W.P.(C)/5800/2013 of NAIK RAJENDRAN R Vs UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI+ W.P.(C) 5800/2013 NAIK RAJENDRAN R ..... Petitioner

..... Petitioner

Through: Major K. Ramesh, Advocate

versus

UNION OF INDIA & ORS.

..... Respondents Through: Mr. Aditya Malhotra, Central Government Standing Counsel for the UOI.

CORAM:HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE NAJMI WAZIRI O R R

21.08.2014

KAILASH GAMBHIR, J. (ORAL)

1. By the instant petition filed under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge the order dated 19[th]October 2012 passed by the learned Armed Force Tribunal thereby dismissing the O.A.No.5/2012 filed by the petitioner on the ground that there was an inordinate delay on the part of the petitioner.

2. The facts of this case in brief are that the petitioner was enrolled as

Sepoy in the Army Medical Corps and he was dismissed from service after he was tried by Summary Court Martial. The petitioner had filed

statutory petition before the Chief of Army Staff against the findings and sentence order passed by the Summary Court Martial. On 10.12.1988,

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the petitioner submitted statutory petition to the Chief of Army Staff against the finding and sentence of Summary Court Martial. The statutory petition was not disposed of by the Chief of Army Staff and because of this inaction on the part of the Chief of Army Staff, the petitioner had filed Civil Writ Petition No.23035/2000 before the Hon’ble Kerala High Court, which was disposed of vide order dated 15[th]June 2006 directing the Chief of Army Staff to dispose of the statutory petition filed by the petitioner.

3. On 20[th] April 2007, the petitioner had received communication from the Army Headquarter along with order of the Chief of Army Staff rejecting the aforesaid statutory petition. This led to the filing of O.A. No.5/2012 before the learned Armed Force Tribunal, when the said OA was taken up before the learned Armed Forces Tribunal, it directed the counsel representing the petitioner to file separate application to seek condonation of delay. Accordingly, the petitioner had preferred MA No.7/12 to seek condonation of delay in filing the O.A. No.5/12. Vide orders dated 19.10.2012, the learned Armed Force Tribunal dismissed the said miscellaneous application filed by the petitioner and consequently dismissed the O.A. as time barred. The said order dated 19[th] October

2012 passed by the learned Armed Force Tribunal is challenged in the present petition.

4. Major K. Ramesh, counsel appearing for the petitioner submits that, for dismissing the said OA, the learned Armed Force Tribunal merely relied on the case of ERA Rakesh Kumar Aggarwal vs. Union of India & Ors (OA No.55/2012 dated 17.2.2012). But by order dated 22[nd]July 2014 passed by this Court in W.P. (C) No.3755/2013 titled as Rakesh Kumar Aggarwal vs. Union of India & Ors., this Court while setting aside the order passed by the learned Armed Force Tribunal in that case, remanded the matter back to the learned Armed Force Tribunal for deciding the OA filed by the petitioner on its merits. Counsel for the petitioner also submits that this Court in the said order dated 22[nd] July 2014 has also highlighted the distinguishing feature in D.C.S. Negi vs. Union of India & Ors, (SLP (C) CC No.3709 of 2011 dated 7.3.2011) case, where the subject matter relates to case of promotion. Counsel, thus, urges that similar direction be passed by this Court in the present case as well to remand the matter back to the learned Armed Force Tribunal for adjudicating the case of the petitioner on its merits.

5. Counsel for the petitioner also placed reliance on the judgments of

the Apex Court in Union of India and others vs. Tarsem Singh, (2008) 8 SCC 648; order dated 12.1.2011 passed in W.P. (C) No.6458/200 titled as Sh. Sadashiv Haribabu Nargund & Ors vs. Union of India & Ors.; order dated 9[th] February 2012 passed by the learned Armed Force Tribunal, Regional Bench, Kochi in M.Vijayan Unni vs. Union of India & ors.; order dated 19.12.2012 passed in O.A.No.256 of 2011 titled as Maj.K.G. Thomas vs. Union of India & Ors.; order passed by the Apex Court dated 9.4.2012 passed in Civil Appeal Nos.2970-2971/2012 titled as Manibed Devraj Shah vs. Municipal Corporation of Brihan Mumbai; and judgment of the Apex Court in Criminal Appeal No.484 of 2005 titled as State of Nagaland vs. Lipok AO & Ors., decided on 1.4.2005.

6. We have heard the learned counsel for the parties and given our thoughtful consideration to the arguments advanced by them.

7. The law of limitation is enshrined in the legal maxim “Interest

Reipublicae Ut Sit Finis Litium” i.e. it is for the general welfare that period be put to litigation- Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for legislatively fixed period of time.

8. In recent judgment of the Apex Court in the case of Brijesh

Kumar & Ors. V. State of Haryana & Ors., reported in AIR 2014 SC 1612, the Apex Court succinctly held that disclosure of sufficient cause is condition precedent for the exercise of discretion by the Court for condoning the delay. The Court also held that time and again it has been asserted that when mandatory provision is not complied with and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on mere sympathetic grounds alone. We may usefully refer to the following paras of the said judgment as under:-

“11. The courts should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. However, the court while allowing such application has to draw distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone.

12. It is also well settled principle of law that if some person has taken relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the Court at belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

13. In State of Karnataka v. S.M. Kotrayya, (1996) 6 SCC 267, this Court rejected the contention that petition should be considered ignoring the delay and latches on the ground that he filed the petition just after coming to know of the relief granted by the Court in similar case, as the same cannot furnish proper explanation for delay and latches. The Court observed that such plea is wholly unjustified and cannot furnish any ground for ignoring delay and latches.”

9. It is settled legal position that pedantic approach to judge the case of the party only on the ground that such party has failed to explain each day’s delay or the delay has not been explained with utmost precision and perfection should not be adopted as the rules of limitation and procedural laws are not meant to destroy the rights of the party. At the same time, the question which we are confronted with in the present case is whether party who has been thoroughly negligent and sleeps over his rights can be given liberty to just wake up and cry foul and rush to the Court as and when he so likes, not only ignoring the law of limitation but also giving not any reason or just explanation for not approaching the Court with promptness and alertness.

10. In Esha Bhattacharjee v. Managing Committee of Raghunathpur

Nafar Academy, reported in (2013) 12 SCC 649, the Apex Court took view that the conduct, behaviour and attitude of party relating to its

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inaction or negligence are relevant factors to be taken into consideration

and lack of bona fides of party seeking condonation of delay is significant and relevant fact. Relevant para of the said judgment is reproduced as under:

“21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to party seeking condonation of delay is significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot

be allowed totally unfettered free play.

21.8. (viii) There is distinction between inordinate delay and delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective

reasoning and not on individual perception.

21.13. (xiii) The State or public body or an entity representing collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in haphazard manner harbouring the notion that the courts are required to

condone delay on the bedrock of the principle that adjudication of lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as non-serious matter and, hence, lackadaisical propensity can be exhibited in nonchalant manner requires to be curbed, of course, within legal parameters.”

11. In the facts of the present case, the petitioner had filed an OA No.05/2012 to challenge the order of his dismissal and the findings and sentence of Summary Court Martial after his statutory petition was dismissed by the order of the Chief of Army Staff dated 19.04.2007. Along with his OA, the petitioner had filed separate application vide M.A. No.07/2012 to seek condonation of delay in filing the said OA.

Neither in his OA nor in his said application had the petitioner given any explanation for not approaching the Armed Forces Tribunal till the year 2012. As per the pronounced case of the petitioner, the statutory petition of the petitioner was dismissed on 19.04.2007 and the same was

conveyed to him on the very next date, i.e., on 20.04.2007 but it took the petitioner about 5 years to seek his legal remedy by filing the said OA No.05/2012 before the learned Armed Forces Tribunal. The learned Armed Forces Tribunal is correct in saying that filing of the M.A. by the petitioner is thing of last priority, although the petitioner was fully aware of the legal process, as earlier also he had filed writ petition in the Kerala High Court which remained pending for six years. The learned Armed Forces Tribunal is correct in saying that no sufficient grounds have been disclosed by the petitioner for the delay in filing the said OA. Law and Equity aid the vigilant not those who slumber on their rights.

12. In the light of the above position, we do not find any infirmity in the order passed by the learned Armed Forces Tribunal, the order dated 22.07.2014 passed by this Court in the case of Rakesh Kumar v. Union of India can be of no help to the facts of the present case.

The present petition is dismissed accordingly.

KAILASH GAMBHIR, J

AUGUST 21, 2014 Pkb/v

NAJMI WAZIRI, J