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ishaq Mohammed Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 952/1982
Judge
Reported in1982WLN(UC)543
Appellantishaq Mohammed
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredSurajmal and Ors. v. The State of Rajasthan and Ors.
Excerpt:
.....& appeal) rules, 1958--rule 25--government servant dismissed from service--appeal rejected as time barred--petitioner not vigilant--held, relief cannot be granted in exercise of extraordinary jurisdiction.;the petitioner filed the appeal after it became time barred, therefore he is not entitled to any relief in the extra-ordinary jurisdiction, as he has not remained vigliant about his rights and allowed the same to lapse by passage of time.;writ dismissed. - - 10. mr balia then argued that proviso to rule 25 is akin to section 5 of the limitation act, & the law is well settled that in order to take advantage under section 5, each day's delay after the date of expiry of the limitation should be explained. we are, therefore, clear in our minds that save in exceptional cases if a..........28.5.79, and this appeal has been rejected by order dated 2.8.80 on the ground that the appeal was time barred. this appeal was dismissed on 7.5.80.7. the petitioner has challenged both the orders of dismissal and the appellate order on a number of grounds. however, it is not necessary to mention all of them, because a preliminary objection has been raised by the respondents that the appeal was time barred arid, therefore, the writ should not be entertained against the order dismissing the appeal as time barred.8. mr. mridul learned counsel for the petitioner submitted that it was correct that the appeal was time barred, but there was sufficient cause for not tiling the appeal within time. according to him, the order of dismissal was misplaced, and, therefore, he took some time. mr......
Judgment:

Lodha, J.

1. Ishaq Mohammed Bhati a civil servant has filed this writ petition with the following prayer:

The order of punishment dated 28.5.1979 may be declared to be invalid and be quashed with all consequentail benefits to the petitioner such as salary.

In the alternative and without prejudice to aforesaid, if it be considered that such an order cannot be made without the appeal and/or the review petition being decided by the Government, then the Hon'ble Court may be pleased to set aside the order in appeal and direct the State Government to proceed to consider the appeal and/or review petition of the petitioner within time to-be fixed by the Hon'ble Court and then consider the validity of the order on the order being produced and given the petitioner appropriate relief.

Further by an appropriate writ order or direction, even if the aforesaid reliefs are not considered due to the petitioner, then the order of punishment so far it directs that the petitioner shall not be paid the salary for the period of suspension may be declared to be illegal and maybe quashed and the respondents be asked to pay to the petitioner the salary for the period of suspension after deducting the subsistence allowance which has been paid to him. Any other appropriate writ order or direction which may be deemed just and proper in the circumstances of the case may be issued in favour of the petitioner.

2. On 22.11.75. the petitioner was served with a charge sheet and statement of allegations An enquiry was conducted against him. The petitioner did participate in the enquiry. Ultimately, a show cause notice was given to him on 25 4.78 mentioning that on the basis of enquiry report it is proposed that he should be dismissed from service and. therefore, he may show cause why it should not be done. The report of the Enquiry Officer was sent with it.

3. The petitioner gave a reply and supplemented it by a further reply.

4. Thereafter, some queries were made from the Enquiry Officer. The petitioner was asked to present himself before the Registrar on 2.12.78 for personal hearing, because the petitioner had contended before the Registrar that he handed over the charge to Shri Todaram Secretary on 14.6.70, and the Registrar had written a letter to the Joint Registrar to verify the correctness of this statement. Two statements were recorded on 18.12.78 of Fateh Singh and Todaram in the presence of the petitioner and the petitioner cross-examined Todaram.

5. The petitioner's case is that Jhumar, Madan, Fateh, Raghunath, Pratapsingh and Babusingh were examined exparte, but the case of the respondents is that the statements of these witnesses were dropped from the proceedings on 26.8.77.

6. Thereafter, the petitioner was dismissed from service as per the show cause notice already served upon him. The petitioner filed an appeal against the order of punishment dated 28.5.79, and this appeal has been rejected by order dated 2.8.80 on the ground that the appeal was time barred. This appeal was dismissed on 7.5.80.

7. The petitioner has challenged both the orders of dismissal and the appellate order on a number of grounds. However, it is not necessary to mention all of them, because a preliminary objection Has been raised by the respondents that the appeal was time barred arid, therefore, the writ should not be entertained against the order dismissing the appeal as time barred.

8. Mr. Mridul learned Counsel for the petitioner submitted that it was correct that the appeal was time barred, but there was sufficient cause for not tiling the appeal within time. According to him, the order of dismissal was misplaced, and, therefore, he took some time. Mr. Mridul then submitted that in any case since it was a departmental appeal, there should be no such insistence for filing the appeal within time. He claimed benefit of proviso to Rule 25 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as the Rules) on the ground that there was sufficient cause. According to Mr. Mridul, he applied for certain copies which were supplied to him on 23.8.79, and, therefore, no appeal could have been filed earlier.

9. Mr. Balia have vehemently contested the writ petition and he submits that the writ petition be dismissed on the preliminary objection that the appeal was time barred. According to him, on the pretext of getting some copies of other documents than the impugned judgment or order, no time can be extended. In any case, it was argued by Mr. Balia that all the copies required by the petitioner were with him on 23.8.79 before 9 days of the expiry of limitation. Rule 25 prescribes three months period from the date of receipt of the copy of the order as limitation for riling an appeal. Admittedly, he received the copy of the order of 1.6.79 and received all other copies by 28.8.79, as per para 14 to 18 of the writ petition. The limitation, therefore, expired on 1.9.79 in any case, and there is no explanation in the writ petition, or in appeal or any arguments as to why the petitioner could not still file appeal in time when he had all the documents with him at least 9 days before the expiry of the limitation, and the decision to file the appeal was already taken by him on receipt of the copy of the order of dismissal. In Annexure-10 dated 9.6.79, he has mentioned that he wants to file appeal against the Government order.

10. Mr Balia then argued that proviso to Rule 25 is akin to Section 5 of the Limitation Act, & the law is well settled that in order to take advantage under section 5, each day's delay after the date of expiry of the limitation should be explained. Reliance was placed by Mr. Balia on the decision of Keshav Prasad v. Stale of Rajasthan (1) AIR 1977 Raj 24. It was pointed out that in the present case 17 days delay is established. The order was served on 1.6.79. Placing reliance upon the judgment of Chan Elliam v. Neo Thein Theong, (2) AIR 1925 Rang 361 (362) Mr. Balia argued that obtaining of other documents or certified copies cannot be a ground for condonation of delay.

11. On the above premises, Mr. Balia submitted that the facts about non - existence of sufficient cause are so glaring and patent in the present case and established on the face of the record that no detailed arguments are required to be made on the merits of the case.

12. I have carefully consideted the submissions of the learned Counsel for the parties, and I am of the opinion that the preliminary objection of Mr. Balia must succeed. The appeal filed by the petitioner was time barred, and no sufficient cause hase been shown to condone the dely under the proviso to Rule 25. As discussed above, it was not necessary to obtain certified copies of some documents other than the impugned order and delay cannot be condoned on such a remote ground. Moverover, even after obtaining documents, 9 days were left in limitation, and yet the appeal was filed after it became time barred and as such there is a delay of 18 days.

13. Mr. Mridul then submitted that even though the appeal may be time barred, this Court should interfere, because principles of natural justice have been violated. Firstly, when the Rules have been framed which are exhaustive for providing the procedure regarding opportunity of hearing, there cannot be any independent principle of natural justice over and above that.

14. It has been held in A.N. Kripak's case (3) by the Supreme Court that the rule of natural justice can operate only in arrears not covered by law and they cannot supplement the law.

15. This court in Surajmal and Ors. v. The State of Rajasthan and Ors. (4) observed as under.

We are, therefore, clear in our minds that save in exceptional cases if a petitioner comes to a court of law after the period of limitation prescribed for a particular relief the court would ordinarily decline to grant it on the ground of delay and it does not make any difference whether the relief is claimed in regard to the violation of fundamental rights or otherwise.

16. Mr. Balia has also submitted in his reply and argued that the petitioner is guilty of concealment of material facts, but I am not inclined to enter into that controversy. Since, I am convinced that the petitioner filed the appeal after it became time barred, therefore he is not entitled to any relief in the extra ordinary jurisdiction, as he has not remained vigilant about his rights and allowed the same to lapse by passage of time.

17. The result is that this writ petition fails and is here by dismissed.


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