REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3564 OF 2009 (Arising out of SLP(C) No. 9263 of 2008)

Basanti Prasad                                                                   ……….Appellant

Versus

The Chairman, Bihar School Examination                       Board and Others                                                               ……..Respondents

ORDER

Leave granted.

2) This is a petition for special leave to appeal under Article 136 of the  

Constitution from the judgment and order dated 12.7.2007 of the High  

Court  of  Judicature  at  Patna  in  L.P.A.  No.  521  of  2007.  By  the  

impugned judgment, the High Court has dismissed the appeal.  

3) The relevant facts are, the appellant is the wife of deceased Bhrigu  

Ashram Prasad.  While he was alive, he was working as an Assistant  

in Bihar School Examination Board.  

4) Sometime in the year 1976, the appellant’s husband was kept under  

suspension on account of initiation of criminal proceedings against the  

appellant’s husband and other employees of the Board for tempering  

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with the Marks Sheets of several candidates who had appeared in the  

Annual Secondary School Examination.  

5) On  the  complaint  filed  by  the  Board,  the  jurisdictional  police  

authorities had filed charge sheet against the appellant’s husband and  

other employees of the Board under Section 420, 467, 471, 458 and  

120-B of the I.P.C. before Judicial Magistrate, Patna. After the trial,  

the  Judicial  Magistrate  had  convicted  the  appellant’s  husband  and  

other employees of the Board for the offences alleged in the charge  

sheet and sentenced them to undergo rigorous imprisonment for two  

years for each of the offences under Section 467, 468, 471 and 120-B  

of the  I.P.C.  by his order dated 7.2.1989.  

6) The appellant’s husband and other charge sheeted employees had filed  

Criminal Appeals before the Additional Sessions Judge, Patna, being  

aggrieved by the order passed by the Judicial Magistrate, Patna.

7) While the appeals were pending for consideration, the Bihar School  

Examination Committee, Patna, by its order dated 4th August, 1992,  

terminated the services of the appellant’s husband, since he had been  

convicted by the learned Chief Judicial Magistrate, Patna, for offences  

under  I.P.C.  in  Crime  Case  No.  18/7/TR  No.  121/1998  of  Police  

Station Kotwali, Patna.

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8) The appellant’s husband expired during the pendency of the appeal  

before the Sessions Court, Patna.  With the permission of the court,  

the appellant herein had continued to prosecute the criminal appeal.  

The  learned  Sessions  Judge,  Patna,  has  allowed  the  appeals  and  

thereby has acquitted the appellant’s husband and others.  

9) After disposal of the criminal appeal,  the appellant had approached  

the Bihar School Examination Committee by filing  representations,  

inter alia representing, that, since her husband has been honourably  

acquitted by the Sessions Court in the criminal appeal filed by him  

against the order of conviction passed by the Judicial Magistrate, the  

appellant’s husband is deemed to have remained in service till the date  

of retirement from service and, therefore,  she is entitled for all  the  

retiral  benefits of her late husband.  Since her representations were  

rejected by the Board (Committee), the appellant was constrained to  

file  the  writ  petition  before  High  Court  of  Judicature  at  Patna  in  

C.W.J.C. No. 14536 of 2005, inter alia seeking a writ in the nature of  

mandamus to the Bihar School Examination Board to settle  all  the  

monetary and service benefits payable to her late husband. During the  

pendency of the writ petition,  appellant had  filed I.A. No. 1256 of  

2007, inter alia requesting the court to issue a writ in the nature of  

certiorari to quash the order passed by the Board (Committee) dated  

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4th August,  1992,  terminating  the  services  of  the  appellant  on  the  

ground that he has been convicted in a criminal case.  

10) The court has rejected the writ petition, primarily on the ground that,  

since  the  appellant’s  husband  had  not  questioned  the  order  of  

termination  dated  4.8.1992,  while  he  was  alive  and at  this  belated  

stage  the  appellant  cannot  be  permitted  to  question  the  order  of  

termination of services passed by the Board (Committee).  According  

to the learned Judge, the delay and laches  on the part of the appellant  

in questioning the said order by filing application on 26.2.2007 is fatal  

and the same cannot be condoned. It  is also observed in the order,  

since the appellant’s husband was terminated from service, in view of  

the order of conviction passed by a criminal court and since that order  

is neither modified nor annulled by any superior forum, the appellant  

is not entitled to the relief sought for in the writ petition.  The Letters  

Patent Appeal filed by the appellant is rejected by the High Court on  

the ground, that, the appellant’s husband had not questioned the order  

of termination passed by the Board (Committee), while he was alive  

and,  therefore,  the  appellant  is  not  entitled  for  any  relief,  since  

according to them, it appears to be a case of acquiescence. The court  

has  also  observed,  that,  nothing  prevented  the  appellant’s  husband  

while he was alive to challenge the order of dismissal passed by the  

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Board before the competent forum.  The appellant is before us in this  

appeal, being aggrieved by the aforesaid finding and the conclusion  

reached by the court in L.P.A. No. 521 of 2007 dated 12.7.2007.  

11) The  learned  counsel  for  the  appellant  would  contend,  that,  the  

deceased  employee while  he  was in  service,  did  not  challenge  the  

order  of  dismissal  passed  by  the  Board  (Committee),  since  the  

dismissal order was the direct result of his conviction by the learned  

Magistrate for the offences punishable under the provisions of Indian  

Penal Code.  Assuming even he had questioned it before any superior  

forum,  it  would  not  have  yielded  any  better  result,   since  Bihar  

Service  Code authorizes  the  employer  to  terminate  the  services  of  

government  employee,  if  he  is  convicted  for  offences  punishable  

under Indian Penal Code by a competent criminal court, and since the  

result  of  the  appeal  was  obvious,  the  appellant’s  husband  had  not  

questioned the order, terminating his services by the Board.  Further,  

the learned counsel would submit, even if he had filed Writ Petition  

under Article 226 and 227 of the Constitution, he would not have been  

successful,  since the Bihar Service Code authorizes the employer to  

severe the relationship of employer and employee, if for any reason,  

an employee is convicted for offences under the Indian Penal Code.  It  

is also submitted, that the delinquent employee could not have kept  

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the  petition  alive  before  the  High  Court,  on  the  ground,  that,  his  

criminal appeal is pending before the Sessions Court against the order  

of conviction passed by Judicial Magistrate. Therefore, it is pointed  

out  by the learned counsel,  that,  the High Court  has committed an  

error in rejecting the relief sought by the appellant only on the ground,  

that, in the petition filed in the year 2005, the appellant could not have  

called  in  question  the  order  of  dismissal  passed  by  the  Board  

(Committee)  against  her  husband  in  the  year  1992.    It  is  further  

argued  by  the  learned  counsel  for  the  appellant  that  during  the  

pendency  of  the  criminal  appeal  filed  before  the  Sessions  Court  

against the order of conviction passed by the learned Magistrate, the  

appellant’s  husband could not  have sought  for any relief  from any  

other forum,  since the order of dismissal was staring at the appellant  

and the cause of action for the appellant did arise only after disposal  

of the criminal appeal, wherein the Sessions Court has acquitted the  

appellant’s husband and other employees of the Board.  

12) The learned counsel for the respondent in the course of his argument  

would submit; that, since the deceased employee did not challenge his  

order of dismissal from service during his life time, the High Court  

was justified in rejecting the appeal  on the ground of acquiescence,  

estoppel and delay.  It is further contended, that, since the appellant’s  

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husband  has  expired,  the  Board  (Committee)  cannot  initiate  any  

disciplinary  proceedings  in  which  charges  alleged  against  the  

appellant’s  husband  could  have  been  proved  and  established.  It  is  

further submitted by the learned counsel for the respondent, that, the  

High  Court  was  justified  in  rejecting  the  application  filed  by  the  

appellant for amendment of the prayers made in the Writ Petition, by  

making  an  application  seeking  additional  relief  in  the  year  2007.  

Lastly, it  is submitted merely because, the appellant’s husband was  

acquitted of all the criminal charges by the Sessions Court, it does not  

ipso facto would entitle the appellant for all the reliefs claimed in the  

writ petition and, at any rate, the appellant is not entitled to arrears of  

salary from the date  of  termination till  the employee is  deemed to  

have retired from service on attaining the age of superannuation. In  

aid  of  submission,  the  learned  counsel  brings  to  our  notice  the  

observations made by this Court in the case of G.M. Tank vs. State of  

Gujarat,   (2006) 5 SCC 446.  

13) Before the High Court, the principal question for consideration was  

whether the appellant should be non-suited only on the ground that  

she had belatedly questioned the order of dismissal passed against her  

late husband in the year 1992 in a petition filed in the year 2005 and  

the other incidental  issue was,  whether  the appellant is  entitled for  

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monetary  and  service  benefits  in  view of  the  order  passed  by  the  

Sessions Court acquitting the appellant’s husband from the offences  

alleged against him under Indian Penal Code by setting aside the order  

passed by the Judicial Magistrate who had convicted him for those  

offences after a full fledge trial.  

14) In the normal course, we would not have taken exception to the order  

passed  by  the  High  Court.  They  are  justified  in  saying  that  a  

delinquent employee should not be permitted to revive the stale claim  

and the High Court in exercise of its discretion would not ordinarily  

assist the tardy and indolent person. This is the traditional view and is  

well supported by plethora of decisions of this Court.  This Court also  

has taken the view, that, there is no inviolable rule, that, whenever  

there is delay the court must refuse to entertain a petition.  This Court  

has  stated  that  the  writ  court  in  exercise  of  its  extraordinary  

jurisdiction  under Article  226 of  the  Constitution may condom the  

delay in filing the petition, if the delay is satisfactorily explained

15) Reference may be made at this stage to the decisions of this court in  

the  case  of  Moon Mills  Ltd.  vs.  M.R.  Mehar,  President,  Industrial  

Court,  AIR  1967  SC 1450  and  Maharashtra  State  Road  Transport  

Corporation vs. Balwant Regular Motor Service, (1969) 1 SCR 808,  

wherein  this  court  has  approved  the  view  expressed  by  the  Privy  

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Council in the case of Lindsay Petroleum Co. vs. Prosper Armstrong  

Hurd Abram Farewall and John Kemp (1874) 5 PC 221. The court  

had observed :-  

“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  course  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 course or  the other, so far as relates to the remedy.”  

16) In State of Madhya Pradesh Vs. Nandlal Jaiswal    (1986) 4 SCC 566,  

it was held as under :-

“There can be doubt that the petitioners were guilty of  gross delay in filing the writ petitions with the result that  by the time the writ petitions came to be filed.  If there is  inordinate delay on the part of the petitioner in filing a  writ  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.  The  evolution of this rule of laches or delay is premised upon  a  number  of  factors.  Of Course,  this  rule  of  laches  or  delay  is  not  a  rigid  rule  which  can  be  cast  in  a  strait  

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jacket  formula,  for  there  may  be  cases  where  despite  delay and creation of third party rights the High Court  may still  in  the  exercise  of  its  discretion interfere  and  grant relief to the petitioner.  But, such cases where the  demand of justice is so compelling that the High Court  would be inclined to interfere in spite of delay or creation  of third party rights would by their very nature be few  and far between.  Ultimately it would be a matter within  the discretion of the court; ex hypothesi every discretion  must  be  exercised  fairly  and  justly  so  as  to  promote  justice and not to defeat it.”

17) In Shri Vallabh GlassWorks Ltd. Vs. Union of India (1984) 3 SCC  

362, it was observed:

“While there are different periods of limitation prescribed  for  the  institution  of  different  kinds  of  suits  by  the  Limitation Act, 1963, there is no such period prescribed  by law in respect of petitions filed under Article 226 of  the Constitution.  Whether relief should be granted to a  petitioner under Article 226 of the Constitution where the  cause of action had arisen in the remote past is a matter  of sound judicial discretion governed by the doctrine of  laches. Where a petitioner who could have availed of the  alternative remedy by way of suit approaches the High  Court  under  Article  226  of  the  Constitution,  it  is  appropriate ordinarily to construe any unexplained delay  in the filing of the writ  petition after the expiry of the  period  of  limitation  prescribed  for  filing  a  suit  as  unreasonable.   This  rule,  however,  cannot  be  a  rigid  formula.  There may be cases  where even a  delay of a  shorter  period  may  be  considered  to  be  sufficient  to  refuse  relief  in  a  petition  under  Article  226  of  the  Constitution. There may also be cases where there may  be circumstances which may persuade the court to grant  relief  even  though  the  petition  may  have  been  filed  beyond  the  period  of  limitation  prescribed  for  a  suit.  Each  case  has  to  be  judged  on  its  own  facts  and  circumstances  touching  the  conduct  of  the  parties,  the  

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change in situation, the prejudice which is likely to be  caused to the opposite party or to the general public etc.”

18) We do not think it necessary to burden this judgment with reference to  

various decisions of this Court, where it  has been emphasized time  

and again, that, where there is inordinate and unexplained delay and  

third party rights are created in the intervening period, the High Court  

would  decline  to  interfere.   However,  if  the  delay  is  properly  

explained,  and if the third party rights is not going to be effected, the  

High Court may entertain the petition and consider the case of the  

aggrieved person on merits.

19) Now reverting  back  to  the  facts  of  this  case,  The  services  of  the  

appellant’s husband was terminated only on the ground, that he was  

convicted  by  a  Judicial  Magistrate  for  certain  offences  under  the  

provisions of Indian Penal Code. It is not a case where the delinquent  

employee  was  dismissed  from  service  on  the  ground  that  he  was  

charge sheeted by the police for certain offences under Indian Penal  

Code after holding a departmental enquiry.  In the later circumstances,  

the delinquent employee could not have been heard to say that he did  

not  question the order within a reasonable time, since the order of  

conviction passed by the Judicial Magistrate has nothing to do with  

the  order  passed  by  disciplinary  authority.    As  we  have  already  

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noticed, the dismissal was in view of the order of conviction passed  

by the Magistrate, till that order is set aside by a superior forum, the  

appellant’s  husband or the appellant  could not  have questioned the  

same till he was acquitted by the Sessions Court.  In view of these  

peculiar circumstances, in our view, the High Court was not justified  

in  rejecting  the  prayer  of  the  appellant  primarily  on the ground of  

delay and laches on the part of the appellant in questioning the order  

of termination passed on 4.8.1992 in a petition filed in the year 2005.  

In  the  present  case,  we  are  of  the  opinion  that  there  is  no  such  

negligence or laches or acquiescence on the part of the appellant as  

may disentitle  her  for  grant  of  a  writ.  Having said so,  the matter  

requires to be remanded back to the High Court for taking a decision  

on the merits of the case.  But taking into consideration the pendency  

of the litigation between the parties from last one decade and taking  

also into consideration the plight of the poor widow who is fighting  

the litigation before various forums with limited resources, we desist  

from remanding the matter  and we intend to  decide  the  matter  on  

merits here itself in order to give quietus to this litigation.  

20) What relief the appellant is entitled to is the main issue that falls for  

consideration.  

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21) The facts are not in dispute.  The services of the appellant’s husband  

was terminated only on the ground that he was convicted by a Judicial  

Magistrate  for  the  offences  under  Indian  Penal  Code.   That  only  

means,  no  independent  departmental  enquiry  was  held  against  the  

delinquent employee.  In the appeal filed before the Sessions Court  

against the order of conviction, the appellant has succeeded.   Since,  

the  punishment  imposed  was based on  an  order  of  conviction  and  

since the same is set aside by an  order passed by a superior forum and  

that  order  having  become  final  for  various  reasons,  including  the  

death of the appellant’s husband, as natural corollary, the request of  

the appellant requires to be redressed by the employer and since that  

was done, a writ court ought to have come exercised  its extraordinary  

jurisdiction by commanding the respondents to redress the grievance  

of the appellant without resorting to a hypertechnical approach.  In  

view of the above, the order passed by the respondents terminating the  

services of the appellant requires to be set aside and we do so.

22) It is argued by the learned counsel for the respondent that if the delay  

is condoned and relief is granted to the appellant, the respondent had  

to bear the brunt of paying huge arrears of salary and other monetary  

benefits  and,  secondly,  direction  to  pay  arrears  of  wages  is  not  

automatic and it depends on several factors. The learned counsel has  

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drawn our attention to the observation made by this court in the case  

of G.M. Tank vs. State of Gujarat, wherein this court has stated :-  

“32. In  the  instant  case,  the  appellant  joined  the  respondent  in  the  year  1953.  He  was  suspended  from  service  on  8-2-1979  and  got  subsistence  allowance  of  Rs 700  p.m.  i.e.  50%  of  the  salary.  On  15-10-1982  dismissal order was passed. The appellant had put in 26  years of service with the respondent i.e. from 1953-1979.  The appellant would now superannuate in February 1986.  On the basis of the same charges and the evidence, the  department passed an order of dismissal on 21-10-1982  whereas the criminal court acquitted him on 30-1-2002.  However, as the criminal court acquitted the appellant on  30-1-2002 and until such acquittal, there was no reason  or ground to hold the dismissal to be erroneous, any relief  monetarily can be only w.e.f. 30-1-2002. But by then, the  appellant had retired; therefore, we deem it proper to set  aside  the  order  of  dismissal  without  back  wages.  The  appellant would be entitled to pension.”

23) The facts in the aforesaid decision is more or less akin to the facts and  

circumstances of this case.  Therefore, the issue that we have raised  

for our consideration need not detain us for a long.  Therefore, we are  

of  the  view  that  the  appellant  is  not  entitled  to  back  wages.  The  

appellant would be entitled to pension only.

24) In the result, we allow this appeal.  We set aside the order passed by  

the  learned  Single  Judge  in  CWJC  No.14536  of  2005  dated  

02.05.2007 as affirmed in L.P.A.  No. 521 of 2007 dated 12.07.007.  

However, there shall be no order as to costs.

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                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, May 14, 2009.

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