1. It is a matter of regret that this petition has to be dismissed in limine on the ground of delay.
2. The facts are somewhat peculiar in the sense that the petition was filed as early as the 26th August 1971 and the order impugned is dated the 4th of August 1971, so that it could never be said that the petition was filed after any delay. But it is to be noticed that in this particular case the subsequent event demonstrate gross delay on the part of the petitioner.
3. Some of the relevant dates may be noticed. The petition was lodged on the 26th August 1971. An ex parte application for admission of Writ Petition was made by the petitioner on the 28th of August 1971, when the matter was placed before Chandrachud. J. and the petition was adjourned obviously on the request of the petitioner to enable to petitioner to consider an amendment of the petition. I am told that the only amendment contemplated was as to whether the Union of India or the then chairman of the Atomic Energy Commission were to be impleaded as parties.
4. Two days thereafter, that is to say, on the 30th of August 1971, the matter again was mentioned for amendment and admission when the following order was passed:
'Leave to amend the petition in terms of the draft handed in and marked 'X' Petition stood over till 13th September 1971 for admission'.
However, on the 11th of September 1971 i.e. two days before the date fixed, the petition was again mentioned and on that day the Court passed an order as follows:-
'Petition to stand adjourned to 20th September 1971 from 13th September 1971 as Mr. Menon for the petitioner is indisposed'.
5. It is significant that nothing appears to have been done thereafter by the petitioner or his advocate and it is not known whether the petition came up for admission on the 20th September 1971 or never appeared on Board. What is, however, undisputed is that the amendment for which leave had been granted on the 30th August 1971 was never carried out.
6. For 21 whole months the petition lay in its docket in the Court and no action was taken by the petitioner to move the Court for acceptance of the petition. After this long period of 21 months the matter was again mentioned on the 4th July 1973 when an application was made to the Court by the petitioner for amendment of the petition which had been permitted by the Court on 30th August 1971.
7. It is to be notice that the amendment had already been allowed and it was only the carrying out of the amendment in respect of which condemnation was sought. On the application of the advocate for the petitioner the delay to carry out the amendment was condoned. It appears that the amendment was then carried out by making the Union of India a party respondent.
8. On the 16th of July 1973 when the matter came up before me I ordered notice for admission to be issued returnable on 23rd July 1973.
9. A somewhat interesting and in my opinion an important question which now arises is whether the delay after lodging of the petition can be excluded from consideration by the Court for the purpose of admission of the petition.
10. There is no affidavit or any satisfactory explanation forthcoming from the petitioner to show to the Court that this delay between September 1971 and July 1973 was unavoidable or that there were good reasons for which the Court may exercise its discretion of condoning the delay.
11. Mr. Baldota who appears fro the petitioner, has drawn my attention to a judgment of Kantawala, J. (as he then was ) in Misc. Petn. No. 476 of 1963, V. N. Bhambhure v. S. V. lonkar, decided on 18-6-1965 (Bom), where, according to Mr. Baldota, Similar question arose and the Court did not accept the contention that the petitioner there was guilty of undue delay in presenting his petition.
12. Now, the facts of that case show that the impugned order of termination was passed on the 30th of September 1963, but the petition was admitted on the 25th November 1964. The petition was lodged in the office of the Prothonotary and Senior Master on the 28th of December 1963. It would also appear that Mody, J. Who issued the rule in that petition had directed notice to be given an opportunity to the respondents to show cause why it should not be accepted and the observation is made by Kantawala J., that 'the delay in fact was condoned by Mody, J., while admitting this petition and it will not be open to the respondents to take up the same plea before me'.
13. It is not clear from the judgment of Kantawala J., as to what was the date on which the Court ordered notice for admission to issue, and there is this further difference that although Mody. J., had admitted the petition without any reservation as to delay the ground of delay was being taken again at the hearing of the petition before Kantawala, J. and this was held not open to the respondents.
14. Kanatwala, J., has also made the following observation, which require to be set out:-
'Mere delay in getting other petition accepted or admitted after it is lodged cannot be regarded as fatal on detrimental to the rights of the petitioner to move this Court under Article 326 of the Constitution. Further in view of the fact that this petition can be disposed of on the statements made in the affidavits, I am not prepared to dismisses it merely on the ground of delay'
15. It is obvious that when his Lordship was referring to the question of delay in getting the petition accepted or admitted, after it is lodged, the reference is to the lapse of time over which the petitioner may have no control. It will be obviously harsh in such circumstances to visit the consequences of such a delay on the petitioner, In the instant case the petitioner appears to have calmly abandoned or at any rate out into could storage his remedy under Article 226 of the Constitution of India. There is no explanation from the petitioner as to what prevented him from getting the petition brought before the Court and as an appropriate rule or order issued.
16. In these circumstances, it cannot be said that the petitioner is not guilty of gross delay in pursuing the remedy that was open to him in the first place.
17. Now this is not to suggest that in appropriate cases the Court cannot on good and sufficient cause being shown condone the delay (if any) after the petition has been lodged. Serious illness or other incapacity may prevent a petitioner from moving causes which may prevent a petitioner from moving the Court after the petition has been lodged and in each case the Court would have to consider the facts which caused the delay.
18. The following observations of the Supreme Court in M/s. Tilokchand Motichand v. H.B. Munshi, : 2SCR824 , lend support to the view which I am taking that when the question of delay is being considered by the Court, then it would not necessarily be the delay before the filing or lodging of the writ petition but in the petitioner moving the petition but in the petitioner moving the Court in furtherance of his right in seek the remedy. This is what the Supreme Court said:
'If then there is no period prescribed what is the standard for this Court to follow? I should say that almost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay.............. ............... Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction'.
19. In my view, it does not matter whether the petition has been formally lodged in the Court or not. If the petitioner seeks a remedy under the extraordinary jurisdiction of this High Court then he must some how move the Court and obtain such order as he may be entitled to do and not allow time to elapse whereby the rights of the respondents may be affected.
20. In fairness to the petitioner, I may state that is possible to argue that the impugned order dated the 4th of August 1971 is assailable on the ground that the amount of pay or allowances for a period of one month in lieu of the period of notice was not tendered to the petitioner and that on this ground the order of termination of the petitioner's services may be shown to be bad. Mr. Dalal, who appears for the respondents to show cause against the notice for admission, however, states, on instructions from his clients, that as a matter of fact the amount of pay and allowances was tendered to the petitioner on the same day, but he declined to accept the same, All this Court would have had to consider.
21. But it is also settled law that the High court while exercising its writ jurisdiction is not bound, even though there may be some illegality or irregularity in the impugned order, to give relief to the petitioner if his conduct is such that by his negligence he had deprived himself of the remedy which he might otherwise have availed of. It is to be noticed that if the petition were now to be admitted and the petitioner were to succeed in obtaining re-instatement then the respondent would be called upon to pay the burden of delay by having to pay the petitioner back wages for 21 additional months.
22. In the case before me the petitioner has not only shown no diligence but at the time of moving the court for acceptance of the petition has not chosen to explain by affidavit or otherwise what prevented him from doing so, He has remained silent and must bear the consequences of his silence and inaction.
23. The petition is rejected. There will be no order as to costs.
24. Petition rejected.