relevant material and
compliance with natural justice as laid down in Rattan
Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC
491] was reiterated : (Gyan Chand Chattar case [Union
of India v. Gyan Chand Chattar, (2009) 12 SCC 78],
SCC p. 88, paras 35-36)
“35. … an enquiry is to be conducted against any
person giving strict adherence to the statutory
provisions and principles of natural justice. The
charges should be specific, definite and giving details
of the incident which formed the basis of charges. No
enquiry can be sustained on vague charges. Enquiry
– 56 –
has to be conducted fairly, objectively and not
subjectively. Finding should not be perverse or
unreasonable, nor the same should be based on
conjectures and surmises. There is a distinction in
proof and suspicion. Every act or omission on the part
of the delinquent cannot be a misconduct. The
authority must record reasons for arriving at the
finding of fact in the context of the statute defining the
misconduct.
36. In fact, initiation of the enquiry against the
respondent appears to be the outcome of anguish of
superior officers as there had been an agitation by
the railway staff demanding the payment of pay and
allowances and they detained the train illegally and
there has been too much hue and cry for several
hours on the railway station. The enquiry officer has
taken into consideration the nonexisting material and
failed to consider the relevant material and finding of
all facts recorded by him cannot be sustained in the
eye of the law.” (emphasis supplied) On the charge of
corruption, the Court observed in the above decision
that there was no relevant material to sustain the
conviction of the respondent since there was only
hearsay evidence where the witnesses assumed that
the motive for not paying the railway staff “could be”
corruption. Therefore, the standard that was applied
by the Court for determining the validity of the
departmental proceedings was whether (i) there was
relevant material for arriving at the finding; and (ii)
the principles of natural justice were complied with.”
95. Further, in the case of High Court of Judicature at
Bombay v. Uday Singh, (1997) 5 SCC 129, the law has
been laid down that in the departmental proceeding
the cogent evidence is required to be there for inflicting
– 57 –
punishment. For ready reference, paragraph-10 is being
referred as under:
“——– the doctrine of proof beyond doubt has no
application. Preponderance of probabilities and some
material on record would be necessary to reach a
conclusion whether or not the delinquent has committed
misconduct——-.”
96. Applying the aforesaid principle, this Court is of the
view that it is a case where interference is required to be
shown in exercise of power conferred under Article 226 of
the Constitution of India.
97. Accordingly, the order passed by the disciplinary
authority dated 22.09.1997 and appellate order dated
05.06.2006 are hereby quashed and aside. The
consequence will follow.
98. At this stage, learned State counsel has submitted
that arrears of difference of salary are to be restricted
only for the period of three years. Such submission has
been made based upon the law laid down in the case of
Union of India & Ors Vs. Tarsem Singh [(2008) 8 SCC
648].
99. This Court has considered the said judgment. The
law is well settled that the applicability of the judgment is
to be tested on the basis of facts governing the case
individually as per the ratio laid down by Hon‟ble Apex
Court in the case of Dr. Subramanian Swamy vs. State
of Tamil Nadu &Ors reported in (2014) 5 SCC 75. For
– 58 –
ready reference the relevant of the aforesaid judgment is
being quoted as under:
“47. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the
facts of that case and the case is only an authority for
what it actually decides, and not what logically follows
from it. “The court should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance is
placed.”
100. The factual aspect involved in the case of Union
of India & Ors Vs. Tarsem Singh (supra) is that the
said Tarsem Singh approached the Court of law after16
years before the court of law. The facts involved in that
case was that said Tarsem Singh while working in the
Indian Army was invalidated out of army service, in
medical category, on 13-11-1983. But, he approached the
High Court in 1999 seeking a direction to the appellants
to pay him disability pension. The learned Single Judge
by order dated 06.12.2000 allowed the writ petition and
directed the appellants to grant him disability pension at
the rates permissible. Insofar as arrears are concerned,
the relief was restricted to thirty-eight months prior to
the filing of the writ petition. The employee however being
not satisfied filed a letters patent appeal which was
allowed vide dated 06.12.2006.
101. The Division Bench held that the respondent
was entitled to disability pension from the date it fell due,
– 59 –
and it should not be restricted to a period of three years
and two months prior to the filing of the writ petition. By
a subsequent modification order dated 23-2-2007, the
Division Bench also granted interest on the arrears at the
rate of 6% per annum.
102. The said judgment and order of the Division
Bench was challenged before the Hon‟ble Apex Court by
filing appeal on the question that whether the High Court
was justified in directing payment of arrears for a period
of 16 years instead of restricting it to three years. The
appeal was allowed directing payment of disability
pension from the date it fell due, was set aside.
103. The factual aspect which has been taken by the
Hon’ble Apex Court in that case that even though the
appellant of the said case was conscious with his legal
right of getting the disability pension but he has invoked
the jurisdiction of the Court after the reasonable period
but this Court by taking into consideration the mandate
of the Persons With Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995, has
passed the order on disability pension but the litigant
has been imposed with arrears of salary only for the
period of three years.
104. There is no dispute that if there is delay and
laches then the government exchequer is not to be put on
– 60 –
burden. But as has been discussed hereinabove that the
applicability of judgment depends upon the facts and
circumstances of case.
105. Herein, the fact which has been dealt with in
detail herein above and this Court has come to the
finding that the basis of charge itself has been found to
be illegal based upon the discussion made hereinabove.
The moment charge itself is found to be illegal then the
question would be that why the concerned delinquent will
be allowed to suffer. The disciplinary authority being the
competent authority is to initiate a departmental
proceeding by applying all consciously and applicability
of mind.
106. The law if provides power upon the disciplinary
authority it does not mean that the power is to be utilized
arbitrarily and without any rationale and cogent
reason(s). The fact about very genesis of charge regarding
its veracity which has been dealt with in detail
hereinabove that the duty of drawing money from the
bank or purchase of the cattle has never been vested
upon the petitioner, which fact has been admitted by the
learned State counsel after going through the record.
107. Then the question is that what is the basis of
framing such charge i.e., charge no. 3, which only was
found to be proved. If, the duty has not been assigned, to
– 61 –
the appellant/petitioner and this Court has already
found that the said charge was wrongly framed then in
such circumstances if the entitlement of the writ
petitioner will be restricted for the three years then a
wrong doer i.e., the authority concerned will be given
advantage of its own wrong.
108. The law is well settled that a wrong doer cannot
be allowed to take advantage of its own wrong, reference
in this regard be made to the judgment rendered by
Hon’ble Apex Court in the case of Kusheshwar Prasad
Singh v. State of Bihar, (2007) 11 SCC 447 wherein it
has been held that a man cannot be permitted to take
undue and unfair advantage of his own wrong to gain
favourable interpretation of law. It is sound principle that
he who prevents a thing from being done shall not avail
himself of the non-performance he has occasioned. To
put it differently, “a wrongdoer ought not to be permitted
to make a profit out of his own wrong. For ready
reference paragraphs 15 and 16 are being quoted
hereunder as:–
“15. In Union of India v. Major General Madan Lal
Yadav [(1996) 4 SCC 127] the accused army personnel
himself was responsible for delay as he escaped from
detention. Then he raised an objection against initiation
of proceedings on the ground that such proceedings
ought to have been initiated within six months under
the Army Act, 1950. Referring to the above maxim, this
Court held that the accused could not take undue
– 62 –
advantage of his own wrong. Considering the relevant
provisions of the Act, the Court held that presence of the
accused was an essential condition for the
commencement of trial and when the accused did not
make himself available, he could not be allowed to raise
a contention that proceedings were time barred. This
Court (at SCC p. 142, para 28) referred to Broom’s Legal
Maxims (10th Edn.), p. 191 wherein it was stated:”It is a
maxim of law, recognised and established, that no man
shall take advantage of his own wrong; and this maxim,
which is based on elementary principles, is fully
recognised in courts of law and of equity, and, indeed,
admits of illustration from every branch of legal
procedure.”
16. It is settled principle of law that a man cannot be
permitted to take undue and unfair advantage of his
own wrong to gain favourable interpretation of law. It is
sound principle that he who prevents a thing from being
done shall not avail himself of the non-performance he
has occasioned. To put it differently, “a wrongdoer
ought not to be permitted to make a profit out of
his own wrong”.
109. Similar view has been reiterated by Hon’ble
Apex Court in the case of Indore Development
Authority v. Shailendra (Dead) through legal
representatives, (2018) 3 SCC 412 at paragraph 143
which is being quoted hereunder as:
“143. When once the court has restrained the State
authorities to take possession, or to maintain status quo
they cannot pay the amount or do anything further, as
such the consequences of interim orders cannot be used
against the State. It is basic principle that when a party
is disabled to perform a duty and it is not possible for
him to perform a duty, is a good excuse. It is a settled
proposition that one cannot be permitted to take
– 63 –
advantage of his own wrong. The doctrine commodum
ex injuria sua nemo habere debet means convenience
cannot accrue to a party from his own wrong. No person
ought to have advantage of his own wrong. A litigant
may be right or wrong. Normally merit of lis is to be seen
on date of institution. One cannot be permitted to obtain
unjust injunction or stay orders and take advantage of
own actions. Law intends to give redress to the just
causes; at the same time, it is not its policy to foment
litigation and enable to reap the fruits owing to
the delay caused by unscrupulous persons by their own
actions by misusing the process of law and dilatory
tactics.”
110. Thus, it is evident from the factual aspect of the
case of Union of India & Ors Vs. Tarsem Singh (supra)
that it is with respect to entitlement of disability pension
while the factual aspect of the present case is framing of
the wrong charge, which is exclusively under the domain
of disciplinary/appointing authority. The disciplinary/
appointing authority when conferred with the power to
initiate the departmental proceeding to deal with the
charge of dereliction in duty or commission of
misconduct, then it is the accountability of the
disciplinary/appointing authority to frame the charge by
taking into consideration the very irregularity said to be
committed by one or the other employee. The power does
not mean that power is to be exercised arbitrarily, which
is the factual aspect of the present case. Hence, factual
aspect of the present case is different to that of Union of
India & Ors Vs. Tarsem Singh (supra).
– 64 –
111. Therefore, this Court is of the view that in the
facts and circumstances of the instant case, the
judgment rendered by Hon‟ble Apex Court in the case of
Union of India & Ors Vs. Tarsem Singh (supra) is not
applicable, as such the contention of learned State
counsel that arrears of difference of salary are to be
restricted only for the period of three years only to the
petitioner/appellant is hereby rejected.
112. With the aforesaid observations and directions,
the instant intra-court appeal stands allowed.
113. The original record, which was produced for
perusal of the Court is returned to the State counsel for
its onward transmission to the authority concerned.
114. Pending Interlocutory Application, if any, stands
disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Alankar / A.F.R.