Balwinder Singh Saini v. State Of Punjab And Others

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of Decision : 31.05.2024 BALWINDER SINGH SAINI ... PETITIONER

Versus

STATE OF PUNJAB AND OTHERS ... RESPONDENTS CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL Present :

Mr.Mansur Ali, Advocate for the petitioner.

Mr. Aman Dhir, DAG, Punjab.

**** JAGMOHAN BANSAL, J. (Oral) 1.

The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking setting aside of : (i) order dated 15.01.2009 (Annexure P-2) whereby punishment of forfeiture of 02 years service was imposed; (ii) order dated 09.07.2009 (Annexure P-3) whereby his appeal was dismissed and;

(iii) order dated 17.10.2019 (Annexure P-4) whereby his review/revision was dismissed.

2.

The respondent passed order of punishment on 15.01.2009 and appeal of the petitioner was dismissed on 01.07.2009. He further

preferred petition before DGP which came to be dismissed vide order dated 17.10.2019.

3.

First order of punishment was passed in January' 2009 and appellate order was passed in July' 2009. The review petition before DGP was dismissed on the ground of delay. He has preferred present petition before this Court after the expiry of 15 years from the date of appellate order and 05 years from the order passed by DGP. Mr. Mansur Ali, Advocate could not advance any plausible reason to entertain petition after the expiry of such a long period. 4.

No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. Where illegality is manifest, it cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. State cannot deprive vested right because of a nondeliberate delay. 5.

A two Judge Bench of Supreme Court recently in 'Mrinmoy Maity Vs. Chhanda Koley and others' 2024 SCC OnLine SC 551 has held that High Court ought to dismiss petition on the ground of delay and laches where there is no explanation of delay. An applicant who approaches the Court belatedly or in the other words sleeps over his rights for a considerable period ought not to be granted the extraordinary

relief by writ Courts. Delay defeats equity. High Court may refuse to invoke its writ jurisdiction if laxity on the part of applicant has allowed the cause of action to drift away and attempts are made to rekindle the lapsed cause of action. Multiple communications cannot create cause of action. The relevant extracts of the judgment are reproduced as below: "9.

Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been nonsuited or in other words writ petition ought to have been dismissed on the ground of delay and latches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

10.

The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and

circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

11.

For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court."

6.

This Court finds no explanation for delay in the instant case. The petitioner's appeal was dismissed on 01.07.2009 and he opted to remain silent till 2019 and DGP dismissed his review petition on the ground of delay on 17.10.2019. By way of present petition, he is attempting to revive lapsed cause of action. The present petition deserves

to be dismissed on the ground of delay and laches and accordingly dismissed.

(JAGMOHAN BANSAL) JUDGE 31.05.2024 anju Whether speaking/reasoned Yes/No Whether reportable Yes/No