{"id":37904,"date":"2005-02-07T00:00:00","date_gmt":"2005-02-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-p-ellappan-on-7-february-2005"},"modified":"2016-03-16T15:14:03","modified_gmt":"2016-03-16T09:44:03","slug":"the-managing-director-vs-p-ellappan-on-7-february-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-p-ellappan-on-7-february-2005","title":{"rendered":"The Managing Director vs P. Ellappan on 7 February, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
The Managing Director vs P. Ellappan on 7 February, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 07\/02\/2005 \n\nCoram: \n\nThe Honourable Mr.MARKANDEY KATJU, Chief Justice      \n\nand \n\nThe Honourable Mr.Justice D.Murugesan  \n\nWrit Appeal No. 475 of 2000\n-----------\n\nThe Managing Director \nTamil Nadu State Transport\nCorporation (Madurai Division IV) Ltd.,\nBye-pass Road,  \nCollectorate Post,\nDindigul.                                        Appellant\n\n-Vs-\n\nP. Ellappan\nKondamma Naickenpatti   \nKovilur (via)\nVedasandur Taluk, \nDindigul.                                        Respondent\n\n        Appeal filed under Clause 15 of the Letters Patent against  the  order\npassed in W.P.No.  17496 of 1999 dated 10.12.1999. \n\n!For Appellant :::  Mr.S.Jayaraman\n\n^For Respondent :::  Mr.R.Malaichamy \n\n:J U D G M E N T \n<\/pre>\n
THE HONOURABLE THE CHIEF JUSTICE         <\/p>\n
        This  writ  appeal has been filed against the impugned judgment of the
\nlearned single Judge dated 10.12.1999.\n<\/p>\n
        2.  We have heard the  learned  counsel  for  the  parties,  and  have
\nperused the records.\n<\/p>\n
        3.   The  writ  petitioner had alleged in paragraph-2 of his affidavit
\nthat he joined the service of the respondent transport corporation ( appellant
\nin this appeal) in the year 1981 as a driver.  As on 25.10.1 99 1 he  had  put
\nmore than  10  years  of  service.    In  paragraph-3  he  has alleged that on
\n25.10.1991, while he was driving a bus bearing  registration  No.    TPC  7221
\ntowards  Thethupatti,  a  lorry,  which  was  coming  behind the bus, tried to
\novertake the bus and in that process,  there  was  an  accident  resulting  in
\nmultiple  injuries  to the writ petitioner and the conductor of the bus and to
\nsome passengers.  The writ petitioner was  admitted  in  the  hospital  as  an
\ninpatient  for  68  days and he was discharged without being completely cured.
\nIt is alleged by the petitioner that the respondent transport corporation  did
\nnot take any steps to help him in medical treatment nor allowance was given to
\nhim.  He  had  to spend his own money.  It is alleged that the trial court has
\nheld that the accident occurred due to the rash and negligent driving  of  the
\nlorry driver.\n<\/p>\n
        4.   The  respondent  transport corporation (appellant in this appeal)
\ngave an alternative employment to the writ petitioner  and  posted  him  as  a
\nCashier at Vedasandur Branch.  It is alleged that the petitioner was compelled
\nto  join as a Driver once again, to which the petitioner pleaded inability, as
\nthe petitioner could not drive the vehicle, which he was driving before.   The
\npetitioner  was  referred to a medical board, which gave a report stating that
\nhe was medically unfit to drive a bus.  It is  alleged  that  the  corporation
\ninstead  of allowing the petitioner to continue to work as a Cashier dismissed
\nhim from service with effect from 17.8.93.  It is alleged  that  subsequently,
\nthe respondent transport corporation appointed the writ petitioner as a Helper
\nafresh.  The writ petitioner made several representations to consider his past
\nservice  for  seniority  and  other  service  benefits  and  to  give  him pay
\nprotection, but to no avail.  He was drawing salary of Rs.520 0\/-  per  month,
\nbut  if  pay  protection  is  given, he would draw not less than Rs.7000\/- per
\nmonth.  It is alleged that similarly placed persons were given  continuity  in
\nservice and pay protection.  The representation of the petitioner was rejected
\nby order dated 31.7.199 9, and hence the writ petition.\n<\/p>\n
        5.   The petitioners writ petition was allowed and the impugned order
\nof the respondent was quashed with a direction to the respondent to treat  the
\npetitioner  as  not  having been terminated and give him pay protection in the
\nemployment in light duty, and pay the difference of  scale  of  pay  and  also
\nrevise the present scale of pay by giving pay protection.\n<\/p>\n
        6.   The  appellant\/ transport corporation has submitted that the writ
\npetitioner was given medical treatment  for  68  days  as  inpatient  and  the
\nappellant gave  him  leave  with  wages for the entire period.  Since the writ
\npetitioner was not completely fit for the post of driver after  the  accident,
\nthe  transport  corporation  referred  him  to a medical board, which gave the
\nreport dated 19.7.93 stating that the writ petitioner was not fit for the post
\nof driver for heavy vehicles.  The transport corporation issued a  show  cause
\nnotice to the writ petitioner referring to the report of the medical board and
\ndirected  the  writ  petitioner  to  show  cause  as  to  why he should not be
\ndischarged from service on medical grounds.  The writ petitioner submitted his
\nreply on 11 .8.1993 requesting the transport corporation to give him alternate
\nemployment with continuity of service.  The transport  corporation  discharged
\nhim from service on medical grounds by order dated 17.8.93 , but the transport
\ncorporation offered him alternative employment as per G.O.Ms.No.746, Transport
\nDepartment dated  2.7.1981.    The said G.O states that all the workers in the
\nState Transport Corporation, who are declared medically unfit for  continuance
\nin  service  in  the same post on medical grounds while in service, because of
\neye defect or any other ailment, shall be discharged on  medical  grounds  and
\ntheir service  benefits will be settled.  As per the G.O, the worker should be
\nsubsequently provided with  alternative  employment  in  a  post  like  Helper
\ndepending  upon  his  qualification and experience and suitability for the new
\npost without consulting the employment exchange.  The G.O further states  that
\nsuch a worker should be appointed as fresh entrant only in the scale of pay or
\nconsolidated pay admissible to the new post, and his service terminated on the
\ndate on which he attains superannuation.\n<\/p>\n
        7.  The writ petitioner accepted the alternative employment and joined
\nduty as  Helper  on  8.9.1993.   He was getting Rs.500\/- less than what he was
\ngetting as a driver.  He worked on this alternative employment for  six  years
\nwithout raising any protest whatsoever.  However, in the year 1999, he filed a
\nwrit   petition   seeking   parity   in  pay  and  for  consideration  of  his
\nrepresentation.  On 24.6.99, this Court directed the  management  to  consider
\nthe  representation  of the writ petitioner and pass appropriate orders within
\nsix weeks.  Pursuant to the order of the High Court, the  appellant\/management
\nby  order  dated  31.7.99  rejected  the representation of the writ petitioner
\nstating that he was given alternative employment as  per  G.O.Ms.No.746  dated
\n2.7.1981.   Aggrieved  against  the same, the workman filed the writ petition,
\nwhich was allowed by this Court by the impugned judgment.\n<\/p>\n
        8.  In our opinion, the impugned judgment cannot be sustained  and  is
\nliable to  be set aside on several grounds.  Firstly, the writ petition should
\nnot have been entertained at all, as it was filed belatedly  after  six  years
\nand  hence,  should  have been dismissed straight away on the ground of laches
\nwithout going into the merits.\n<\/p>\n
9.  It is well settled that if there  is  undue  delay  on  the  part  of  the
\npetitioner  in  filing  a  writ  petition,  he  would  not  be entitled to the
\ndiscretionary relief under Article 226 of the Constitution of India.\n<\/p>\n
10.  In State of Maharashtra v.  Digambar, AIR<\/a> 1995 SC 1991 the Supreme  Court
\nobserved  (vide  paragraph-12) that it is well settled by the decisions of the
\nCourt that no person is entitled to obtain equitable relief under Article  226
\nof the Constitution of India if his conduct is blame-worthy because of laches,
\nundue delay, acquiescence, waiver and the like.\n<\/p>\n
11.  Similarly  in Municipal Council, Ahmednagar v.  Shah Hyder Beig, AIR<\/a> 2000
\nSC 671 (vide paragraphs  17 & 18) it was held that when there  is  inordinate
\ndelay  in  filing  a writ petition, the High Court in its discretionary powers
\nunder Article 226 of the Constitution of India can dismiss it on  this  ground
\nwithout going into the merits.\n<\/p>\n
12.  In  Gian  Singh  Mann  v.  P & H High Court, AIR<\/a> 1980 SC 1894, a petition
\nunder Article 226 was filed by the petitioner about 11 years from the date  on
\nwhich he claimed promotion.  The Supreme Court held that such inordinate delay
\ncould  not  be  overlooked  on  the  ground  that  the  petitioner  was making
\nsuccessive representations.\n<\/p>\n
13.  In J.N.Maltiar v.  State of Bihar, AIR 1973 SC  1343  it  was  held  that
\nwhere  the  petitioner,  a  dismissed Government servant, after being informed
\nthat his services were terminated for misconduct, spent about three  years  in
\nsending  memorials  to  the Government, a remedy not provided by law, the High
\nCourt was justified in rejecting the petition on the ground of delay.\n<\/p>\n
14.  In Rajalakshmiah v.  State of Mysore, AIR 1967 SC 993 (vide  paragraph\n<\/p>\n
13)  the  Supreme Court held that the appellants were guilty of laches because
\nafter the impugned order was passed in 1950, they should  have  filed  a  writ
\npetition within  a  reasonable  time  thereafter.    Merely  because the Chief
\nEngineer had espoused their cause and was writing letters from time to time to
\nthe State Government to do something for them did not  mean  that  they  could
\nrest upon their oars if they really had grievance.\n<\/p>\n
15.  In  Srinivasa  Rao  v.   State of Karnataka,<\/a> (1996) 9 SCC 616 the Supreme
\nCourt held that the writ petition was rightly dismissed by the High  Court  as
\nbelated, since it was filed after a long delay of about 15 years.\n<\/p>\n
16.   Thus,  it  is  well  settled  that writ jurisdiction being discretionary
\njurisdiction cannot be invoked by a party who approaches the High Court  after
\nunreasonable delay.   (vide S.A.Rasheed v.  Director of Mines and Geology, AIR<\/a>
\n1995 SC 1739)\n<\/p>\n
17.  No doubt there is no specific limitation provided for under  Article  226
\nfor filing a  writ  petition.    However,  the principle of laches i.e.  undue
\ndelay certainly applies to writ jurisdiction.  The High Court has to  exercise
\nits  writ  jurisdiction  on  settled  legal principles, and one of these legal
\nprinciples is that a writ petition is liable to be dismissed if the petitioner
\nhas come to the High Court after undue delay, as has happened in this case.\n<\/p>\n
18.  We may also clarify that the pursuit of a departmental representation  or
\ncorrespondence  is  no  ground for condoning the delay in approaching the High
\nCourt.  vide (Rajalakshmiah v.  State  of  Mysore  (  supra),  J.N.Maltiar  v.
\nState of Bihar  (supra), Gian Singh Mann v.  P & H High Court<\/a> (supra) etc.  It
\nis only when the representation is a statutory representation  that  the  time
\nspent  in  pursuing it can be taken into consideration in deciding whether the
\npetitioner has approached the High Court after undue delay.  We  cannot  agree
\nwith  the  submission  that  the  delay  in filing the writ petition should be
\ncondoned merely because the petitioner was filing representations  (unless  it
\nwas  a  statutory  representation),  otherwise the petitioner can approach the
\nHigh Court even after 25 years  saying  that  he  was  filing  representations
\nduring these 25 years.\n<\/p>\n
19.   Secondly  the  writ  petitioner  accepted  the alternative employment as
\nHelper without any protest, and hence in  our  opinion  he  is  estopped  from
\nchallenging the said employment and the pay scale attached to that alternative
\nemployment particularly  after  such  a  long  period.    In  fact the workman
\nreceived compensation of Rs.45,000\/-, as ordered by the Motor Accidents Claims
\nTribunal, Dindigul.\n<\/p>\n
        20.  In our opinion, the  appellant  transport  corporation  had  been
\nalready   lenient  to  the  writ  petitioner  by  giving  him  an  alternative
\nemployment, as per G.O.Ms.No.746, Transport Department dated 2.7.1981 .\n<\/p>\n
        21.  On a similar ground, a  Division  Bench  of  this  Court  in  The
\nManagement of D.A.T.C  Limited v.  The Presiding Officer,<\/a> (2002) 12 M.  L.J 61
\nhas upheld the discharge on medical grounds.\n<\/p>\n
        22.  As regards the entitlement of benefit to the petitioner under The
\nPersons with Disabilities (Equal Opportunities, Protection of Rights and  Full
\nParticipation)  Act,  1995,  we  are  of  the opinion that the writ petitioner
\ncannot get any benefit from the same.  As already  observed  above,  the  writ
\npetitioner had  already  availed  the  benefit  of  G.  O.Ms.No.746, Transport
\nDepartment dated 2.7.1981 and he was given alternative employment and  he  had
\nalso joined  the  said  employment  on  8.9.93.  His termination of service on
\nmedical grounds and subsequent reemployment as  per  G.O.Ms.No.746,  Transport
\nDepartment  dated  2.7.198  1 was before the enactment of the aforesaid Act of
\n1995.   The  writ  petitioner  having  availed  the  benefit  of   alternative
\nemployment  and worked for six years cannot be allowed to suddenly raise a new
\ncontroversy, particularly when the Act of 1995 was not even  in  existence  at
\nthe relevant time.\n<\/p>\n
        23.   The  decision  of the Supreme Court in Narendra Kumar Chandla v.
\nState of Harayana (AIR 1995 SC 519) is in our opinion distinguishable for  the
\nreasons  already  mentioned  above,  namely, that in the present case the writ
\npetitioner had accepted the alternative employment as Helper  without  protest
\nin 1993  and  had  worked in the said post for six years.  Hence, he cannot be
\nallowed to rake up a controversy at such a belated stage.   Writ  jurisdiction
\nis discretionary  jurisdiction  vide  Chandra Singh v.  State of Rajasthan and
\nAnother, JT 2003 (6) SC 20 , Ramniklal N.Bhutta v.  State of Maharashtra,<\/a> 1997
\n(1) SCC 134 (vide paragraph-10) etc, and will not be  exercised  if  there  is
\nundue delay.\n<\/p>\n
24.   It is well settled that writ jurisdiction is discretionary jurisdiction.
\nHence, even if there is violation of law, the  High  Court  is  not  bound  to
\ninterfere.  The  Supreme  Court  in  Chandra  Singh v.  State of Rajasthan and
\nAnother (supra) held as under:-\n<\/p>\n
 Issuance of a writ of Certiorari is a discretionary  remedy  (see  Champalal
\nBinani v.   CIT,  West  Bengal,  AIR<\/a>  1970  SC  645).    The  High  Court  and
\nconsequently this Court while exercising its extraordinary jurisdiction  under
\nArticles 226 or 32 of the Constitution of India may not strike down an illegal
\norder although  it  would be lawful to do so.  In a given case, the High Court
\nor this Court may refuse to extend the benefit of a  discretionary  relief  to
\nthe applicant.<\/p>\n
In  our  opinion,  this  was  not  a fit case for exercise of discretion under
\nArticle 226 of the Constitution.\n<\/p>\n
        25.  For the reasons stated above, the appeal is allowed.   No  costs.
\nThe impugned judgment is set aside and the writ petition is dismissed.\n<\/p>\n
Index:Yes
\nInternet:Yes
\npv\/<\/p>\n
Copy to:\n<\/p>\n
The Managing Director
\nTamil Nadu State Transport
\nCorporation (Madurai Division IV) Ltd.,
\nBye-pass Road,
\nCollectorate Post,
\nDindigul.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Managing Director vs P. Ellappan on 7 February, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 07\/02\/2005 Coram: The Honourable Mr.MARKANDEY KATJU, Chief Justice and The Honourable Mr.Justice D.Murugesan Writ Appeal No. 475 of 2000 ———– The Managing Director Tamil Nadu State Transport Corporation (Madurai Division IV) Ltd., Bye-pass […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-37904","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Managing Director vs P. Ellappan on 7 February, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-managing-director-vs-p-ellappan-on-7-february-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Managing Director vs P. 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