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SCA/2124/2005 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2124 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE G.B.SHAH
Sd/-
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
Yes
2
To
be referred to the Reporter or not ? Yes
3
Whether
their Lordships wish to see the fair copy of the judgment ?
No
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? No
5
Whether
it is to be circulated to the civil judge ? No
=========================================
DADAMBEN
WD/O M.D.NEPALI
Versus
UNION
OF INDIA AND OTHERS
=========================================Appearance
:
MR CHINMAY
GANDHI for MR MB GANDHI for the Petitioner
MR ANSHIN H DESAI for
the Respondents
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE G.B.SHAH
Date
: 28/04/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. We
have heard learned counsel Mr.Chinmay Gandhi for the petitioner and
Mr. Anshin H. Desai for the respondents.
2. Manbahadur
Dhaniram Nepali was dismissed from service along with 28 persons on
18.12.1985. 28 persons filed a writ petition, being Special
Civil Application No.7516 of 1992, which was allowed on
2.8.2004. 28 petitioners who filed the writ petition were granted
relief and their dismissal order was set aside and they were directed
to be reinstated on the posts which they were holding prior to their
dismissal. It was further directed that they shall be deemed to be
in continuous service throughout and entitled to all consequential
benefits, including salary and allowances revised from time to time
and promotions and occupation of quarters in which they are residing
shall not be treated to be unauthorised. The judgment of the Division
Bench of this Court was challenged by the respondents by filing
Special Leave to Appeal (Civil) No.24650 of 2004, which was summarily
dismissed on 10.12.2004. All the 28 employees (petitioners in Special
Civil Application No.7516 of 1992) were taken back in service
and accordingly, the judgment of the Division Bench of this Court was
complied.
3. The
petitioner was also dismissed on the same ground as of 28 employees.
Said Manbahadur Dhaniram Nepali filed the present writ petition
before this Court, for quashing of the dismissal order at
Annexure-‘C’, dated 30.11.1995. Order at Annexure-‘C’ dated
30.11.1995 is not the order by which the petitioner was dismissed
from service but it is an order by which one Naik R.R. Pawaskar was
dismissed from service. Whether the date of dismissal is correct or
not, we are not concerned with that. This petition is filed initially
by late Manbahadur Dhaniram Nepali. His dismissal order dated
18.12.1985 has been filed by the respondents at Annexure-‘V’ to the
affidavit-in-reply.
4. In
the writ petition, in para 16, it has been stated that when the writ
petition was filed by 28 petitioners, petitioner-Manbahadur Dhaniram
Nepali also joined them. But by mistake, his name was not mentioned
as ‘petitioner’ and the said writ petition was only on behalf of 28
petitioners and they were granted relief by the Division Bench, which
was affirmed by the Hon’ble Apex Court.
5. The
case of the petitioner is that since the relief has been granted to
28 similarly employees, the petitioner, being similarly situated, is
also entitled for the same. The petitioner was dismissed from service
in 1985. Other petitioners of Special
Civil Application No.7516 of 1992, have been granted relief
in the year 2004. This petition has been filed by the petitioner in
the year 2005 after the SLP was dismissed by the Hon’ble Apex Court.
The learned counsel for the petitioner has urged that the writ
petition filed by the petitioner would be maintainable and the
petitioner is also entitled for the same relief which has been
granted to other similarly situated petitioners of Special
Civil Application No.7516 of 1992.
6. The
learned counsel for the petitioner has urged that it is not necessary
for every person to approach the Court for relief and it is the duty
of the authority to extend the benefit of a concluded decision in all
similar cases without driving every affected person to court to seek
relief. The argument of the learned counsel for the petitioner has
been considered by the Hon’ble Apex Court in the case of Bharat
Sanchar Nigam Limited Vs. Ghanshyam Dass and others reported
in 2011(2) SCALE 479,
wherein it has been in para 13, as under:-
“13. The
principle laid down in K.I.
Shephard
(supra) that it is not necessary for every person to approach the
court for relief and it is the duty of the authority to extend the
benefit of a concluded decision in all similar cases without driving
every affected person to court to seek relief would apply only in
the following circumstances:
a) where
the order is made in a petition filed in a representative capacity on
behalf of all similarly situated employees;
b) where
the relief granted by the court is a declaratory relief which is
intended to apply to all employees in a particular category,
irrespective of whether they are parties to the litigation or not;
c) where
an order or rule of general application to employees is quashed
without any condition or reservation that the relief is restricted to
the petitioners before the court; and
d) where
the court expressly directs that the relief granted should be
extended to those who have not approached the court.”
From the
aforesaid decision, it is clear that the argument of the learned
counsel for the petitioner could only be accepted if writ petition
was filed in a representative capacity or where the relief which was
granted by the Court was a declaratory relief, which was extended to
all other employees of a particular category or the impugned order
was of general application to all employees or the Court had
expressly directed to grant relief even to those persons who have
not approached the Court. None of the aforesaid conditions are
satisfied in the instant case. Writ petition of 28 petitioners was
decided by considering their cases. Neither general direction was
issued nor the writ petition was filed in a representative capacity
nor the Court intended to apply this in general or to all similarly
situated employees in a particular category. Therefore, the argument
of the learned counsel for the petitioner deserves to be rejected.
7. The
learned counsel for the respondent has placed reliance on a decision
of the Hon’ble Apex Court in the case of Shiba
Shankar Mohapatra and others Vs. State of Orissa and others reported
in (2010) 12 SCC 471, wherein,
in para 29, it has been held as under:-
“29. It
is settled law that fence-sitters cannot be allowed to raise the
dispute or challenge the validity of the order after its conclusion.
No party can claim the relief as a matter of right as one of the
grounds for refusing relief is that the person approaching the court
is guilty of delay and the laches. The court exercising public law
jurisdiction does not encourage agitation of state claims where the
right of third parties crystallises in the interregnum (Vide Aflatoon
v. Lt. Governor of Delhi; State of Mysore v. V.K. Kangan; Municipal
Council, Ahmednagar v. Shah Hyder Beig; Inder Jit Gupta v. Union of
India; Shiv Dass v. Union of India; A.P.SRTC v. N. Satyanarayana and
City and Industrial Development Corpn. v. Dosu Aardeshir
Bhiwandiwala).”
The
learned counsel for the respondent also placed reliance on another
judgment of the Hon’ble Apex Court in the case of State
of Orissa and Another Vs. Mamata Mohanty
reported in (2011) 3 SCC 436,
wherein in para 54, it has been as under:-
“54. This
Court has consistently rejected the contention that a petition should
be considered ignoring the delay and laches in case the petitioner
approaches the Court after coming to know of the relief granted by
the Court in a similar case as the same cannot furnish a proper
explanation for delay and laches. A litigant cannot wake up from deep
slumber and claim impetus from the judgment in cases where some
diligent person had approached the Court within a reasonable time.
(See Rup Diamonds v. Union of India, State of Karnataka v.
S.M. Kotrayya and Jagdish
Lal v. State of Haryana.).”
8. The
order of dismissal was passed in the year 1985. The other petitioners
approached this Court in the year 1992 after exhausting their
alternative remedy. The petitioner could have also approached this
Court in 1992, but he filed the petition in 2005 after seeing that
the other petitioners were successful and the decision in their
favour was affirmed by the Hon’ble Apex Court. In our opinion, the
writ petition filed by the petitioner deserves to be dismissed on the
ground of delay and laches.
9. From
the aforesaid facts, it is clear that the petitioner was guilty of
delay and laches and therefore, he cannot be granted any relief as
granted to 28 petitioners of Special
Civil Application
No.7516 of 1992, as he was a fence-sitter. The petition is dismissed.
Rule is discharged. Interim relief, if any, stands vacated. No
costs.
(V.M.
SAHAI, J.)
(G.B.
SHAH, J.)
omkar
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