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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.  8390-8391 OF 2015 (@ S.L.P.(C) NOS.11203-11204 OF 2014)

State of Jammu & Kashmir  ... Appellant

                               Versus

R.K. Zalpuri and others  ... Respondent

J U D G M E N T

Dipak Misra, J.

The first respondent was served with a Memorandum  

of  Charges  on  16th September,  1996,  which  was  

unequivocally refuted by him.  The Disciplinary Authority  

considering the denial of charges, on 12th November, 1996,  

appointed  an  Inquiry  Officer,  who  after  conducting  the  

enquiry,  submitted a  report  to  the  Disciplinary  Authority  

which  contained  a  finding  that  the  employee  had  

misappropriated a sum of Rs.2,68,317.00.  After the report

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was  submitted,  the  Disciplinary  Authority  issued  a  show  

cause notice on 4th June, 1999, whereby it had proposed to  

terminate the services of the employee.   

2.  The  first  respondent  submitted  the  reply  and  the  

Disciplinary Authority  considering the explanation passed  

an order of dismissal on 6th September, 1999 and he stood  

dismissed from that day.   The order passed by the State  

Government dismissing the employee read as follows:-

“Whereas  the  commissioner  of  Inquiries  has  submitted his report to the Government and has  found  him  guilty  of  having  embezzled  Government money to the tune of Rs.2,68,317.00  (Rupees  two  lacs,  sixty  eight  thousand,  three  hundred  and  seventeen  only)  besides  being  responsible  for  financial  mis-conduct  and  complete lack of devotion to duties.

Whereas,  after  considering  the  report  of  the  inquiry  officer  the  involvement  of  Shri  R.K.  Zalpur, Senior Assistant, has been established in  the  embezzlement  of  Government  money  as  indicated  above  in  the  office  of  Resident  Commissioner, J&K, New Delhi.

Whereas after accepting the report of the inquiry  officer and after establishing his involvement, the  Government  has  decided  to  take  action against  Shri R.K. Zalpuri, Sr. Assistant in terms of clause  (viii) of rule 30 of the J&K (Classification Control  and Appeal) Rules, 1956 which provides dismissal  from service.

Whereas,  Shri  R.K.  Zalpuri  was informed about  

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the  decision  of  the  Government  vide  communication  No.  GAD  (Admn.)  TA  3391-IV  dated  04.06.1999  and  was  called  upon  under  rules  to  show  cause  as  to  why  the  proposed  action is not taken against him.

Whereas Shri R.K. Zalpuri has furnished his reply  to the notice served upon him, which has been  considered by the Government and no merit was  found in he same;

Now,  therefore,  Shri  R.K.  Zalpur,  Senior  Assistant,  in  the  office  of  the  Resident  Commissioner,  J&K,  New  Delhi  is  hereby  dismissed  from  Government  service  with  immediate effect in terms of clause VIII of Rule 30  of J&K Civil Service (CCA) Rules, 1956.”

3. After the said order was passed, the first respondent  

did not prefer any departmental appeal nor did he approach  

any  superior  authority  for  redressal  of  his  grievance.  

However,  on 18th February,  2006,  he filed a writ  petition  

(S.W.P. No.352 of 2006) before the High Court challenging  

his dismissal from service.  Various assertions were made in  

the writ petition with regard to the defects in conducting of  

the inquiry including the one that there had been violation  

of  Rule  34  of  the  Jammu  and  Kashmir  Civil  Services  

(Classification, Control & Appeal) Rules, 1956, for he had  

not been afforded an opportunity of hearing in the manner  

provided in the said Rules.  In the writ petition nothing was  

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stated what he had done from 1999 to 2006.

4. The State Government filed a counter affidavit wherein  

it had raised a preliminary objection relating to delay and  

laches.  The stand taken by the State Government in the  

counter  affidavit  as  regards  the  delay  and  laches  is  as  

follows:-

“That,  the  writ  petition  instituted  by  the  petitioner  is  liable  to  be  dismissed  at  its  threshold,  inasmuch  as  the  same  is  suffering  from  inordinate  and  unexplainable  delay  and  latches.  By virtue of the writ petition instituted  in the year 2006, the petitioner has come to the  court  to  challenge  an  order  passed  by  the  answering respondents way back on 06.09.1999.  It is submitted that pursuant to the issuance of  order  impugned,  the  petitioner  chose  to  sleep  over the matter and acquiesced whatever rights  assumed to be available to him.”

5. After putting forth the submission with regard to the  

delay and laches, the State Government defended its action  

by  asseverating  many  an  aspect,  which  need  not  be  

adverted to.

6. The learned Single Judge  vide order dated 14th May,  

2010,  opined  that  the  show  cause  notice  issued  to  the  

employee  was  not  accompanied  with  the  copies  of  the  

proceedings as envisaged under Rule 34 of the Jammu and  

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Kashmir  Civil  Services  (Classification,  Control  &  Appeal)  

Rules,  1956  and  that  did  tantamount  to  denial  of  

reasonable  opportunity  to  the  delinquent  official,  as  has  

been  held  by  the  Constitution  Bench  in  E.C.I.L.  vs.  B.  

Karunakar1.  On that singular ground, he allowed the writ  

petition and quashed the order of dismissal.

7. Being  grieved  by  the  aforesaid  decision,  the  State  

Government preferred Letters Patent Appeal No.102 of 2012.  

In the grounds of the Letters Patent Appeal, the State had  

clearly asserted:-

“That  the  learned  Single  Judge,  with  great  respects,  has  not  appreciated  the  specific  and  important averment made by the appellants that  the  respondent  had  slept  over  the  matter  for  quite seven years and has knocked the door of  the Hon’ble Court after a gap of seven years, thus  there  was  clear  unexplained  huge  delay  and  laches in filing the writ  petition,  the same was  liable  to  be  dismissed,  however,  the  learned  Single  Judge  without  returning  any  finding  on  this  vital  issue  has  allowed  the  writ  petition,  therefore,  the same is liable to be set aside on  this ground along.”

8. The  Division  Bench  that  heard  the  Letters  Patent  

Appeal  recorded  a  singular  submission  on  behalf  of  the  

learned counsel for the State which was to the effect that it  

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 AIR 1994 SC 1074

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had been left  without any remedy to proceed against  the  

delinquent  government  servant  and,  therefore,  the  order  

passed by the Learned Single Judge needed modification.  

The Division Bench dealing with the said submission opined  

thus:-

“Learned Single Judge has quashed Respondent’s  dismissal from Government service on the ground  that copy of the proceedings prepared under Rule  33  was  not  supplied  to  the  Respondent  before  passing final orders on the provisional conclusion  reached at on the basis of  the inquiry to show  cause  as  to  why  the  proposed  penalty  be  not  imposed on him.

Although the Appellants’ dismissal was set aside  by  the  Court  finding  non-compliance  of  the  provisions  of  the  Rule  34  of  the  Jammu  and  Kashmir Civil Service (Classification, Control and  Appeal) Rules, 1956, yet it cannot be said that the  Appellants have been left without any remedy to  proceed  against  the  delinquent  employee  on  complying with the requirement of Rule 34.

The Learned State counsel’s contention that the  Appellants have been left without any remedy to  proceed  against  the  respondent  may  not,  therefore, be a correct proposition of law.  

However, to set the records straight and allay, the  State Government’s apprehension that they were  without any remedy, we dispose of this appeal by  providing  that  quashing  of  Respondent’s  dismissal will not operate as impediment for the  Appellants to proceed against the Respondent for  his  misconduct  after  complying  with  the  requirement  of  Rule  34  of  the  Jammu  and  Kashmir  Civil  Services  (Classification,  Control  

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and Appeal) Rules, 1956.”

9. It  is  apt  to  note  here that  an application for  review  

being Review (LPA) No.03 of 2012 was filed wherein a stand  

was  taken pertaining  to  delay  which we think should  be  

reproduced.  It reads as under:-

“The  appellants  filed  detailed  reply  to  the  maintainability of  the said writ petition.  In the  objection,  it  was  specifically  pleaded  before  the  writ court that the Respondent had slept over the  matter  and  the  writ  petition  is  suffering  from  inordinate  and  unexplained  delay  and  laches,  therefore, the writ petition filed in the year 2006  against  the  order  passed  way  back  in  1999  is  liable to be dismissed.”

10. The  Division  Bench  considered  the  application  for  

review and ultimately  dismissed the same on the ground  

that there was no palpable error warranting review of the  

order.   The  principal  order  and  the  order  passed  in  the  

review  are  the  subject  matters  of  assail  in  the  present  

appeals.

11. We have heard Mr. Sunil Fernandes, learned counsel  

for  the  appellant-State  and  Mr.  Gagan  Gupta,  learned  

counsel for the first respondent.

12. On a perusal of the factual exposition, it is quite vivid  

that  the  first  respondent  was  dismissed  from  service  on  

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6th September, 1999, and he preferred the writ petition on  

18th February, 2006, after a lapse of almost five and a half  

years.  The plea relating to delay was specifically taken in  

the  counter  affidavit  as  a  preliminary  objection,  but  the  

learned Single Judge chose not to address the same.  The  

appellate-Bench has noted the submission and modified the  

order and an application for review was filed with the stand  

that the plea pertaining to delay and laches had not been  

considered, but the review application, as we find from the  

record, was dismissed on the ground that the review could  

not be treated like an appeal in disguise.

13. Learned counsel for the appellant-State would contend  

that  when  a  categorical  stand  was  taken  in  the  counter  

affidavit  and a  specific  stance  had been put  forth in  the  

intra-Court appeal as is manifest from the record, the High  

Court should have taken into consideration the same and  

not recorded a finding on a ground which was not taken in  

the grounds of appeal.

14. Learned  counsel  for  the  respondent-employee,  per  

contra,  would  contend  that  the  delay  and  laches  cannot  

alone  defeat  the  cause  of  justice  and in  any  case,  when  

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substantial  justice  has  been  done  this  Court  should  not  

interfere in exercise of jurisdiction under Article 136 of the  

Constitution of India.

15. We have noted that the High Court has rejected the  

application for review on the ground that it  cannot sit  in  

appeal and the parameters of review are not attracted.  In  

this  context,  we  may  refer  to  the  Constitution  Bench  

judgment  in  Shivdeo  Singh  and  Others  vs.  State  of   

Punjab  and Others2,  wherein  it  has  been  observed  that  

nothing in Article 226 of the Constitution precludes a High  

Court from exercising the power of review which inheres in  

every court of plenary jurisdiction to prevent miscarriage of  

justice or to correct grave palpable errors committed by it.

16. In  this  regard,  reference  to  Aribam  Tuleshwar  

Sharma vs. Aribam Pishak Sharma and Others3, would  

also be apt.  In the said case, it has been held thus:-

“It is true as observed by this Court in  Shivdeo  Singh  v.  State  of  Punjab,  there  is  nothing  in  Article 226 of the Constitution to preclude a High  Court from exercising the power of review which  inheres in every court of plenary jurisdiction to  prevent miscarriage of justice or to correct grave  and palpable errors committed by it.  But, there  are definitive limits to the exercise of the power of  

2  AIR 1963 SC 1909, 3  (1979) 4 SCC 389,

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review.  The power of review may be exercised to  the  discovery  of  new  and  important  matter  or  evidence which, after the exercise of due diligence  was  not  within  the  knowledge  of  the  person  seeking the review or could not be produced by  him at the time when the order was made; it may  be  exercised  where  some  mistake  or  error  apparent on the face of  the record is  found;  it  may also be exercised on any analogous ground.  But, it may not be exercised on the ground that  the  decision  was  erroneous  on  merits.   That  would be the province of  a court of  appeal.   A  power  of  review  is  not  to  be  confused  with  appellate powers which may enable an appellate  Court to correct all manner or errors committed  by the subordinate Court.”

17. In  M/s.  Thungabhadra  Industries  Ltd.  vs.  The  

Government  of  Andhra  Pradesh  represented  by  the  

Deputy Commissioner of Commercial Taxes4,  this Court  

while  discussing  about  the  concept  of  review,  has  ruled  

that:-

“a review is by no means an appeal in disguise  whereby  an  erroneous  decision  is  reheard  and  corrected, but lies only for patent error.  We do  not  consider  that  this  furnishes  a  suitable  occasion  for  dealing  with  this  difference  exhaustively or in any great detail, but it would  suffice  for  us  to  say  that  where  without  any  elaborate argument one could point to the error  and say here is a substantial point of law which  stares  one  in  the  face,  and  there  could  reasonably be no two opinions, entertained about  it, a clear case of error apparent on the face of  the record would be made out”.

4  AIR 1964 SC 1372

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18. Almost  fifty-five  years  back,  in  Satyanarayan  

Laxminarayan  Hegde  vs.  Mallikarjun  Bhavanappa  

Tirumale5,  it was laid down that:-

“an error which has to be established by a long- drawn  process  of  reasoning  on  points  where  there  may  conceivably  be  two  opinions  can  hardly  be said to  be an error  apparent on the  face of the record.  Where an alleged error is far  from self-evident and if it can be established, it  has to be established by lengthy and complicated  arguments and such an error cannot be cured by  a  writ  of  certiorari  according  to  the  rule  governing  the  powers  of  the  superior  court  to  issue such a writ”.  

19. We have referred to the aforesaid authorities as we are  

of the convinced opinion that in the present case, there was  

a  manifest  error  by the High Court,  for  it  had really  not  

taken note of the stand and stance that was eloquently put  

by  the  State  as  regards  the  delay  and  laches.   The  

averments  in  the  writ  petition were  absolutely  silent  and  

nothing had been spelt  out  why the  delay  had occurred.  

The  Single  Judge,  as  stated  earlier  had  chosen  not  to  

address the said issue. The  Division  Bench  in  appeal  

addressed  the  submission,  totally  being  oblivious  of  the  

ground pertaining to delay and laches clearly stated in the  

memorandum of appeal, and modified the order passed by  5  AIR 1960 SC 137

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the Learned Single Judge as if that was the sole submission.  

It needs no special emphasis to state that in the obtaining  

factual  matrix,  the  application  for  review did  not  require  

delving deep into the factual matrix to find out the error.  It  

was  not  an  exercise  of  an  appellate  jurisdiction  as  is  

understood in law.  It can be stated with certitude that it  

was a palpable error, for the principal stand of the State was  

not addressed to and definitely it had immense significance  

and  hence,  the  same  deserved  to  be  addressed  to.  

Therefore, we are compelled to think that the order required  

review  for  the  purpose  of  consideration  of  the  impact  of  

delay and laches in preferring the writ petition.  Be that as it  

may,  we  shall  proceed  to  deal  with  the  repercussions  of  

delay and laches, as we are of the considered opinion that  

the same deserves to be addressed to in the present case.

20. Having stated thus, it is useful to refer to a passage  

from  City and Industrial Development Corporation vs.  

Dosu Aardeshir Bhiwandiwala and Others6, wherein this  

Court while dwelling upon jurisdiction under Article 226 of  

the Constitution, has expressed thus:-

“The Court while exercising its jurisdiction under  6  (2009) 1 SCC 168

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Article 226 is duty-bound to consider whether:

(a) adjudication  of  writ  petition  involves  any  complex and disputed questions of facts and  whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective  remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of  unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant  of  relief  is  against  public  policy  or  barred by any valid law; and host of other  factors.”

 21. In this regard reference to a passage from Karnataka  

Power Corpn. Ltd Through its Chairman & Managing  

Director & Anr Vs. K. Thangappan and Anr7 would be  

apposite:-

“Delay or laches is one of the factors which is to  be borne in mind by the High Court when they  exercise their discretionary powers under Article  226 of the Constitution. In an appropriate case  the High Court may refuse to invoke its extraordi- nary powers if there is such negligence or omis- sion on the  part  of  the  applicant  to  assert  his  right as taken in conjunction with the lapse of  time and other circumstances, causes prejudice  to the opposite party”.

 After  so  stating  the  Court  after  referring  to  the  

7 (2006) 4 SCC 322

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authority in  State of M.P. v. Nandalal Jaiswal8 restated  

the principle articulated in earlier pronouncements, which  

is to the following effect:-

“the High Court in exercise of its discretion does  not ordinarily assist the tardy and the indolent or  the acquiescent and the lethargic. If there is inor- dinate  delay  on  the  part  of  the  petitioner  and  such  delay  is  not  satisfactorily  explained,  the  High Court  may decline to intervene and grant  relief  in  exercise  of  its  writ  jurisdiction.  It  was  stated that this rule is premised on a number of  factors. The High Court does not ordinarily per- mit a belated resort to the extraordinary remedy  because it is likely to cause confusion and public  inconvenience and bring, in its train new injus- tices, and if writ jurisdiction is exercised after un- reasonable delay, it may have the effect of inflict- ing not only hardship and inconvenience but also  injustice on third parties. It was pointed out that  when  writ  jurisdiction  is  invoked,  unexplained  delay  coupled  with  the  creation  of  third-party  rights  in  the  meantime  is  an  important  factor  which also weighs with the High Court in decid- ing whether or not to exercise such jurisdiction”.

22. In State of Maharashtra V Digambar9 a three-judge  

bench laid down that:-

“19. Power of the High Court to be exercised un- der Article 226 of the Constitution, if  is discre- tionary, its exercise must be judicious and rea- sonable, admits of no controversy. It is for that  reason,  a  person’s  entitlement  for  relief  from a  High Court under Article 226 of the Constitution,  be it against the State or anybody else, even if is  founded on the allegation of infringement of his  

8 (1986) 4 SCC 566 9 (1995) 4 SCC 683

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legal right, has to necessarily depend upon un- blameworthy conduct of the person seeking relief,  and the court refuses to grant the discretionary  relief to such person in exercise of such power,  when he  approaches  it  with  unclean  hands  or  blameworthy conduct.”

23. Recently  in  Chennai  Metropolitan  Water  Supply  

and Sewerage Board & Ors. Vs. T.T. Murali Babu10, it  

has been ruled thus:

“Thus,  the doctrine of  delay and laches should  not be lightly brushed aside. A writ court is re- quired to weigh the explanation offered and the  acceptability of the same. The court should bear  in mind that it is exercising an extraordinary and  equitable jurisdiction. As a constitutional court it  has a duty to protect the rights of the citizens but  simultaneously it is to keep itself alive to the pri- mary  principle  that  when an aggrieved  person,  without  adequate  reason,  approaches  the  court  at his own leisure or pleasure, the court would be  under legal obligation to scrutinise whether the  lis  at  a  belated stage  should  be  entertained or  not. Be it noted, delay comes in the way of equity.  In certain circumstances delay and laches may  not be fatal but in most circumstances inordinate  delay would only  invite  disaster  for  the  litigant  who knocks at the doors of the court. Delay re- flects inactivity and inaction on the part of a liti- gant  —  a  litigant  who  has  forgotten  the  basic  norms,  namely,  “procrastination  is  the  greatest  thief  of  time” and second,  law does  not  permit  one to sleep and rise like a phoenix. Delay does  bring in hazard and causes injury to the lis”.

24. At  this  juncture,  we  are  obliged  to  state  that  the  

question of delay and laches in all kinds of cases would not  10 (2014) 4 SCC 108

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curb  or  curtail  the  power  of  writ  court  to  exercise  the  

discretion.   In  Tukaram  Kana  Joshi  And  Ors.  Vs.   

Maharashtra  Industrial  Development  Corporation  &  

Ors11 it has been ruled that:-

“Delay and laches is adopted as a mode of discre- tion to decline exercise of jurisdiction to grant re- lief. There is another facet. The Court is required  to exercise judicial discretion. The said discretion  is dependent on facts and circumstances of the  cases.  Delay and laches is  one of  the facets to  deny exercise of discretion. It is not an absolute  impediment. There can be mitigating factors, con- tinuity  of  cause  action,  etc.  That  apart,  if  the  whole thing shocks the judicial conscience, then  the Court should exercise the discretion more so,  when no third-party interest is involved. Thus an- alysed, the petition is not hit by the doctrine of  delay and laches as the same is not a constitu- tional limitation, the cause of action is continu- ous and further the situation certainly shocks ju- dicial conscience”.

And again:-

“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 af- ter 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. In other words, where cir- cumstances justifying the conduct exist, the ille- gality which is manifest, cannot be sustained on  the sole ground of laches. When substantial jus- tice  and  technical  considerations  are  pitted  against each other, the cause of substantial jus-

11 (2013) 1 SCC 353

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tice deserves to be preferred, for the other side  cannot claim to have a vested right in the injus- tice being done, because of a non-deliberate de- lay. The court should not harm innocent parties  if their rights have in fact emerged by delay on  the part of the petitioners. (Vide Durga Prashad v.  Chief Controller of Imports and Exports12, Collector  (LA) v.  Katiji13,  Dehri  Rohtas  Light  Railway  Co.   Ltd. v.  District  Board,  Bhojpur14,  Dayal Singh v.  Union of India15 and Shankara Coop. Housing So- ciety Ltd. v. M. Prabhakar16.)”

25. Be  it  stated,  in  the  said  case  the  appellants  were  

deprived  of  the  legitimate  dues  for  decades  and  the  

Maharashtra  Industrial  Development  Corporation  had  

handed over the possession of the property belonging to the  

appellant to the City Industrial Development Corporation of  

Maharashtra without any kind of acquisition and grant of  

compensation.   This  court  granted  relief  reversing  the  

decision of  the High Court  which had dismissed the writ  

petition  on  the  ground  of  delay  and  non-availability  of  

certain documents. Therefore, it is clear that the principle of  

delay and laches would not affect the grant of relief in all  

types of cases.   

26. In the case at hand, the employee was dismissed from  

12  (1969) 1 SCC 185 13  (1987) 2 SCC 107 14  (1992) 2 SCC 598 15  (2003) 2 SCC 593 16  (2011) 5 SCC 607

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service  in  the  year  1999,  but  he  chose  not  to  avail  any  

departmental  remedy.   He  woke  up  from his  slumber  to  

knock at the doors of the High Court after a lapse of five  

years.   The  staleness  of  the  claim remained  stale  and it  

could not have been allowed to rise like a phoenix by the  

writ court.  

27. The  grievance  agitated  by  the  respondent  did  not  

deserve to be addressed on merits, for doctrine of delay and  

laches had already visited his claim like the chill of death  

which does not spare anyone even the one who fosters the  

idea and nurtures the attitude that he can sleep to avoid  

death and eventually  proclaim “Deo gratias”  –  ‘thanks to  

God’.

28. Another aspect needs to be stated. A writ court while  

deciding a writ petition is required to remain alive to the  

nature of the claim and the unexplained delay on the part of  

the writ petitioner.  Stale claims are not to be adjudicated  

unless non-interference would cause grave injustice.  The  

present  case,  need  less  to  emphasise,  did  not  justify  

adjudication.  It deserved to be thrown overboard at the very  

threshold, for the writ petitioner had accepted the order of  

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dismissal for half a decade and cultivated the feeling that he  

could  freeze  time  and  forever  remain  in  the  realm  of  

constant present.  

29. In  view  of  our  aforesaid  analysis  the  appeals  are  

allowed and the judgment and orders passed by the High  

Court are set aside.  There shall be no order as to costs.  

...............................J. [Dipak Misra]

...............................J.       [Prafulla C. Pant]

New Delhi October 08, 2015.

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