IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 WP(C).No. 12375 of 2011(R) ----------------------- PETITIONER : --------------------- SAVIOUR D., AGED 46 YEARS, S/O.DEVADAS, WORKING AS L.D.CLERK, SUB COURT, THODUPUZHA, RESIDING AT SHARON COTTAGE, CHURCH ROAD, THUNDATHIL.P.O., KARYAVATOM, THIRUVANANTHAPURAM-695 581. BY ADVS. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): ------------------------- 1. THE HIGH COURT OF KERALA, KOCHI-682 031, REPRESENTED BY ITS REGISTRAR. (SUBORDINATE JUDICIARY) 2. THE DISTRICT JUDGE, IDUKKI, THODUPUZHA. 685 584. R2 BY GOVT. PLEADER SMT. SMITHA GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 12375 of 2011(R) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE MEMO DATED 1.8.2006 ISSUED TO THE PETITIONER BY R2. EXT.P2 : COPY OF THE ANSWER TO THE MEMO SUBMITTED BY THE PETITIONER DTD. 16.8.2006. EXT.P3 : COPY OF THE ORDER DATED 17.11.2006 OF THE 2ND RESPONDENT. EXT.P4 : COPY OF THE COMMUNICATION DATED 25.11.2006 ADDRESSED TO THE ENQUIRY OFFICER BY THE PETITIONER SEEKING COPY OF THE ENQUIRY REPORT. EXT.P5 : COPY OF THE COMMUNICATION DATED 25.11.2006 ADDRESSED TO THE ENQUIRY OFFICER BY THE PETITIONER SEEKING ASSISTANCE OF A LEGAL OFFICER. EXT.P6 : COPY OF THE PETITION DATED 24.1.2007 SUBMITTED BY THE PETITIONER BEFORE R2. EXT.P7 : COPY OF THE ENQUIRY REPORT NO.3/2006 DATED 31.1.2007. EXT.P8 : COPY OF THE COMMUNICATION DATED 26.2.2007 RECEIVED BY THE PETITIONER FROM R2. EXT.P9 : COPY OF THE REPLY DATED 17.3.2007 SUBMITTED BY THE PETITIONER BEFORE R2. EXT.P10 : COPY OF THE ORDER NO. 2744/07 DATED 16.4.2007. EXT.P11 : COPY OF THE APPEAL DATED 21.5.2007 SUBMITTED BY THE PETITIONER BEFORE THE HIGH COURT OF KERALA. EXT.P12 : COPY OF THE MEMO DATED 6.2.2008 ISSUED TO THE PETITIONER BY R1. EXT.P13 COPY OF THE ANSWER SUBMITTED BY THE PETITIONER BEFORE R1. (Contd...) WP(C).No. 12375 of 2011(R) EXT.P14 COPY OF THE ADDITIONAL STATEMENT DATED 19.5.2008 SUBMITTED BY THE PETITIONER BEFORE R1. EXT.P15 COPY OF THE ORDER NO. 11-44484/07 DATED 9.9.2009 PASSED BY R2. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 12375 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th day of June, 2011. J U D G M E N T While working as an Upper Division Clerk in the Munsiff's Court, Devikolam, disciplinary proceedings were initiated against the petitioner. Pursuant to the disciplinary proceedings, by Ext. P10 order, the disciplinary authority imposed on the petitioner the punishment of reduction to a lower post for 5 years. Against the same, the petitioner filed an appeal before this Court. by Ext. P15 order dated 9.9.2009, the High Court dismissed that appeal. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) To call for the records leading upto Exhibits P7, P10 and P15 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. ii) To declare that the entire departmental proceedings are conducted in gross violation of all principles of natural justice and violative of Articles 14, 16 and 21 of the Constitution of India. iii) Issue a writ of mandamus commanding the respondents not to implement the reduction ordered in the departmental proceedings and permit the petitioner to continue as an Upper Division Clerk.” 2. When the writ petition came up on 10-6-2011, this Court pointed out to the learned counsel for the petitioner that the delay of 2 years in challenging the impugned order W.P(C) No. 12375 of 2011 -: 2 :- has not been properly explained in the writ petition. Then the learned counsel for the petitioner sought further time to file a fresh affidavit explaining the delay. I passed the following order on 10.6.2011: “When it was pointed out to the learned counsel for the petitioner that Ext. P15 order is dated 9.9.2009, the petitioner has filed this writ petition only on 30.3.2011 and that the explanation offered in paragraph 1 of the writ petition is not sufficient explanation the counsel seeks time to file a better affidavit explaining the delay.” Today, the learned counsel for the petitioner submits that the petitioner does not have any further explanation to offer. But the learned counsel relies on the decision of the Supreme Court in Shiv Dass v. Union of India and others, (2007) 9 SCC 274. 2. I have heard the standing counsel for the High Court also. 3. The delay is explained in paragraph 1 of the writ petition thus: “ . . . . . On receipt of the same, some time late in September 2009, the petitioner was indeed perplexed and in a disturbed state of mind. He therefore had misplaced the order Ext. P15 along with some other papers and could not trace them out. On enquiries the petitioner was informed that he can file an application for review before the Full Court, which also he could not do for some time as the order was misplaced. On enquiries the petitioner was given to advice that unless he gets another copy of the order from the High Court, no legal proceedings can also be taken. The petitioner was thereafter making attempts for W.P(C) No. 12375 of 2011 -: 3 :- the same. In the meantime, recently, he could recover back the copy of the order Ext. P15 and it is accordingly that he is challenging the said order before this Hon'ble Court.” That is not an explanation at all. The decision relied on by the learned counsel for the petitioner is clearly distinguishable insofar as that was a case where a retired army personnel claimed disability pension. The Supreme Court held that since the cause of action continues from month to month, the relief can be granted excluding the period of delay. Further, in paragraph 6 of that judgment , the Supreme Court has held thus: “6. Normally, in the case of belated approach, writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185]. Of course, the discretion has to be exercised judicially and reasonably.” The petitioner also relies on the decision of Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Others, (2008) 12 SCC 353 where the Supreme Court has condoned the delay of 2205 days in W.P(C) No. 12375 of 2011 -: 4 :- approaching the court. That decision is also distinguishable on facts insofar as the Supreme Court held therein that when fraud and suppression of material facts have been alleged, the merits of the matter as also the question with regard to the adjustment of equities should be considered by the High Court. Here, there is no question of any fraud or suppression of material facts and therefore that decision is also not applicable to the facts of this case. In view of the fact that the petitioner has not been able to offer any acceptable explanation for the long delay of almost 2 years, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/