Rs.No.3627 of 2012 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.3627 of 2012 (O&M) Date of Decision:08.08.2014 Parminder Singh Rahi ..Appellant versus BSNL and others ..Respondents CORAM : HON'BLE Mr.JUSTICE RAMESHWAR SINGH MALIK Present : Mr.S.K.Sharma Budhladawale, Advocate for the appellant.
Mr.Anil Rathee, Advocate for the respondents.
**** 1.
To be referred to the Reporters or not?.
2.
Whether the judgment should be reported in the Digest?.
**** RAMESHWAR SINGH MALIK J.
Plaintiff is in second appeal against the judgment of reversal passed by the learned Additional District Judge, whereby judgment and decree of mandatory injunction passed by the learned trial Court, was set aside and the appeal of the defendants was allowed.
Briefly put, facts of the case are that plaintiff-appellant filed a suit for mandatory injunction, for directing the respondents-defendants to allow one increment to the plaintiff, in view of the circular dated 8.3.1990 and particularly under clause 2(ii) thereof, w.e.f.16.4.1986 alongwith all other consequential benefits.
Having been served in the suit, defendants appeared and filed their written statement taking more than one preliminary objections.
It was stated that the diploma couRs.was not passed by the plaintiff from an institution recognised by Government of India.
Entitlement of the plaintiff Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -2- for claiming one increment on the basis of circular dated 8.3.1990 was denied and it was prayed that suit of the plaintiff may be dismissed.
On completion of pleadings of the parties, learned trial court framed the following issues:- “1.
Whether the plaintiff is entitled to mandatory injunction as prayed for?.
OPP2 Relief.”
.
In order to prove their respective stands taken, both parties led their documentary as well as oral evidence.
After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has proved his case.
Accordingly, suit was decreed vide judgment and decree dated 3.3.2010.
Feeling aggrieved, defendants filed their fiRs.appeal which came to be allowed by the learned Additional District Judge, vide impugned judgment and decree dated 9.4.2012.
Hence, this second appeal at the hands of plaintiff.
Learned counsel for the appellant-plaintiff submits that plaintiff had duly proved his case.
He brought on record cogent and convincing evidence which was sufficient to decree the suit.
The suit was rightly decreed by the learned trial Court.
However, since the learned fiRs.appellate court misdirected itself, while passing the impugned judgment and decree, present appeal deserves to be allowed.
He prays for setting aside the impugned judgment and decree, by allowing the present appeal.
On the other hand, learned counsel for the respondents- defendants submits that the present suit was filed by the plaintiff after his retirement.
Plaintiff retired from the post of Junior TeleCo.Officer, on attaining the age of superannuation on 30.4.2006 whereas the present suit came to be filed by the plaintiff on 13.9.2006, claiming the benefit of one Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -3- advance increment w.e.f.16.4.1986, which was not permissible in law.
Suit of the plaintiff was hopelessly time barred.
Since the learned trial Court misdirected itself while decreeing the suit of the plaintiff on the basis of patently illegal findings, learned Additional District Judge rightly allowed the appeal of the defendants by passing the impugned judgment and the same deserves to be upheld.
He prays for dismissal of the appeal.
Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant one is not a fit case warranting interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short).To say so, reasons are more than one, which are being recorded hereinafter.
Case of the appellant was based on circular dated 8.3.1990 Ex.P-3.
Relevant clause (ii) reads as under: “An additional increment over and above the one mentioned in clause (i) above be given to those who have passed the Diploma/certificate course, the duration of which is not less than one and half years from an institution recognized by the Government of India for admission to which the minimum educational qualification is Matriculation or a recognized equivalent examination and who were/are appointed as Mechanic/Technician, after undergoing the prescribed training satisfactorily with effect from the 16th April 1986 or the date of such appointment which is later.”
.
Although learned counsel for the appellant submitted that the appellant was fully eligible for the benefit of one additional increment in view of the above-said clause of circular dated 8.3.1990, yet he could not Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -4- refer to any evidence to show that appellant has passed his diploma couRs.from an institution recognized by the Government of India, so as to substantiate his arguments.
It is also a matter of record that plaintiff- appellant filed the present suit for mandatory injunction after his retirement on 30.4.2006.
Appellant was claiming the benefit of one additional increment w.e.f.16.4.1986.
In the present case, cause of action, if any, became available to the plaintiff in the month of March 1990.
Thereafter, he served the respondent-department for 16 yeaRs.However, plaintiff kept conveniently silent and did not come to the Court claiming this service benefit for the long 16 yeaRs.Thus, suit of the plaintiff was hopelessly time barred and was liable to be dismissed, for this reason alone.
Having said that, this Court feels no hesitation to conclude that the learned fiRs.appellate court committed no error of law, while passing the impugned judgment and the same deserve to be upheld.
Before arriving at a judicious conclusion, the learned fiRs.appellate court rightly appreciated the true facts of the case as well as the evidence available on record.
Relevant findings recorded by the learned fiRs.Appellate Court in paras 15 to 19 of the impugned judgment read as under:- “It is pertinent to mention here that the order, vide which, the according of the increment to the plaintiff earlier, has not been challenged, nor the suit for mandatory injunction as per Section 41(h) of the Specific Relief Act, when the efficacious remedy is available, could have been filed.
The ratio decidendi laid down in VOL.
CXIV (1996-3).The Punjab Law Reporter- 799 (supra) is squarely applicable to the facts of the present case.
It has been made crystal clear therein that the suit for Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -5- mandatory injunction seeking a direction to the State Government to pay the amounts due to the plaintiff by way of an additional increment, is not maintainable, as an injunction cannot be granted, when equally efficacious relief is available.
The provisions enshrined under Section 39 of the Specific Relief Act provides that: “when to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of and also to compel the performance of the requisite acts.
In the present case, nothing has been brought to my notice that should be considered necessary to compel the performance of certain acts by the State Government in order to claim the relief of mandatory injunction.
On the other hand, Section 41(h) of the Specific Relief Act provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in the case of breach of trust.”
.
The arguments put forth by the learned counsel for the appellant Sh.
Kali Ram Garg are having merit, as the suit for mandatory injunction is not maintainable, when equally efficacious remedy under Section 41(h) could have been invoked, nor the order, vide which, the increment which was accorded earlier vide clause 2(ii) of Ex.P5, has been withdrawn, has been challenged, nor the relief qua the said amount has been sought by way of recovery.
Rather, the suit has been filed under the title seeking the relief of mandatory injunction.
Thus, it stands fortified that the learned lower court has fallen in an error by decreeing the suit of the plaintiff for relief of mandatory injunction.
It is further worth taking note that the plaintiff has filed the suit for relief of mandatory injunction on the ground that he was fulfilling the essential qualifications, but the rules which have Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -6- been produced, have not been considered by the learned lower court on the ground that the same has not been tendered.
The certified copy of the notification has been placed on the file, which is per se-admissible and judicial notice of the same could be taken.
The learned lower court has wrongly interpreted the fact that DW1 Sunil Dutt could not explain the differences between the two “fitters”.
i.e.one mentioned at serial no.2 and the second one mentioned at serial no.30 in Ex.D1.
The order, vide which, the increment has been withdrawn, which was accorded earlier vide order dated 31.7.1997 Ex.P1, the suit thereafter has been filed on 13.9.2006, it is virtually seeking of the recovery of said amount.
Thus, the suit is even barred by limitation, as the same could have been filed within three years from the said date.
Hence, taking into note the totality of the facts coupled with the ratio decidendi laid down in case law VOL.CXIV-(1996-3)-The Punjab Law Reporter-799, the court finds merit in the submissions put forth by learned counsel for the appellants.
The findings accorded by the learned lower court are not sustainable.
In the light of the above discussion, issue No.1 is decided against the respondent/plaintiff and in favour of the appellants.
The findings accorded by the learned lower court are hereby reversed.”
.
Law helps the person who is alert and vigilant.
Law does not help the person like the appellant who kept on sleeping over his rights for more than 16 yeaRs.Such an old and stale claim was liable to be dismissed and the same has been rightly dismissed by the learned fiRs.appellate court.
The abovesaid view taken by this Court also finds support from the judgment rendered by the Hon'ble Supreme Court in Chennai MetropolitanWater Supply and Sewerage Board and others v.
T.T.Murali Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -7- Babu; 2014(1) RSJ542 Relevant observations made by the Hon'ble Supreme Court in paras 13 to 16 of T.T.Murali Babu's case (supra).which can be gainfully followed in the present case, reads as under: “First, we shall deal with the facet of delay.
In Maharashtra State Road Transport Corporation v.
BalwantRegular Motor Service, Amravati and others (AIR1969C329 the Court referred to the principle that has been stated by Sir Barnes Peacock in LindsayPetroleum Co.v.ProsperArmstrongHurd, Abram Farewall, and John Kemp (1874 (5) PC221, which is as follows: “Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine.
Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of couRs.not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.
Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one couRs.or the other, so far as relates to the remedy.”
.
In State of Maharashtra v.
Digambar (1995(4) SCC683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -8- and reasonable, admits of no controversy.
It is for that reason, a persons 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 legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionay relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
In State of M.P.and others etc.etc.v.Nandial Jaiswal and others etc.etc.(AIR1987SC251 the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic.
It has been further stated therein that if there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction.
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
Thus, the doctrine of delay and laches should not be lightly brushed aside.
A writ court is required 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 primary 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 scrutinize whether the lis at a belated stage should be entertained or not.
Be it noted, delay comes in the Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -9- 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 reflects inactivity and inaction on the part of a litigant-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.
In the case at hand, though there has been four years delay in approaching the court, yet the writ court chose not to address the same.
It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification.
That apart, in the present case, such belated approach gains more significance as the respondent employee being absolutely careless to his dutyand nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health.
We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice.
On the contrary, it brings in injustice, for it is likely to affect otheRs.Such delay may have impact on others ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality.
A court is not expected to give indulgence to such indolent persons-who compete with Kumbhakarna or for that matter Rip Van Winkle.
In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.”
.
Returning to the facts of the case in hand and respectfully following the law laid down, in the case referred to here-in-above, it is unhesitatingly held that learned Additional District Judge committed no error of law, while passing the impugned judgment and the same deserves to Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.3627 of 2012 (O&M) -10- be upheld.
During the couRs.of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case in the impugned judgment passed by learned fiRs.appellate court.
He also failed to put into service any substantive argument to convince this Court to take a different view than the one taken by the learned Addl.
District Judge.
Further, no question of law much less substantial question of law has been found involved in the present case, which is sine quo non for interference at the hands of this Court, while exercising its jurisdiction under Section 100 CPC.
Thus, it is unhesitatingly held that the impugned judgement and decree passed by the learned fiRs.appellate court deserve to be upheld, for this reason as well.
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail.
No case for interference has been made out.
Resultantly, instant appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE0808.2014 rajeev Thakral Rajeev 2014.08.20 14:16 I attest to the accuracy and integrity of this document High Court Chandigarh