Basanti Prasad vs Chairman, Bihar School Exam.Board & Ors

Basanti Prasad ..........Appellant

Versus

The Chairman, Bihar School Examination Board and Others ........Respondents

ORDER

Leave granted.

2) This is a petition for special leave to appeal under Article 136 of the

Constitution from the judgment and order dated 12.7.2007 of the High

Court of Judicature at Patna in L.P.A. No. 521 of 2007. By the

impugned judgment, the High Court has dismissed the appeal.

3) The relevant facts are, the appellant is the wife of deceased Bhrigu

Ashram Prasad. While he was alive, he was working as an Assistant

in Bihar School Examination Board.

4) Sometime in the year 1976, the appellant's husband was kept under

suspension on account of initiation of criminal proceedings against the

appellant's husband and other employees of the Board for tempering

1 with the Marks Sheets of several candidates who had appeared in the

Annual Secondary School Examination.

5) On the complaint filed by the Board, the jurisdictional police

authorities had filed charge sheet against the appellant's husband and

other employees of the Board under Section 420, 467, 471, 458 and

120-B of the I.P.C. before Judicial Magistrate, Patna. After the trial,

the Judicial Magistrate had convicted the appellant's husband and

other employees of the Board for the offences alleged in the charge

sheet and sentenced them to undergo rigorous imprisonment for two

years for each of the offences under Section 467, 468, 471 and 120-B

of the I.P.C. by his order dated 7.2.1989.

6) The appellant's husband and other charge sheeted employees had filed

Criminal Appeals before the Additional Sessions Judge, Patna, being

aggrieved by the order passed by the Judicial Magistrate, Patna.

7) While the appeals were pending for consideration, the Bihar School

Examination Committee, Patna, by its order dated 4th August, 1992,

terminated the services of the appellant's husband, since he had been

convicted by the learned Chief Judicial Magistrate, Patna, for offences

under I.P.C. in Crime Case No. 18/7/TR No. 121/1998 of Police

Station Kotwali, Patna.

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8) The appellant's husband expired during the pendency of the appeal

before the Sessions Court, Patna. With the permission of the court,

the appellant herein had continued to prosecute the criminal appeal.

The learned Sessions Judge, Patna, has allowed the appeals and

thereby has acquitted the appellant's husband and others.

9) After disposal of the criminal appeal, the appellant had approached

the Bihar School Examination Committee by filing representations,

inter alia representing, that, since her husband has been honourably

acquitted by the Sessions Court in the criminal appeal filed by him

against the order of conviction passed by the Judicial Magistrate, the

appellant's husband is deemed to have remained in service till the date

of retirement from service and, therefore, she is entitled for all the

retiral benefits of her late husband. Since her representations were

rejected by the Board (Committee), the appellant was constrained to

file the writ petition before High Court of Judicature at Patna in

C.W.J.C. No. 14536 of 2005, inter alia seeking a writ in the nature of

mandamus to the Bihar School Examination Board to settle all the

monetary and service benefits payable to her late husband. During the

pendency of the writ petition, appellant had filed I.A. No. 1256 of

2007, inter alia requesting the court to issue a writ in the nature of

certiorari to quash the order passed by the Board (Committee) dated

3 4th August, 1992, terminating the services of the appellant on the

ground that he has been convicted in a criminal case.

10) The court has rejected the writ petition, primarily on the ground that,

since the appellant's husband had not questioned the order of

termination dated 4.8.1992, while he was alive and at this belated

stage the appellant cannot be permitted to question the order of

termination of services passed by the Board (Committee). According

to the learned Judge, the delay and laches on the part of the appellant

in questioning the said order by filing application on 26.2.2007 is fatal

and the same cannot be condoned. It is also observed in the order,

since the appellant's husband was terminated from service, in view of

the order of conviction passed by a criminal court and since that order

is neither modified nor annulled by any superior forum, the appellant

is not entitled to the relief sought for in the writ petition. The Letters

Patent Appeal filed by the appellant is rejected by the High Court on

the ground, that, the appellant's husband had not questioned the order

of termination passed by the Board (Committee), while he was alive

and, therefore, the appellant is not entitled for any relief, since

according to them, it appears to be a case of acquiescence. The court

has also observed, that, nothing prevented the appellant's husband

while he was alive to challenge the order of dismissal passed by the

4 Board before the competent forum. The appellant is before us in this

appeal, being aggrieved by the aforesaid finding and the conclusion

reached by the court in L.P.A. No. 521 of 2007 dated 12.7.2007.

11) The learned counsel for the appellant would contend, that, the

deceased employee while he was in service, did not challenge the

order of dismissal passed by the Board (Committee), since the

dismissal order was the direct result of his conviction by the learned

Magistrate for the offences punishable under the provisions of Indian

Penal Code. Assuming even he had questioned it before any superior

forum, it would not have yielded any better result, since Bihar

Service Code authorizes the employer to terminate the services of

government employee, if he is convicted for offences punishable

under Indian Penal Code by a competent criminal court, and since the

result of the appeal was obvious, the appellant's husband had not

questioned the order, terminating his services by the Board. Further,

the learned counsel would submit, even if he had filed Writ Petition

under Article 226 and 227 of the Constitution, he would not have been

successful, since the Bihar Service Code authorizes the employer to

severe the relationship of employer and employee, if for any reason,

an employee is convicted for offences under the Indian Penal Code. It

is also submitted, that the delinquent employee could not have kept

5 the petition alive before the High Court, on the ground, that, his

criminal appeal is pending before the Sessions Court against the order

of conviction passed by Judicial Magistrate. Therefore, it is pointed

out by the learned counsel, that, the High Court has committed an

error in rejecting the relief sought by the appellant only on the ground,

that, in the petition filed in the year 2005, the appellant could not have

called in question the order of dismissal passed by the Board

(Committee) against her husband in the year 1992. It is further

argued by the learned counsel for the appellant that during the

pendency of the criminal appeal filed before the Sessions Court

against the order of conviction passed by the learned Magistrate, the

appellant's husband could not have sought for any relief from any

other forum, since the order of dismissal was staring at the appellant

and the cause of action for the appellant did arise only after disposal

of the criminal appeal, wherein the Sessions Court has acquitted the

appellant's husband and other employees of the Board.

12) The learned counsel for the respondent in the course of his argument

would submit; that, since the deceased employee did not challenge his

order of dismissal from service during his life time, the High Court

was justified in rejecting the appeal on the ground of acquiescence,

estoppel and delay. It is further contended, that, since the appellant's

6 husband has expired, the Board (Committee) cannot initiate any

disciplinary proceedings in which charges alleged against the

appellant's husband could have been proved and established. It is

further submitted by the learned counsel for the respondent, that, the

High Court was justified in rejecting the application filed by the

appellant for amendment of the prayers made in the Writ Petition, by

making an application seeking additional relief in the year 2007.

Lastly, it is submitted merely because, the appellant's husband was

acquitted of all the criminal charges by the Sessions Court, it does not

ipso facto would entitle the appellant for all the reliefs claimed in the

writ petition and, at any rate, the appellant is not entitled to arrears of

salary from the date of termination till the employee is deemed to

have retired from service on attaining the age of superannuation. In

aid of submission, the learned counsel brings to our notice the

observations made by this Court in the case of G.M. Tank vs. State of

Gujarat, (2006) 5 SCC 446.

13) Before the High Court, the principal question for consideration was

whether the appellant should be non-suited only on the ground that

she had belatedly questioned the order of dismissal passed against her

late husband in the year 1992 in a petition filed in the year 2005 and

the other incidental issue was, whether the appellant is entitled for

7 monetary and service benefits in view of the order passed by the

Sessions Court acquitting the appellant's husband from the offences

alleged against him under Indian Penal Code by setting aside the order

passed by the Judicial Magistrate who had convicted him for those

offences after a full fledge trial.

14) In the normal course, we would not have taken exception to the order

passed by the High Court. They are justified in saying that a

delinquent employee should not be permitted to revive the stale claim

and the High Court in exercise of its discretion would not ordinarily

assist the tardy and indolent person. This is the traditional view and is

well supported by plethora of decisions of this Court. This Court also

has taken the view, that, there is no inviolable rule, that, whenever

there is delay the court must refuse to entertain a petition. This Court

has stated that the writ court in exercise of its extraordinary

jurisdiction under Article 226 of the Constitution may condom the

delay in filing the petition, if the delay is satisfactorily explained

15) Reference may be made at this stage to the decisions of this court in

the case of Moon Mills Ltd. vs. M.R. Mehar, President, Industrial

Court, AIR 1967 SC 1450 and Maharashtra State Road Transport

Corporation vs. Balwant Regular Motor Service, (1969) 1 SCR 808,

wherein this court has approved the view expressed by the Privy

8 Council in the case of Lindsay Petroleum Co. vs. Prosper Armstrong

Hurd Abram Farewall and John Kemp (1874) 5 PC 221. The court

had observed :-

"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. Two 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 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."

16) In State of Madhya Pradesh Vs. Nandlal Jaiswal (1986) 4 SCC 566,

it was held as under :-

"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

9 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."

17) In Shri Vallabh GlassWorks Ltd. Vs. Union of India (1984) 3 SCC

362, it was observed:

"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 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

10 change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc."

18) We do not think it necessary to burden this judgment with reference to

various decisions of this Court, where it has been emphasized 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. However, if the delay is properly

explained, and if the third party rights is not going to be effected, the

High Court may entertain the petition and consider the case of the

aggrieved person on merits.

19) Now reverting back to the facts of this case, The services of the

appellant's husband was terminated only on the ground, that he was

convicted by a Judicial Magistrate for certain offences under the

provisions of Indian Penal Code. It is not a case where the delinquent

employee was dismissed from service on the ground that he was

charge sheeted by the police for certain offences under Indian Penal

Code after holding a departmental enquiry. In the later circumstances,

the delinquent employee could not have been heard to say that he did

not question the order within a reasonable time, since the order of

conviction passed by the Judicial Magistrate has nothing to do with

the order passed by disciplinary authority. As we have already

11 noticed, the dismissal was in view of the order of conviction passed

by the Magistrate, till that order is set aside by a superior forum, the

appellant's husband or the appellant could not have questioned the

same till he was acquitted by the Sessions Court. In view of these

peculiar circumstances, in our view, the High Court was not justified

in rejecting the prayer of the appellant primarily on the ground of

delay and laches on the part of the appellant in questioning the order

of termination passed on 4.8.1992 in a petition filed in the year 2005.

In the present case, we are of the opinion that there is no such

negligence or laches or acquiescence on the part of the appellant as

may disentitle her for grant of a writ. Having said so, the matter

requires to be remanded back to the High Court for taking a decision

on the merits of the case. But taking into consideration the pendency

of the litigation between the parties from last one decade and taking

also into consideration the plight of the poor widow who is fighting

the litigation before various forums with limited resources, we desist

from remanding the matter and we intend to decide the matter on

merits here itself in order to give quietus to this litigation.

20) What relief the appellant is entitled to is the main issue that falls for

consideration.

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21) The facts are not in dispute. The services of the appellant's husband

was terminated only on the ground that he was convicted by a Judicial

Magistrate for the offences under Indian Penal Code. That only

means, no independent departmental enquiry was held against the

delinquent employee. In the appeal filed before the Sessions Court

against the order of conviction, the appellant has succeeded. Since,

the punishment imposed was based on an order of conviction and

since the same is set aside by an order passed by a superior forum and

that order having become final for various reasons, including the

death of the appellant's husband, as natural corollary, the request of

the appellant requires to be redressed by the employer and since that

was done, a writ court ought to have come exercised its extraordinary

jurisdiction by commanding the respondents to redress the grievance

of the appellant without resorting to a hypertechnical approach. In

view of the above, the order passed by the respondents terminating the

services of the appellant requires to be set aside and we do so.

22) It is argued by the learned counsel for the respondent that if the delay

is condoned and relief is granted to the appellant, the respondent had

to bear the brunt of paying huge arrears of salary and other monetary

benefits and, secondly, direction to pay arrears of wages is not

automatic and it depends on several factors. The learned counsel has

13 drawn our attention to the observation made by this court in the case

of G.M. Tank vs. State of Gujarat, wherein this court has stated :-

"32. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8-2-1979 and got subsistence allowance of Rs 700 p.m. i.e. 50% of the salary. On 15-10-1982 dismissal order was passed. The appellant had put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February 1986. On the basis of the same charges and the evidence, the department passed an order of dismissal on 21-10-1982 whereas the criminal court acquitted him on 30-1-2002. However, as the criminal court acquitted the appellant on 30-1-2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30-1-2002. But by then, the appellant had retired; therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension."

23) The facts in the aforesaid decision is more or less akin to the facts and

circumstances of this case. Therefore, the issue that we have raised

for our consideration need not detain us for a long. Therefore, we are

of the view that the appellant is not entitled to back wages. The

appellant would be entitled to pension only.

24) In the result, we allow this appeal. We set aside the order passed by

the learned Single Judge in CWJC No.14536 of 2005 dated

02.05.2007 as affirmed in L.P.A. No. 521 of 2007 dated 12.07.007.

However, there shall be no order as to costs.

14 .......................................J. [TARUN CHATTERJEE]

.......................................J. [ H.L. DATTU ] New Delhi, May 14, 2009.

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