IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7399 of 2010 1. RAGHUNATH SINGH, S/O LATE KISHORI SINGH, R/O MOHALLA - SAKET PURI SOUTH OF BAZAR SAMITI, P.O.- RAJENDRA NAGAR, P.S.- BAHADURPUR, DISTRICT-PATNA. Versus 1. BIHAR STATE ELECTRICITY BOARD, THROUGH ITS CHAIRMAN, BIHAR STATE ELECTRICITY BOARD,PATNA. 2. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA. 3. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA. 4. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA. 5. THE CHIEF ENGINEER (PLANNING) BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA. with CWJC No.7311 of 2010 1. RAGHUNATH SINGH S/O LATE KISHORI SINGH R/O MOH SAKET PURI, SOUTH OF BAZAR SAMITI, P.O.RAJENDRA NAGAR, P.S.BAHADURPUR, DISTT- PATNA Versus 1. BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN , BIHAR STATE ELECTRICITY BOARD PATNA 2. THE CHAIRMAN , BIHAR STATE ELECTRICITY BOARD BAILEY ROAD, PATNA 3. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD BAILEY ROAD, PATNA 4. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD BAILEY ROAD, PATNA 5. THE CHIEF ENGINEER (PLANNING) BIHAR STATE ELECTRICITY BOARD BAILEY ROAD, PATNA ----------- For the petitioner : Mr. Vindhya Keshari Kumar, Senior Advocate -with- M/S Ajay Kumar Singh & Rajesh Kumar Pandey, Advocates. For the Board : M/S Vinay Kirti Singh & Vijay Kumar Verma, Advocates. ===== 5. 10.05.2010. Heard learned counsel for the petitioner and the Bihar State Electricity Board, Patna (hereinafter referred to as the “Board”). 2. Petitioner has filed C.W.J.C. No. 7399 of 2010 for a direction to the Board to pay him full salary for the period of suspension as he was exonerated of the charges levelled against him under resolution of the Board dated 4.2.2006, Annexure-6. - 2 - 3. C.W.J.C. No. 7311 of 2010 has been filed by the petitioner praying, inter alia, to set aside the order dated 18.2.2010, Annexure-7with further direction to the Board to consider his case for promotion on the post of Executive Engineer with effect from the due date as he could not be considered for such promotion since he was being proceeded against in a departmental proceeding and was placed under suspension under Board’s order dated 15.10.1998 and the proceeding continued until the resolution of the Board dated 4.2.2006, Annexure-6 was passed. 4. In support of the prayer made in C.W.J.C. No. 7399 of 2010 learned counsel for the petitioner has relied on the resolution of the Board dated 4.2.2006, Annexure- 6, whereunder the disciplinary authority of the petitioner having perused the report of the Inquiry Officer, written statement and the statement of the witnesses and other connected documents found that the charges levelled against the petitioner could not be proved and exonerated him of the charges but while exonerating the petitioner of the charges levelled against him petitioner was warned to remain careful in future and having warned the petitioner the disciplinary authority directed that petitioner shall not get anything other than the subsistence allowance for the period of suspension. The charges levelled against the petitioner was not proved. He was, however, warned to be careful in future. Warning is not a punishment under the Discipline and Appeal Rules whereunder petitioner was proceeded against. To be careful in future is merely an advice. As the petitioner was not punished of the charges levelled against him he is entitled for full salary for the period of suspension in view of sub-rule (2) of Rule 97 of the Bihar Service Code, submitted the counsel for the petitioner. Aforesaid submission was even made in appeal - 3 - filed by the petitioner on 7.7.2006 but the same was not considered and the appeal was rejected under orders dated 26.3.2007 whereafter under representation dated 30.3.2007 petitioner requested the authorities of the Board to release the salary for the suspension period in view of the findings recorded in the resolution of the Board dated 4.2.2006, Annexure-6. Aforesaid prayer was also rejected by the Board under order dated 07.05.2010, Annexure-A to the counter affidavit filed on behalf of the Board whereunder it has been stated that the request of the petitioner for release of salary for the period of suspension has been rejected by the Board under resolution dated 4.2.2006 as also under memo dated 26.3.2007, there is no justification for repeating the same prayer again and again. 5. Aforesaid prayer of the petitioner is being opposed by the counsel for the Board on merits as also on the ground of delay. Learned counsel for the Board on merit submitted that petitioner may have been exonerated of the charges levelled against him but as he was warned to be careful in future it cannot be said that he has been fully exonerated of the charges levelled against him and thus, the Board was within its jurisdiction to direct that petitioner shall not be paid his full salary for the period of suspension. On the ground of delay learned counsel for the Board submitted with reference to the judgment of the Hon’ble Supreme Court in the case of Jagdish Narain Maltiar Vs. The State of Bihar and others, reported in A.I.R. 1973 Supreme Court 1343 that by filing unprovided memorial the delay in filing the writ petition should not be condoned and applying the ratio of the said case it is submitted that the salary of the petitioner for the suspension period was withheld under resolution of the Board dated 4.2.2006, - 4 - Annexure-6 and petitioner has filed this writ application on 27.4.2010 i.e. after about four years and this Court should dismiss the writ petition on the ground of laches. So far the merit of the matter is concerned from perusal of the resolution of the Board dated 4.2.2006, Annexure- 6 itself it is evident that on the basis of the findings recorded in the report of the Inquiry Officer, written statement and the evidence of witnesses the disciplinary authority was satisfied that the charges levelled against the petitioner are not proved. The disciplinary authority, however, while exonerating the petitioner warned the petitioner to be careful in future. Warning not being a punishment under the Discipline & Appeal Rules whereunder petitioner was proceeded against it cannot be said that petitioner has not been exonerated of the charges levelled against him. For the advice rendered to be careful in future, his salary for the suspension period could not have been withheld in the light of sub-rule (2) of Rule 97 which inter alia provide that the salary for the suspension period will be withheld only when the petitioner is not fully exonerated of the charges. From perusal of the resolution of the Board dated 4.2.2006, Annexure-6 it is evident that while exonerating the petitioner of the charges levelled against him he has been warned and advised to be careful in future and thus, in my opinion he is entitled for payment of full salary for the suspension period as on the basis of advice to be careful in future the salary for the period of suspension could not have been withheld. 6. Other submission of the counsel for the Board that the prayer made in the writ petition is barred by laches as petitioner has been whiling away the time by filing appeal and representation before the Board and has approached this Court after about four years, this Court - 5 - should dismiss the writ petition on the ground of laches, I am of the view that the time taken in disposal of the appeal filed against the resolution of the Board dated 4.2.2006, Annexure-6 could not be taken into account for considering the period of delay in moving this Court. Against the resolution of the Board dated 4.2.2006 petitioner filed appeal on 7.7.2006 which was disposed of by the Board under orders dated 26.3.2007 and within 3- 4 days of the rejection of his appeal petitioner filed his representation dated 30.3.2007 requesting the authorities of the Board to release the salary for the period of suspension which remained pending before the Board until 7.5.2010 when the same was rejected observing that there was no justification for filing repeated appeal for release of the salary. It is, thus, evident that the appeal and representation of the petitioner dated 7.7.2006, 30.3.2007 respectively was filed within reasonable time of the issue of the punishment order dated 4.2.2006 and the appellate order dated 7.7.2006 in the circumstances the time taken in disposal of the appeal dated 7.7.2006 and the representation dated 30.3.2007 has to be excused while considering the submissionof the learned counsel for the Board that the writ petition is barred by laches. The appeal and representation for payment of full salary for suspension period remained pending for about 8 months and 3 years. In the circumstances, there is hardly any delay in filing the appeal/representation by the petitioner. 7. The judgment of the Hon’ble Supreme Court in the case of Jagdish Narain Maltiar (supra) is clearly distinguishable from the facts of the present case and has no application to the case in hand. Jagdish Narain Maltiar was removed from service under order dated - 6 - 16.9.1958 which was challenged by filing writ petition in the High Court which was dismissed on 21.1.1960 on the ground that he was not removed for misconduct but his service being temporary was terminated by a simple order of discharge. More than three years thereafter Jagdish Narain Maltiar made a representation to the Government i.e. on 4.6.1963. He received reply to his representation on 17.8.1963 in which it was stated that his services were terminated for gross misconduct. On 2.12.1963 he submitted fresh memorandum. On 6.2.1964 he submitted yet another memorandum and waited to receive reply till September 2, 1965 on which date he filed a further representation and received the order rejecting his representation on 15.5.1966 whereafter he filed the second writ petition on 27.9.1966. The writ petition was not entertained on the ground of laches as it was found that Jagdish Narain Maltiar had discovered that his services were really terminated for gross misconduct on 17.8.1963 kept on submitting one memorandum after another to the Government until 23.9.1996 when he filed the second writ petition which was dismissed on the ground of laches observing that the memorials presented by Jagdish Narain Maltiar to the Government were in the nature of mercy petition and he should have realized that by pursuing a remedy which is not duly appointed under the law he was putting in peril a right of high value and significance. By causing delay Jagdish Narain Maltiar disabled the High Court from exercising its extraordinary powers in his favour. In the case in hand the full salary of the petitioner was withheld under order dated 4.2.2006 against which he filed statutory appeal within five months of the order i.e. on 7.7.2006 which was rejected under orders dated 26.3.2007. Within three days of the rejection of the - 7 - statutory appeal he filed review/representation dated 30.3.2007 making the same prayer which was made in the appeal to release the full salary for the period of suspension. The review/representation was kept pending by the authorities. Meanwhile, the present writ petition was filed on 27.4.2010. During the pendency of the writ petition the authorities of the Board disposed of the review/representation of the petitioner dated 30.3.2007 under orders dated 7.5.2010 stating that his memorandum of appeal praying for grant of full salary having already been rejected, no useful purpose will be served by repeating the same prayer and the order is contained in Annexure-A to the counter affidavit. It is, thus, evident that in the case in hand petitioner initially challenged the resolution of the Board on 4.2.2006 by filing statutory appeal and within three days of the disposal of the statutory appeal review/representation was filed which was kept pending by the authorities of the Board, meanwhile, the petitioner filed the present writ case on 27.4.2010, as such, the present case is not a case in which petitioner has pursued repeated representations which is not provided under the law. The appeal preferred by him has been provided in the statute and within three days of the rejection of the appeal he filed the representation so as to persuade the authorities that the resolution dated 4.2.2006 is violative of sub-rule (2) of Rule 97 of the Bihar Service Code and the representation the authorities kept pending until filing of the writ case on 27.4.2010 whereafter the same is being rejected under orders dated 7.5.2010, as such, it does not appear that the case in hand is similar to the case of Jagdish Narain Maltiar (supra). In this connection reference be made to the following observation of the Privy Council in the case of Lindsay Petroleum Co. vs. - 8 - Prosper Armstrong Hurd Abram Farewall and John Kemp (1874) 5 Penal Code 221 which has been quoted with approval in the judgment of the Hon’ble Supreme Court in the case of Moon Mills Ltd. vs. M.R.Mehar, President, Industrial Court, reported in A.I.R. 1967 Supreme Court 1450 and Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, reported in (1969) 1 SCR 808: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. The circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect - 9 - either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.” In State of Madhya Pradesh Vs. Nandlal Jaiswal (1986)4 SCC 566 it was held as follows :- “There can be doubt that the petitioners were guilty of gross delay in filing the writ petitions with the result that by the time the writ petitions came to be filed. 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. 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. - 10 - 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”. In Shri Vallabh Glass Works Ltd. Vs. Union of India (1984) 3 SCC 362 it was observed as follows : “While there are different periods of limitation prescribed for the institution of different kinds of suits by the Limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution. Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to - 11 - refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc.” 8. As the petitioner was exonerated of the charges under resolution dated 4.2.2006, Annexure-6 the Board on its own should have paid him the salary for the period of suspension but the same was not paid inspite of appeal and further request made under representation dated 30.3.2007 to release the same. Accordingly, this Court directs the Board to release the arrears of salary of the petitioner for the period of suspension in view of the fact that he has not been punished and exonerated of the charges levelled against him under resolution dated 4.2.2006, Annexure-6. The release should be made within three months from the date of receipt of the order of this Court before the concerned Joint Secretary of the Board. 9. The prayer of the petitioner in the other writ application for grant of promotion was considered by the Board under letter dated 18.2.2010, Annexure-7 and rejected on the ground that under resolution no. 76 dated 4.2.2006 it has not been observed that the Board will - 12 - grant consequential benefit to the petitioner and restore his seniority and according to the Board as the seniority of the petitioner has not been restored while exonerating him of the charges he cannot be considered for promotion. Aforesaid approach of the Board appears to be wholly contrary to law. Petitioner was suspended and subjected to departmental proceeding and during the pendency of the departmental proceeding he could not be promoted and his other juniors were promoted. Now, when the petitioner has been exonerated of the charges under resolution of the Board dated 4.2.2006, Annexure- 6 he has to be considered for promotion with effect from the date his other juniors have been promoted. The observation in the impugned order dated 18.2.2010, Annexure-7 that as his seniority has not been restored while exonerating him he cannot be considered for promotion is wholly devoid of merit and illegal. Accordingly, the order dated 18.2.2010, Annexure-7 is set aside and the Board is directed to consider the case of the petitioner for promotion with effect from the date his juniors have been so promoted. 10. The writ petition(s) are, accordingly, disposed of. A.F.R. P.K.P. (V.N.Sinha,J.)