J P Gautam v. Union of India and Ors.

4.5. However, apparently, on 27.8.2012, the writ petition was, once again, dismissed for non-prosecution. Although the writ petition was dismissed twice, the concerned court appears to have caught the petitioner‟s counsel off-guard on both the occasions, as neither side was represented. This is evident upon perusal of orders dated 3.8.2010 and 27.8.2012. Therefore, a second restoration application was filed. The record reveals that the said application was allowed on 29.11.2016.

4.6. The writ petition, thereafter, it appears,was brought up for hearing before the concerned court in 2018. The record shows that between March 2018 and November 2018, the matter was adjourned from time to time, largely for the reasons that the petitioner‟s counsel or his family member was not well. On one of the occasions, the matter was not taken up as the bar association had struck work, and the matter had to be passed over.

4.7. It is in this background that, finally, the writ petition was dealt with by the court on 10.1.2019. On that date, the court passed the following order: “1. After some argument, learned counsel for petitioner stated that against impugned Appellate Order dated 21.11.2000 whereby punishment has been enhanced by Appellate Authorityto dismissal, petitioner has alternative statutory remedy provided under Rule 49 of Central Industrial Security Force Rules, 1969, therefore, he may be permitted to withdraw this petition with liberty to avail the same.

2. As prayed, this writ petition is dismissed as withdrawn with the aforesaid liberty.”

4.8. It is, thereafter, that the petitioner took recourse to the alternate remedy; first, by way of a revision petition and thereafter by way of an appeal. The revision petition filed by the petitioner did not meet with success, and the same was dismissed by the respondents on 26.7.2019. The appeal preferred by the petitioner met with the same fate, and was dismissed on 25.06.2020.

5. It is in this context that the petitioner approached this Court by way of a writ petition [i.e., W.P. (C) 7769/2021].

5.1. The court, vide order dated 5.8.2021, as noticed above, dismissed the writ petition on the ground of delay and laches. The court, inter alia, observed that since the petitioner had not been in service for nearly 21 years since the date he was removed from service, he would not be of much use to the force i.e., CISF.

5.2. Being aggrieved, the petitioner has moved the present review petition.

6. Notice in the review petition was issued on 24.9.2021. Mr Ranvir Singh, who appears on behalf of the non-applicants/respondents, was present on that date and was accordingly given an opportunity to file a reply. Mr Singh has filed a reply, vis-a-vis the review petition.

6.1. Pertinently, at the hearing held on 12.11.2021, we had also called upon the counsel for the parties to place on record orders passed by the Allahabad High Court prior to the order dated 10.1.2019 when, the writ petition was dismissed as withdrawn to enable the petitioner to avail an alternate remedy.

6.2. Mr P Sureshan, who appears on behalf of the review petitioner/petitioner, has placed on record orders and summary of proceedings; to which we have referred hereinabove.

6.3. Although Mr Singh was also given an opportunity, he has not been able to secure the copies of the orders passed by the concerned court. Given this position, Mr Singh stated that he would argue the matter on the basis of record, presently, available with the court.

7. We have heard counsel for both the parties based on the record made available to us.

8. Having perused the record, we are of the view that the order dated 5.8.2021 needs to be reviewed. The reasons that have impelled us to reach this conclusion are as follows:

(i) As noticed hereinabove, the respondents took nearly three years to file a counter-affidavit in the writ petition filed before the Allahabad High Court and, therefore, in a sense, not only contributed to the delay but also the result. Had the counter-affidavit been filed with due alacrity, if not the petitioner, the respondents could have brought to the notice of the court that an alternate remedy was available to the petitioner.

(ii) Although the petitioner had approached the Allahabad High Court straightaway against the order of removal from service, without taking recourse to an alternate remedy, it is not as if the writ petition was completely untenable or unsustainable in law. The fact that an alternate remedy is available does not emasculate the writ court of its jurisdiction. If an alternate remedy is available, the court would normally expect the litigant to exhaust the remedy available. That being said, these are aspects qua which a litigant more often than not is guided by his advocate‟s advice. Wrong advice as to the forum before which the litigant should agitate his/her grievance cannot always be held against a litigant; the nature of the action, surrounding circumstances, and detriment caused or alteration of position by the opposing party- are some of the factors which need to be borne in mind by the Court. There is in law a subtle and, if we may say so, qualitative distinction between delay and latches.[See the observations made in Hindustan Pencils Private Limited v. India Stationary Products Co., 1989 SCC OnLine Del 341.] “19. It would appear that „inordinate delay‟, which has never been defined by the Courts so far, would be analogous or similar „laches‟. In Whitman v. Dismey Productions, 263 F2d 229 (5) it was observed by the 9th Circuit Court of Appeal in USA as follows:

(iii) The fact that on 10.1.2019, the petitioner saw the wisdom of, perhaps, taking recourse to an alternate remedy cannot be put against him by holding that he was guilty of delay and laches. It is not the respondents‟ stand that the petitioner had not approached the Allahabad High Court in time.

(iv) We are of the view that the matter does need a hearing on merits, as it is the case of the petitioner that there was no material or basis for enhancing his punishment. In particular, what needs to be taken note of is that the petitioner, admittedly, had put in almost 10 years of service. If we were to dismiss the review petition, the petitioner would not have had the chance to ventilate his grievance either before the Allahabad High Court or this Court.

(v) In our opinion, there is an error apparent [given the facts and circumstances of this case], as there has been a failure in applying the correct matrix while dismissing the writ petition on 5.8.2021 on the ground of delay and laches. One has to bear in mind that when a court dismisses an action on the ground of delay, it is not just the expanse of time which is to be taken into account but whether or not the delay caused prejudice to the opposing party.

9. Thus, for the foregoing reasons, we are inclined to review the judgment dated 5.8.2021. It is ordered accordingly. W.P.(C) 7769/2021

10. Issue notice. “Mere passage of time cannot constitute laches, but if the passage of time can be shown to have lulled defendant into a false sense of security, and the defendant acts in reliance thereon, laches may, in the discretion of the trial court, be found.” It would follow, logically, that delay by itself is not a sufficient defence to an action for interim injunction, but delay coupled with prejudice caused to the defendant would amount to „laches‟. As observed by McCARTHY at page 383 “Laches=delayxprejudice”. In this formula, it is the magnitude of the product of delay and prejudice which must be weighed, not the magnitude of solely the quantum of delay or prejudice alone. For example, in one case, a long delay coupled with even a slight amount of prejudice may suffice to prove an adequate defence of laches. Yet, in another case, a short delay coupled with a great amount of resulting prejudice to defendant may also suffice for laches”. It has been emphasised that it is for the defendant to show that there has been prejudice caused by reason of the delay and that it would be unfare[sic unfair] to injunct the defendant from carrying out its activities.”

10.1. Mr Ranvir Sigh accepts notice on behalf of the respondents.

10.2. A counter-affidavit will be filed, within eight weeks from today.

10.3. Rejoinder thereto, if any, will be filed before the next date of hearing.

11. List the matter on 26.8.2022, before the roster bench.

RAJIV SHAKDHER, J AMIT BANSAL, J FEBRUARY 11, 2022