LPA No. 881 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 881 of 2011(O&M) Date of Decision 19.05.2011 Surinder Singh Bains -----Petitioner Versus Punjab State Cooperative Supply and Marketing Federation Limited, and another ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.K. Chhibbar, Sr. Advocate with Ms. Monika, Advocate for the appellant. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal under Clause X of the Letters Patent by an unsuccessful appellant is directed against the judgment dated 02.02.2011 rendered by the learned Single Judge holding that the writ petition filed by the appellant suffered from inordinate delay and laches, therefore, it was liable to be dismissed on that score alone. It has further been concluded that the observations, if any, made by the Arbitrator in the subsequent recovery proceedings have no bearing on the conclusions drawn in the domestic enquiry conducted against the petitioner in accordance with the principles of natural justice. The factum of delay in challenging the order of LPA No. 881 of 2011(O&M) -2- his dismissal dated 05.05.1982, which was upheld in appeal vide order dated 01.09.1982 as well as in revision vide order dated 04.01.1984. 2. Brief facts of the case are that the petitioner joined the Punjab State Cooperative Supply & Marketing Federation Ltd. (for brevity 'the respondent-Markfed) as Branch Officer. He was served with a charge-sheet dated 02.08.1980, inter alia, alleging that he sold in excess 340 bags of wheat in connivance with other officials. The appellant denied the allegations and then respondent proceeded to hold a regular departmental enquiry. The enquiry officer held the appellant guilty and the competent authority accepted those findings. Accordingly, the appellant was dismissed from service vide order dated 05.05.1982 (P-2), which has been upheld in appeal and revision vide orders dated 01.09.1982 and 04.01.1984 respectively. The aforesaid three orders i.e. order dated 05.05.1982 passed by the Managing Director and the order dated 01.09.1982 passed by the appellate authority and the order dated 04.01.1984 passed by the revisional authority were not challenged by the appellant before any court of law and those orders have attained finality. 3. It is appropriate to notice that recovery proceeding were initiated against the appellant under the Punjab Cooperative Societies Act, 1961 (for brevity 'the Act') for the shortage of 120 bags of wheat. The Arbitrator found him responsible for the loss LPA No. 881 of 2011(O&M) -3- but on an appeal, the matter was remanded and the Arbitrator vide his subsequent award dated 31.03. 2003 (P4) found that the appellant was not responsible for the shortage of the wheat bags. On that basis the appellant asserted that he has been exonerated of the charges and requested for reinstatement in service. The request made by the appellant has been declined by the competent authority vide order dated 24.01.2006 (P-6). The appellant approached this Court by filing the writ petition under Article 226 of the Constitution, which has been dismissed by the impugned judgment dated 02.02.2011 rendered by the learned Single Judge. The view of the learned Single Judge is discernible from the penultimate para which reads thus: “(5). Having heard learned counsel for the parties at some length and on perusal of the record I am of the considered view that the writ petition suffers from inordinate delay and laches and is liable to be dismissed on this score alone. Suffice it to observe that the observations, if any, made by the Arbitrator in the subsequent recovery proceedings have no bearing on the conclusions drawn in the domestic enquiry conducted against the petitioner in accordance with the principles of natural justice. The fact that the petitioner allowed the grass to grow beneath his feet and did not challenge the LPA No. 881 of 2011(O&M) -4- appellate/revisional orders for 24 long years would be sufficient enough to dissuade this Court to interfere with even if the petitioner is assumed to have made out a case on merits.” 4. Mr. R.K. Chhibbar learned Senior counsel has argued that learned Single Judge has committed grave error in law by non- suiting the appellant by holding that the writ petition suffers from delay and laches. According to learned counsel, once he has been exonerated of the charges vide order dated 31.03.2003 (P-4), then there was no reason for the respondent-Markfed to reject his representation vide order dated 24.01.2006 (P-6) wherein, he has requested for his reinstatement in service. Mr. Chhibbar, has maintained that the period of limitation would not start from the order dismissing the appellant from service or from the order dated 01.09.1982 dismissing his appeal or from the order dated 04.01.1984 dismissing his revision petition. According to learned counsel, the period of limitation would commence when he was exonerated and his request for reinstatement has been declined on 24.01.2006. The other submission by the learned counsel is that in any case rule concerning delay and laches is not a rule of law but a rule of practice based on sound and proper exercise of discretion. The principle on which the relief to the party on the ground of delay and laches is denied is that the 3rd party rights have accrued on account of the delay which cannot be permitted to be disturbed LPA No. 881 of 2011(O&M) -5- unless there is reasonable explanation. If a party has come to the Court before a parallel right is created and lapse of time is not attributable to any laches or negligence then it would be appropriate to exercise discretion in favour of such a party. In support of his submission, learned Senior counsel has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of M/s. Dehri Rohtas Light Railway Company Limited v. District Board Bhojpur and others JT 1992(3) SC 573. 5. Having heard learned counsel and perusing the paper book with his able assistance, we are of the considered view that the instant appeal is devoid of merit and the same is liable to be dismissed. The order of dismissal passed on 05.05.1982, in fact has brought an end the relationship of employer and employee between the appellant and the respondent-Markfed. The aforesaid order has been upheld in appeal vide order dated 01.09.1982 and even revision petition filed by the appellant was dimissed on 01.04.1984. There is no dispute that the aforesaid orders have attained finality and were not challenged before any court of law. It is well settled that although there is no period of limitation prescribed with regard to filing of the writ petition yet the maximum period of limitation, which has been accepted by the Constitution Bench is three years. In that regard we may place reliance on the observations made by the Constitution Bench LPA No. 881 of 2011(O&M) -6- rendered in the case of State of M.P. v. Bhailal Bhai AIR 1964 SC 1006. In para 21, the following observations have been made which reads thus: “The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.” 6. Similar view has also been taken in the case of Shiba Shankar Mohapatra v. State of Orissa and others 2010 (12) SCC 471. 7. The argument of Mr. Chhibbar that the period of limitation would only commence from the date of the order rejecting his representation of the appellant on 24.01.2006 (P-6) has no legs to stand . As a matter of fact, the appellant was LPA No. 881 of 2011(O&M) -7- exonerated on 31.03.2003 (P-4), which has been rendered by the Assistant Registrar, Cooperative Societies, Jalandhar. On the basis of the aforesaid order, an undated representation is stated to have been made (P-5), which has been rejected on 24.01.2006. 8. A perusal of the order dated 24.01.2006 passed by the respondent-Markfed would show that two representations were made on 20.04.2005 and 12.01.2006, which have been rejected on 24.01.2006. We are unable to accept the submission made by Mr. Chhibbar, that the period of limitation would commence from 24.01.2006 and the cause of action, if any, has arisen to the appellant from the order dated 31.03.2003. Even on that basis, he made a representation on 20.04.2005 and sent a reminder on 12.01.2006 as per the impugned order dated 24.01.2006. The writ petition by the appellant was filed on 05.12.2008. There is no explanation to explain for the delay after the award dated 31.03.2003 passed by the Assistant Registrar. It took the appellant a period of more than two years to make first representation and sent a reminder on 12.01.2006. The aforesaid theory of the representation also does not inspire any confidence and taking the period of limitation of three years, the filing of writ petition is after five years. The aforesaid situation is obtaining even if we exclude from consideration the earlier order of dismissal dated 05.05.1982 (P-2) and the appellate order upholding the order of dismissal dated 01.09.1982 and the revisional order dated 01.04.1984. The LPA No. 881 of 2011(O&M) -8- appellant is making effort to invent a cause of action to bring his case within the period of limitation but has miserably failed in that regard. Therefore, the submission made by Mr. Chhibbar does not carry any weight and is hereby rejected. 9. The other submission that the principle of delay and laches is not a rule of law but a rule of practice would also not require any detail consideration because the aforesaid principle might come to the rescue where no third party rights have accrued. In the present case, the appellant who have been working on the post of Branch Officer in the respondent-Markfed was dismissed from service on 05.05.1982 and the post held by him could not have been kept vacant. It must have been occupied by a new incumbent. Such an incumbent must have earned promotion at this belated stage. It is not possible to encroach upon the right of such a third party. Therefore, we are unable to agree with the submission made by the learned counsel that no third part rights have accrued in the present appeal, especially when it is settled by a Constitution Bench of Hon'ble the Supreme Court in Bhailal Bhai's case (supra) that ordinarily the period of limitation provided for filing of writ petition is not more than the one prescribed for filing of a civil suit. Therefore, without setting aside the order of his dismissal passed in 1982 which attained finality with the dismissal of the revision petition on 04.01.1984, no relief could be granted to the appellant. Such a course is obviously LPA No. 881 of 2011(O&M) -9- cannot be adopted as it would amount to reopening the issue after more than 24 years. Accordingly, we uphold the view taken by the learned Single Judge that the writ petition filed by the appellant suffered from delay and laches and could not be entertained. 10. We are in agreement with the learned Single Judge that observations, if any, made by the Arbitrator in subsequent recovery proceedings have no bearing on the conclusion reached by the enquiry officer which has led to the appellant's dismissal in 1982. 11. As a sequel to the above discussion, the appeal fails and the same is dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) JUDGE May 19, 2011 Atul