Ex-Capt. Harish Uppal Vs. Union of India [1994] INSC 203 (30 March 1994)

Jeevan Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Hansaria B.L. (J)

CITATION: 1994 SCC Supl. (2) 195 JT 1994 (3) 126 1994 SCALE (2)404

ACT:

HEAD NOTE:

Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Heard the petitioner-in-person in support of this special leave petition. We have also perused the written submissions filed by him. We find no substance in the special leave petition.

2.The special leave petition is directed against an order of the Division Bench of the Delhi High Court dismissing the petitioner's writ petition ummarily on two grounds, viz.,

(1) that the petitioner had approached the From the Judgment and Order dated 16-3-1984 of the Delhi High Court in C.W.P. No. 827 of 1984 196 Supreme Court but his petition was dismissed by the Supreme Court on 27-11-1972 reported as Harish Uppal v. Union of India' and

(2) that his petition is highly belated.

Whatever may be said about the first ground, the second ground given by the High Court is, in our opinion, perfectly justified. It cannot be saidthat the High Court has exercised its discretion in an arbitrary or illegal manner.

A few facts will make it clear.

3. The petitioner was commissioned in the Indian Army (Artillery Regiment) in June 1965. He was in the unit which was sent to Bangladesh in connection with military operations there in December 1971. In respect of certain irregularities committed by the petitioner, a court-martial was held against him at which he was found guilty and he was awarded the punishment of (a) dismissal and (b) two years' rigorous imprisonment. This punishment was imposed after giving the petitioner an opportunity of pre-confirmation hearing as provided by Section 164(1) of the Army Act, 1950.

The final orders imposing the said punishment were passed on 14-8-1972 and communicated to the petitioner on 3-9-1972.

4.While the petitioner was in prison, his advocate sent a post-confirmation petition under Section 164(2) of the Army Act to the Government of India. The petitioner says that he received the Government of India's reply on the said representation only on 11-11-1983 (i.e. about 11 years later), whereas respondents' case is that the order rejecting the said post-confirmation petition was duly communicated to his advocate, Shri Suresh Vohra on 18-9-1973 vide Letter No. 7(17)/72/D(AG-1) dated 18-9-1973. It is also stated that the petitioner's elder brother filed Writ Petition No. 456 of 1972 for issuance of a writ of habeas corpus in this Court seeking the release of the petitioner.

The writ petition was dismissed by this Court on 27-11-1972.

5.In 1983, the petitioner approached this Court by way of another writ petition being Writ Petition No. 12590 of 1983, which was dismissed in limine directing the Government of India to communicate its orders upon the petitioner's post- confirmation petition, if not already communicated. The petitioner says that it was only thereafter that he received the orders of the Government upon his post-confirmation petition. He then approached the Delhi High Court by way of Writ Petition No. 827 of 1984 which has been dismisseed summarily as stated hereinbefore.

6.On a perusal of the pleadings of the parties before us, we are satisfied that the order rejecting the post- confirmation petition filed by the petitioner were duly communicated to him as affirmed by the Union of India in its counter-affidavit. Not only the Union of India has given the reference number and the date of the letter rejecting the said petition but has also mentioned several facts in support of its averment and also to establish that until 1983 the petitioner never complained of not receiving the said orders of rejection. The facts referred to in the counter-affidavit are: (a) the petitioner filed a request for an interview with the Chief of Army Staff. This request was rejected .under Letter No. A/36044/PS 1-B dated 27-3- 1976. In this letter also it was reiterated that the post- confirmation petition filed by the petitioner was rejected already. (Copy of the letter is enclosed as Annexure-I to the counter which clearly says so and also gives the reference of the letter dated 18-9-1973.) (b) 197 On 20-4-1983 the petitioner submitted a fresh petition under Section 164(2). In this letter the petitioner did not complain that he was not informed of the rejection of his earlier petition under Section 164(2). He merely sought for reconsideration of his case.

7.It is also stated in the counter-affidavit that this second petition under Section 164(2) was processed and sent to Central Government because at that time the records relating to rejection of earlier petition were not available. It is also pointed out that no person would have kept quiet for a period of more than 10 years without taking any steps if he had not really received the orders upon his petition. It is stated that the said rejection orders were sent to the petitioner's advocate under registered post and they were not returned to the department which indicates its receipt by the addressee. On the basis of the above facts, we accept the case of the Government of India on this aspect. Once this is so, it cannot be said that the petitioner is not guilty of laches.

8.The petitioner sought to contend that because of laches on his part, no third party rights have intervened and that by granting relief to the petitioner no other person's rights are going to be affected. He also cited certain decisions to that effect. This plea ignores the fact that the said consideration is only one of the considerations which the court will take into account while determining whether a writ petition suffers from laches. It is not the only consideration. It is a well-settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the Limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. We cannot say that the High Court was not entitled to say so in its discretion.

9.In the face of the above factual position, the petitioner cannot also take advantage of the ex parte orders made by this Court on 11- 11- 1985 in Writ Petition No. 12590 of 1983 which merely says that if really the petitioner has not been communicated the orders upon the post-confirmation petition as alleged by him, the same may be communicated to the petitioner at an early date. The order of the Supreme Court which is ex parte, and without notice to the respondents therein, reads thus:

"Writ Petition is dismissed. It is submitted by the petitioner that he has already made a representation to the Central Government on 5- 10-1972 against the order (against the finding and conviction recorded against him) by the Court-Martial and the sentence given on 15-5- 1972 under Section 164 sub-section (ii) of the Army Act, 1950 which was confirmed by the Chief of the Army Staff and that this petition has not been disposed of despite several reminders. If this be so we would ask the Central Government to dispose of this matter as early as possible and in any event, not later than the expiration of three months from today. This order may be communicated to the Secretary, Ministry of Defence, Government of India." (emphasis added) 10.Yet another submission urged by the petitioner is that where the order impugned is without jurisdiction, the plea of laches ought not to be entertained. He sought to bring certain decisions in support of this contention. The petitioner 198 could not, however, satisfy us as to why the order impugned in the writ petition is without jurisdiction. In this view of the matter, it is not necessary to deal with the decision cited.

11.In the circumstances, we see no substance in this special leave petition which is accordingly dismissed. No order as to costs.

12. No orders on civil miscellaneous petition.

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