Basanti Prasad Vs.
Chairman, Bihar School Exam.Board & Ors.  INSC 1067 (14 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3564 OF 2009 (Arising out
of SLP(C) No. 9263 of 2008) Basanti Prasad ..........Appellant Versus The
Chairman, Bihar School Examination Board and Others ........Respondents
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.
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
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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."
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 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."
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 change in situation, the prejudice which is likely to be caused to the
opposite party or to the general public etc."
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.
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 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.
relief the appellant is entitled to is the main issue that falls for
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.
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."
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
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.
.......................................J. [TARUN CHATTERJEE]
[ H.L. DATTU ]