IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3833 of 2009 Ambika Prasad Singh . Versus The State Of Bihar & Ors . ----------- 3. 18.07.2011 Heard learned counsel for the petitioner and the State. The petitioner was departmentally proceeded with. An order of punishment was passed on 1.8.1998 as follows:- (a) for censure to be entered in his character roll for the year 1986-87 (b) withholding of three increments with non-cumulative effect and (c) withholding of promotion for five years from the date of punishment. This has subsequently been modified on 20.8.2009, by which the withholding of the increments has been annulled. Learned counsel for the petitioner submitted that the punishment itself is vitiated as the petitioner was sought to be proceeded with departmentally for works which were not in his jurisdiction. As a consequence of denial of promotion for five years, his A.C.P. benefits have been given from 9.8.2004 while he would be entitled to the same from 9.8.1999 under an order dated 24.2.2009. Relying on 2008(2) PLJR (SC)266 (Ashok Kumar Vs. State of Bihar), 2005(2) SC PLJR 209 2 (State of Nagaland Vs. Lipok AO & Ors.) at Paragraph-13, A.I.R. 1974 SC 259 ( Ramchandra Shankar Dewdhar Vs. State of Maharashtra), 2005(2) PLJR 230 (State of Bihar & Ors. Vs. Janardan Prasad Singh & Anr.), it was urged that the delay in challenging the order of punishment was inconsequential if the punishment was arbitrary on the very face of it and suffers from an inherent defect. The petitioner had filed an appeal on 5.12.1998 and which remains pending till date. Therefore so long as the appeal is not disposed off the right to challenge the punishment subsists. The power under Article 226 is discretionary in nature. The exercise of discretion is to be tempered with law and reason. It is not absolute. The aspect of delay therefore has to be considered judiciously on the facts of each case. There can be no generalized yardstick across the board. This salutary principle stands well explained in Paragraph-9 in the case of R.S. Dewdhar (supra) relied upon by the petitioner that consideration of stale claims was a practice based on sound and proper exercise of discretion to be determined on the facts of each case dependent of 3 the breach, the remedy and the explanation for the delay. The facts of the case were that the petitioners were made to believe by the respondents on a course of action. But it transpired from the stand of the respondents in another case that the former was incorrect. This was accepted as sufficient explanation for the delay. It is completely distinguishable on facts. In the case of Ashok Kumar (supra) the delay of four years was condoned in view of the fact that representation/review had remained pending. In the present case the appeal itself was filed in 1998 when the writ petition alleging non disposal of the same has been filed 11 years later in 2009 with no explanation for the delay. In State of Nagaland (supra) it was noticed at Paragrah-13 that if refusal to condone the delay resulted in miscarriage of justice, it may be a ground for condoning the delay. The entire consideration came to be made in the background of an application under Section 5 of the limitation act dealing with the words “sufficient cause” in context of the observation that delay is not occasioned deliberately as the litigant does not stand to benefit by resorting to delay, in fact he runs a serious risk. In a present 4 case the petitioner has taken that risk. In a punishment arising out of a departmental action, the Court is not concerned with the merits of the decision but it is concerned with the decision making process. If a fair opportunity was given to the delinquent and his defence was considered but rejected, the delinquent cannot invite the Court to step into the shoes of the disciplinary authority and sit as an appellate authority to reappraise facts. The order of punishment was passed on 1.8.1998. The period for which the censure operates ended in 1990. The duration of withholding promotion has also run its course in 2003. True it is that the petitioner filed an appeal on 5.12.1998. He gave a reminder on 14.6.1999 followed by 18.8.2001 and then went to sleep for eight long years till he filed the writ application. Had he moved during the duration of the punishment or even soon thereafter there may have been occasion for the Court to examine matters. On the peculiar facts of the case when the punishment has run its course and the petitioner himself has to accept responsibility for the dereliction on his part in not having been vigilant for 5 the protection of his own rights and having waited inordinately long without any explanation for the delay, the Court is not persuaded today to interfere with the punishment. The issue has become more academic now. In so far as pending appeal is concerned, both the petitioner and the State must share the blame to the extent of each. The present order shall therefore not be construed as any observation or opinion debarring the State from considering the appeal, should the petitioner approach them. The disposal of the writ application on the ground of delay and laches does not preclude the respondents from considering the appeal on its own merits. The writ application is dismissed on grounds of delay and laches. P. Kumar ( Navin Sinha, J.)