Judgment:
B.L. Hansaria, C.J.
1. Being called upon to decide whether livelihood of the petitioner was taken away in accordance with the procedure just, fair and reasonable, which is the command of Article 21 of the Constitution, and having known that the petitioner, after he was dismissed from service had to undergo actual hardship so much so that even to approach this Court after his review petition was rejected in 1983, it took him about six years due to ill health combined with bad financial position, we have considered the case from the high pedestal from which a writ Court, being called upon to protect the fundamental right of a citizen of India, does. When a writ Court, to whom justice is dear of all things, is confronted with such a situation, technicalities are not allowed to impede the path of social justice; indeed in exercise of our power under Article 226 technicalities have no scope. It is the justice of the case which motivates a writCourt to exercise its power. Let us see whether any injustice had been done to the petitioner and what dent was caused to Articles 14 and 21, The word 'life' in Article 21 takes care of livelihood after the Constitution Bench decision in Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180; and natural justice has been accepted as a part of Article 14 of the Constitution, because of what has been said in Union of India v. Tulsiram Patel, 1985-II-LLJ-206 and Charan Lal Sahu v. Union of India, AIR 1990 S.C. 1480. Let us see whether the two parts of the golden triangle of the fundamental rights which consist of Articles 14, 19 and 21 stood violated in the present case.
2. The petitioner was a Development Officer under the Life Insurance Corporation of India (shortly called 'the L.I.C.'.) and the charge is that he misappropriated a sum of Rs. 509.38 after having received a cheque meant for one B. Jhunjhunwala, who was an agent of the L.I.C. - the money being a part of the agent's commission which had accrued to B.Jhunjhunwala. L.I.C.'s case is that after this money was received by the petitioner, he forged the signature of B. Jhunjhunwala and deposited the cheque with Biraja Cycle Stores which was enchased on June 20, 1962, and the proceeds were handed over to the petitioner on June 21, 1962. As, however, B. Jhunjhunwala made a complaint (and there are 2-3 such complaints on record) that he had not received the money in question, an enquiry was made and it was found that it was the petitioner who had misappropriated the same. Petitioner's case on the other hand was that he had handed over the amount to a brother of B. Jhunjhunwala-he being one M. Jhunjhunwala-as the former was not available in the town. On the charge being so explained, an enquiry followed and in the enquiry the officer went to the residence of M. Jhunjhunwala to examine him whereupon he denied having received any money from the petitioner. This evidence of M. Jhunjhunwala along with other materials on record was relied upon by the Enquiring Officer to find the petitioner guilty of the charge which led to his dismissal from service by an order passed by the Zonal Manager on January 10, 1964.
3. The petitioner preferred an appeal which was dismissed on October 11, 1965 whereupon O.J.C. No. 189 of 1966 was preferred which was dismissed as withdrawn. A review application came to be preferred afterwards in 1970 which was rejected on August 31, 1972, on the ground of delay. The petitioner filed a title suit in the Court of the First Additional Subordinate Judge, Cuttack, (the suit having been numbered as 150 of 1975) seeking a declaration that the rejection of the review application was illegal. The suit was decreed on February 8, 1980 and the defendant was directed to consider the case on merit. The L.I.C. brought the matter in appeal to this Court which was the subject matter of First Appeal No. 211 of 1980. That appeal was, however, not pressed and the L.I.C. agreed to abide by the decree of the Civil Court. This was on January 19, 1981. The review application ultimately came to be rejected by a reasoned order on April 4, 1983 which was communicated to the petitioner on April 28, 1983. Thereafter this petition was filed on April 21, 1989.
4. At the first instance we may deal with thesubmission of Shri Mohanty appearing for the L.I.C. that the application merits to be rejected on the ground of delay alone. It is known that no limitation is provided as such for approaching this Court under Article 226, but an unexplained delay has been regarded as a ground on which a writ Court may refuse to entertain an application. In this connection, the learned counsel has brought to our notice two decisions of the apex Court, the first of which is Lachhman Dass v. Union of India, AIR 1977 SC. 1979, in which the order of the High Court dismissing the petition summarily because of the approach to it after four years of the discharge without any satisfactory explanation was held to be justified.This decision cannot be read to mean that in every case where approach is after four years, the High Court is duty bound to dismiss the petition. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, AIR 1969 S.C.329, another decision referred by Shri Monhanty, it was stated in paragraph 11 that a writ of certiorari will not be granted in a case where there is such negligence or omission 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 adverse party. On Shri Mohanty being asked as to what prejudice would be caused to the Corporation, the learned counsel submits that if this Court were to grant relief to the petitioner ultimately, which in the present case can only be in the form of compensation as the petitioner has since passed his normal age of superannuation, the payment of the amount would cause prejudice to the Corporation. We do not think if the word 'prejudice' used in the aforesaid decision takes within its fold such payments to be made, if ultimately we were to be satisfied, after examining the case of the petitioner on merits, that a case for compensation has been made out. The word 'prejudice' has to be understood, according to us, to mean that a right has accrued to some person and if that has to be unsettled after a long years that causes prejudice to him. One such illustration can be given. The same is, say some contract is given to a person and after lapse of; time, some grievance is made about that and the Court on feeling satisfied about the merits of the grievance were to upset the contract after a long period, the same would cause definitely prejudice to the other side as, in the meantime, he; might have invested some money and the same may be non-recoverable from the person who was granted the contract.
5. We, therefore, do not think if on the basis of the aforesaid two decisions we would be justified in sending back the petitioner unheard on the merits of the case on the ground of delay. As, however, the ground of delay has been raised by Shri Mohanty, we may refer to what was stated by the apex Court in the case of R.S. Deodhar v. State of Maharashtra, 1974-I-LLJ-221, in which the petitioner was delayed by about 10-12 years in approaching the Supreme Court under Article 32 of the Constitution whereupon a preliminary objection was taken about gross laches. The Court did not feel persuaded to accept this submission because of these reasons: (i) there is no inviolable rule that wherever there is delay the Court must necessarily refuse to entertain a petition as every case ultimately depends on its own facts; (ii) what was challenged was the validity of procedure for making promotion, whether it was violative of equal opportunity clause which was still being followed; (iii) all promotions made were provisional and as no rights had, therefore, accrued in favour of others because of which no reversion was also to result; and (iv) enforcement of fundamental right being in itself a fundamental right relief based on the same cannot ordinarily be refused on the jejune ground of laches, delay or the like. We may also refer to the Constitution Bench decision in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, in which there is a detailed discussion aboutthe period within which a person should approach the Supreme Court under Article 32 and whether the period prescribed in the Limitation Act would apply to such proceedings. The five learned Judges of that Bench gave different reasons on this aspect of the matter and Hidayatullah, C.J., stated that though in England a period of six months had been provided statutorily, the same not having been done in India and the matter having been left to the discretion of the Court, the same has to be exercised in the facts of the case.
6. Let us now see the facts of the present case and more particularly what happened after the review was rejected in 1983 pursuant to the decree of the Civil Court. We are starting from 1983 because prior to that the petitioner had once even approached this Court in 1966 and thereafter filed a suit in 1975 and in First Appeal No. 211 of 1980 which was preferred by the L.I.C., it was agreed that the trial Court's decree requiring consideration of the application of review on merits shall be complied with. As to what happened after 1983 and why he could not come to this Court has been explained in paragraph 15, which is as follows:-
'That the applicant suffered from high blood pressure and other accompanying ailments since 1984 and has been under treatment.
The petitioner is a bona fide resident of Balasore town. The petitioner was admitted to Balasore District Headquarter Hospital on September 8, 1984 and was discharged on October 11, 1984 for cerebral thrombosis and due to want of funds could not get proper diet, medicine and treatment. A true copy of discharge certificate is annexed hereunto and marked as Annexure-8. The petitioner is at present under Ayurvedic treatment of Dr. D.N. Kar and with much difficulties came over to instruct his counsel to file this present application. Chronic physical ailment accompanied by acute financial stringencies the applicant was prevented to come early before this Hon'ble Court.'
We do not think if on these facts if we would be justified in rejecting the petition on the ground of delay. We, therefore, do not concede this prayer of Shri Mohanty.
7. Let us now see the merits of the case. The broad facts having been noticed, the only point on which we should like to express our opinion is whether reliance on the evidence of M. Jhunjhunwala to find the petitioner guilty of the charge along with other materials on record can be said to be such which rendered the enquiry infirm on the ground of violation of the principles of natural justice, because M. Jhunjhunwala was not made available for cross-examination. In this connection Shri Mohanty submits that even on the admitted facts, the Enquiring Officer could have found the petitioner guilty. That may be so, but the fact remains that the Enquiring Officer examined M. Jhunjhunwala and relied on the evidence given by him but without making him available for cross-examination. It is this aspect of the matter which Dr. Panda urges and submits that this was not permissible under the law and natural justice was grossly violated. In reply to this submission of Dr. Panda, Shri Mohanty has referred us to Hira Nath Mishra v. Principal, Rajendra Medical College: 1973-II-LLJ-111 in which on the astounding facts of that case it was held that even if a person gives some evidence against another, natural justice would not always require production of that person for cross-examination. In this decision it was further stated as to what are the requirements of natural justice and these have been enumerated as three, the same being that (i) the person accused should know the nature of the accusation made; (ii) he should be given an opportunity to state his case; and (iii) the tribunal should act in good faith, which was the view expressed by Morman, J. in Byrne v. Kinematogrph Renters Society (1958) 2 ALL ER.579.
8. It is known that natural justice cannot be put in a strait-jacket and its requirements would vary from case to case. It may be that in one case, non- production of the person concerned who stated something against an incumbent for cross-examination may not play foul with the principles of natural justice. But that may be so in exceptional cases of the nature which came before the apex Court in Hira Nath. In that case what had happened was that there was a nude march of some boys in a hostel of girl students who gave statements which were relied upon and used against the boys. On a point being raised that as the girls had not been tendered for cross-examination, there was violation of natural justice, the apex Court stated that it would have been unwise to tender the girls for the aforesaid purpose and so did not feel persuaded to accept the allegation of violation of principles of natural justice. In the present case,we find just no reason as to why M. Jhunjhunwal could not have been made available for cross-examination or as to how anything wrong would have been done to Jhunihunwala for his having been allowed to be cross-examined by the petitioner. This aspect has great importance for the present case, when it is remembered that the kingpin of the petitioner's case is that he had paid the amount to M. Jhunjhunwala. It may be that the Enquiring Officer had no legal obligation toexamine M. Jhunjhunwala and it was for the petitioner basically to produce him as it was his case that the money meant for B. Jhunjhunwala was given to M. Jhunjhunwala; but the Enquiring Officer having done so, and bonafide, to know the version of M. Jhunjhunwala, reliance on the statement of M. Jhunjhunwala without making him available for cross- examination was, according to us, a gross violation of natural justice. Finding arrived at on the basis of such anevidence is not sustainable and we set aside the same.
9. In the result, the impugned order is quashed.
10. The question now left for consideration is what relief can be granted to the petitioner at this stage when Dr. Panda informs us that the age of superannuation of the petitioner is over, and so, the only order which we can pass now is to ask the L.I.C. to pay a reasonable amount ascompensation to the petitioner. In this connection, we shall bear in mind that the petitioner has been late at two stages - the first, after the first review was rejected in 1972, whereafter he filed the suit in 1975, and then after his second review was rejected on merits in 1983, he approached this Court in 1989.
11. Keeping in view all the facts and circumstances of the case, according to us, a sum of Rs. 30,000/- would be adequate compensation to the petitioner, having been informed that the petitioner's pay at the relevant time was about Rs. 500/-, and we order accordingly. This amount shall be paid by the L.I.G. within a period of one month from today.
12. The petition is allowed accordingly.
S.K. Mohanty, J.
13. -I agree.