STATE OF JAMMU & KASHMIRversusR.K. ZALPURI AND OTHERS

y,




                   [2015] 12 S.C.R. 285


                STATE OF JAMMU & KASHMIR                      A
                                  v.
                  R.K. ZALPURI AND OTHERS
             (Civil Appeal Nos. 8390-8391of2015)
                                                              B
                      OCTOBER 08, 2015
        [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
      Review- Scope of - Writ petition - Plea of undue delay
taken by the respondents - Single Judge of High Court c
decided the case without adverting to the plea of delay- In
writ appeal also plea of delayllaches specifically taken, not
adverted to - Review petition rejected on the ground that the
parameters of review not attracted - On appeal, held: the.
Single Judge as well as Division Bench failed to address the D
issue of delay!laches despite such stance was eloquently
put forth - As the principal stand of the respondent was not
addressed to, it was a palpable error - The order required
review for the purpose of consideration of the impact of delay
and /aches in preferring the writ petition.                    E

      De/ay!Laches - Consideration of - By the writ. court -
Writ petition by delinquent - Challenging order of his
dismissal from service passed by the Disciplinary Authority
- After about 5 years - Without challenging the same in F
departmental. appeal - State took preliminary objection
regarding de/ayl/aches in filing the petition - Single Judge
of High Court without adverting to the preliminary objection,
allowed the petition on the ground of non-compliance of s.
34 of Jammu and Kashmir Civil Services (Classification, G
Control and Appeal) Rules 1956 - Division Bench of the High
Court also without adverting to the specific plea of delay/
/aches, affirmed the order of Single Judge - Review of the
order passed in LPA was dismissed- On appeal, Held: A writ
                                                              H
                            285
286         SUPREME COURT REPORTS                [2015] 12 S.C.R.

A court is required to remain alive to the nature of the claim
  and the unexplained delay on the part of the petitioner- Stale
  claims not to be adjudicated unless non-interference would
  cause grave injustice - The present case, being stale
  deserved to be thrown at the threshold - Service Law -
B Dismissal.

             Allowing the appeals, the Court
             HELD: 1. The High Court rejected the application
      for review on the ground that it cannot sit in appeal and
C     the parameters of review are not attracted. Nothing in
      Article 226 of the Constitution precludes a High Court
      from exercising the power of review which inheres in
      every court of plenary jurisdiction to prevent miscarriage
      of justice or to correct grave palpable errors committed
D     by it. In the present case, there was a manifest error by
      the High Court, for it had really not taken note of the stand
      and stance that was eloquently put by the State as
      regards the delay and laches. The averments in the writ
E     petition were absolutely silent and nothing had been
      spelt out why the delay had occurred. The Single Judge
      had chosen not to address the said issue. The Division
      Bench in appeal addressed the submission, totally being
      oblivious of the ground pertaining to delay and laches
F     clearly stated in the memorandum of appeal, and
      modified the order passed by the Single Judge as if that
      was the sole submission. It was not an exercise of an
      appellate jurisdiction as is understood in law. It was a
      palpable error, for the principal stand of the State was
G     not addressed to and definitely it had immense
      significance and hence, the same deserved to be
      addressed to. The order required review for the purpose
      of consideration ·Of the impact of delay and laches in
      preferring the writ petition. [Paras 15 and 19) [294-H;
H     295-A-B; 296-G; 297-A-C, D-E]
       STATE OF JAMMU & KASHMIR v. R.K. ZALPURI              287
                  AND OTHERS

     Shivdeo Singh and Ors. vs. State of Punjab and          A
     Others AIR 1963 SC 1909; Aribam Tuleshwar
     Sharma vs. Aribam Pishak Sharma and Ors.
     (1979) 4 SCC 389; Mis. Thungabhadra Industries
     Ltd. vs. The Government of Andhra Pradesh
     represented by the Deputy Commissioner of                B
     Commercial Taxes AIR 1964 SC 1372 : 1964
     SCR 174; Satyanarayan Laxminarayan Hegde
     vs. Mal/ikarjun Bhavanappa Tirumale AIR 1960
     SC 137: 1960 SCR 890 - referred to.
                                                              c
     2. The principle of delay and laches would not
affect the grant of relief in all types of cases. A writ court
while deciding a writ petition is required to remain alive
to the nature of the claim and the unexplained delay on
the pa·rt of the writ petitioner. Stale claims are not to be o
adjudicated unless non-interference would cause grave
injustice. In the present case, the employee was
dismissed from service in the year 1999, but he chose
not to avail any departmental remedy. He woke up from
his slumber to knock at the doors of the High Court after E
a lapse of five years. The staleness of the claim remained
stale and it could not have been allowed to rise like a
phoenix by the writ court. It deserved to be thrown
overboard at the very threshold. [Paras 25, 26 and 28]
[302-D-E, G; 303-A-B]                                          F
     City and Industrial Development Corporation vs.
     Dosu Aardeshir Bhiwandiwala and Others (2009)
     1SCC168: 2008 (16) SCR 28; Karnataka Power
     Corpn. Ltd Through its Chairman & Managing               G
     Director &Anr vs. K. Thangappan and Anr. (2006)
     4 SCC 322: 2006 (3) SCR 783; State of M.P vs.
     Nanda/a/ Jaiswal (1986) 4 SCC 566: 1987 (1)
     SCR 1; State of Maharashtra vs. Digambar(1995)
     4 SCC 683: 1995 (1) Suppl. SCR 492; Chennai              H
288         SUPREME COURT REPORTS               [2015] 12 S.C.R.

A          Metropolitan Water Supply and Sewerage Board
           & Ors. vs. TT. Murali Babu (2014) 4 SCC 108:
           2014 (1) SCR 987; Tukaram Kana Joshi And Ors.
           vs. Maharashtra Industrial Development
           Corporation & Ors (2013) 1 SCC 353: 2012 (13)
8          SCR 29; E.C.l.L. vs. B. Karunaka AIR 1994 SC
           1074: 1993 (2) Suppl. SCR 576- referred to.

                           Case Law Reference

c 1993 (2) Suppl. SCR 576             referred to    Para 6

      AIR 1963 SC 1909                referred to    Para 15

      (1979) 4 sec 389                referred to    Para 16

D 1964SCR174                          referred to    Para 17

      1960 SCR 890                    referred to    Para 18

      2008 (16) SCR 28                referred to    Para 20

E     2006 (3) SCR 783                referred to    Para 21

      1987 (1) SCR 1                  referred to    Para 21

      1995 (1) Suppl. SCR 492        referred to     Para 22

F     2014 (1) SCR 987                referred to    Para 23

      2012 (13) SCR 29               referred to     Para 24

           CIVIL APPELLATE JURISDICTION: Civil Appeal No.
      8390-8391 of 2015
G
           From the Judgment and Order dated 20.10.2011 and
      29.08.2013 of the High court of Jammu and Kashmir at
      Srinagar, in LPA No. 102 of 2010 and Review (LPA) No. 03 of
      2012 in LPA No. 102 of 2010 respectively.
H
        STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                289
                   AND OTHERS

    Sunil Fernandes, Mithu Sen, Astha Sharma, Ashok              A
Mathur for the Appellants.

     Anoop Kr. Srivastav, Gagan Gupta for the Respondents.

      DIPAK MISRA, J. 1.The first respondent was served with
                                                                 8
a Memorandum of Charges on 16th September, 1996, which
was unequivocally refuted by him. The Disciplinary Authority
considering the denial of charges, on 121h November, 1996,
appointed an Inquiry Officer, who after conducting the enquiry,
submitted a report to the Disciplinary Authority which contained c
a finding that the employee had misappropriated a sum of
Rs.2,68,317.00. After the report was submitt.ed, the
Disciplinary Authority issued a show cause notice on 4th June,
1999, whereby it had proposed to terminate the services of
the employee.                                                    D

     2. The first respondent submitted the reply and the
Disciplinary Authority considering the explanation ·passed an
order of dismissal on 5th September, 1999 and he stood
dismissed from that day. The order passed by the State           E
Government dismissing the employee read as follows:-

     "Whereas the commissioner of Inquiries has submitted
     his report to the Government and has found him guilty of
     having embezzled Government money to the tune of F
     Rs.2,68,317.00 (Rupees two lacs, sixty eight thousand,
     three hundred and seventeen only) besides being
     responsible for financial mis-conduct and complete lack
     of devotion to duties.

     Whereas, after considering the report of the inquiry officer G
     the involvement of Shri R.K. Zalpur, Senior Assistant, has
     been established in the embezzlement of Government
     money as indicated above in the office of Resident
     Commissioner, J&K, New Delhi.
                                                                 H
290       SUPREME COURT REPORTS                  [2015) 12 S.C.R.


A        Whereas after accepting the report of the inquiry officer
         and after establishing his involvement, the Government
         has decided to take action against Shri R.K. Zalpuri, Sr.
         Assistant in terms of clause (viii) of rule 30 of the J&K
         (Classification Control and Appeal) Rules, 1956 which
8        provides dismissal from service.

         Whereas, Shri R.K. Zalpuri was informed about the
         decision of the Government vide communication No.
         GAD (Admn.) TA 3391-IV dated 04.06.1999 and was
c        called upon under rules to show cause as to why the
         proposed action is not taken against him.

         Whereas Shri R. K. Zalpuri has furnished his reply to the
         notice served upon him, which has been considered by
D        the Government and no merit was found in he same;

         Now, therefore, Shri R. K. Zalpur, Senior Assistant, in the
         office of the Resident Commissioner, J&K, NewDelhi is
         hereby dismissed from Government service with
E        immediate effect in terms of clause VIII of Rule 30 of J&K
         Civil Service (CCA) Rules, 1956."

         3. After the said order was passed, the first respondent
  did not prefer any departmental appeal nor did he approach
F any superior authority for redressal of his grievance. However,
  on 18th February, 2006, he filed a writ petition (S.W.P. No.352
  of 2006) before the High Court challenging his dismissal from
  service. Various assertions were made in the writ petition with
  regard to the defects in conducting of the inquiry including the
G one that there had been violation of Rule 34 of the Jam mu and
  Kashmir Civil Services (Classification, Control & Appeal)
  Rules, 1956, for he had not been afforded an opportunity of
  hearing in the manner provided in the said Rules. In the writ
  petition nothing was stated what he had done from 1999 to
H 2006.
         STATE OF JAM MU & KASHMIR v. R. K. ZALPURI                291
             AND OTHERS [DIPAK MISRA, J.]

      4. The State Government filed a counter affidavit wherein     A
it had raised a preliminary objection relating to delay and
!aches. The stand taken by the State Government in the counter
affidavit as regards the delay and !aches is as follows:-

     'That, the writ petition instituted by the petitioner is liables
     to be dismissed at its threshold, inasmuch as the same
     is suffering from inordinate and unexplainable delay and
     latches. By virtue of the writ petition instituted in the year
     2006, the petitioner has come to the court to challenge
     an order passed by the answering respondents way back C
     on 06.09.1999. It is submitted that pursuant to the
     issuance of order impugned, the petitioner chose to
     sleep over the matter and acquiesced whatever rights
     assumed to be available to him."
                                                                     D
     5. After putting forth the submission with regard to the
delay and !aches, the State Government defended its action
by asseverating many an aspect, which need not be adverted
to.
                                                                    E
     6. The learned Single Judge vide order dated 141h May,
2010, opined that the show cause notice issued to the
employee was not accompanied with the copies of the
proceedings as envisaged under Rule 34 of the Jammu and
Kashmir Civil Services (Classification, Control & Appeal) F
Rules, 1956 and that did tantamount to denial of reasonable
opportunity to the delinquent official, as has been held by the
Constitution Bench in E.C.l.L.    vs. B. Karunakar1. On that
singular ground, he allowed the writ petition and quashed the
order of dismissal.                                             G

    7. Being grieved by the aforesaid decision, the State
Government preferred Letters Patent Appeal No.102 of 2012.

'AIR 1994 SC 1074                                                  H
292         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A     In the grounds of the Letters PatentAppeal, the State had clearly
      asserted:-

           "That the learned Single Judge, with great respects, has
           not appreciated the specific and important averment
 B         made by the appellants that the respondent had slept
           over the matter for quite seven years and has knocked
           the door of the Hon'ble Court after a gap of seven years,
           thus there was clear unexplained huge delay and !aches
           in filing the writ petition, the same was liable to be
 C         dismissed, however, the learned Single Judge without
           returning any finding on this vital issue has allowed the
           writ petition, therefore, the same is liable to be set aside
           on this ground along."

 D      8.The Division Bench that heard the Letters Patent
   Appeal recorded a singular submission on behalf of the
   learned counsel for the State which was to the effect that it had
   been left without any remedy to proceed against the delinquent
   government servant and, therefore, the order passed by the
 E Learned Single Judge needed modification. The Division
   Bench dealing with the said submission opined thus:-

            "Learned Single Judge has quashed Respondent's
            dismissal from Government service on the ground that
 F          copy of the proceedings prepared under Rule 33 was
            not supplied to the Respondent before passing final
            orders on the provisional conclusion reached at on the
            basis of the inquiry to show cause as to why the proposed
            penalty be not imposed on him.
 G
            Although the Appellants' dismissal was set aside by the
            Court finding non-compliance of the provisions of the Rule
            34 of the Jammu and Kashmir Civil Service
            (Classification, Control and Appeal) Rules, 1956, yet it
 H          cannot be said that the Appellants have been left without
         STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                  293
             AND OTHERS [DIPAK MISRA, J.]

      any remedy to proceed against the delinquent employee A
      on complying with the requirerr>ent of Rule 34.

      The Learned State counsel's contention that the
      Appellants have been left without any remedy to proceed
      agajnst the respondent may not. therefore, be a correct B
      proposition of law.

      However, to set the records straight and allay, the State
      Government's apprehension that they were without any
      remedy, we dispose of this appeal by providing that c
      quashing of Respond~nt's dismissal will not operate as
      impediment for the Appellants to proceed against the
      Respondent for his misconduct after complying with the
      requirement of Rule 34 of the Jammu and Kashmir Civil
      Services (Classification, Control and Appeal) Rules, D
      1956."

       9. It is apt to note here that an application for review being
Review (LPA) No.03 of 2012 was filed wherein a stand was
taken pertaining to delay which we think should be reproduced. E
It reads as under:-

     "T~e appellants filed detailed reply to the maintainability
     of the said writ petition. In the objection, it was specifically
     pleaded before the writ court that the Respondent had F
     slept over the matter and the writ petition is suffering from
     inordinate and unexplained delay and laches, therefore,
     the writ petition filed in the year 2006 against the order
     passed way back in 1999 is liable to be dismissed."

      10. The Division Bench considered the application for G
review and ultimately dismissed the same on the ground that
there was no palpable error warranting review of the order.
The principal order and the order passed in the review are the
subject matters of assail in the present appea Is.
                                                               H
294         SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A            11. We have heard Mr. Sunil Fernandes, learned counsel
      for the appellant-State and Mr. Gagan Gupta, learned counsel
      for the first respondent.

        12. On a perusal of the factual exposition, it is quite vivid
B that the first respondent was dismissed from service on
  5th September, 1999, and he preferred the writ petition on
  18th February, 2006, after a lapse of almost five and a half
  years. The plea relating to delay was specifically taken in the
  counter affidavit as a preliminary objection, but the learned
C Single Judge chose not to address the same. The appellate-
  Bench has noted the submission and modified the order and
  an application for review was filed with the stand that the plea
  pertaining to delay and !aches had not been considered, but
  the review application, as we find from the record, was
D dismissed on the ground that the review could not be treated
  like an appeal in disguise.

          13.Learned counsel for the appellant-State would
   contend that when a categorical stand was taken in the counter
 E affidavit and a specific stance had been put forth in the intra-
   Court appeal as is manifest from the record, the High Court
   should have taken into consideration the same and not
   recorded a finding on a ground which was not taken in the
   grounds of appeal
 F
          14.Learned counsel for the respondent-employee, per
   contra, would contend that the delay and !aches cannot alone
   defeat the cause of justice and in any case, when substantial
   justice has been done this Court should not interfere in exercise
 G of jurisdiction under Article 136 of the Constitution of India.

         15. We have noted that the High Court has rejected the
   application for review on the ground that it cannot sit in appeal
   and the parameters of review are not attracted. In this context,
 H we may refer to the Constitution Bench judgment in Shivdeo
             STATE OF JAMMU & KASHMIR v. R.K. ZALPURI              295
                 AND OTHERS [DIPAK MISRA, J.]

Singh and Others vs. State of Punjab and Others2 , wherein A
it has been observed that nothing in Article 226 of the
Constitution precludes a High Court from exercising the power
of review which inheres in every court of plenary jurisdiction to
prevent miscarriage of justice or to correct grave palpable
errors committed by it.                                           B

      16.ln this regard, reference to Aribam Tuleshwar
Sharma vs. Aribam Pishak Sharma and Others 3 , would
also be apt. In the said case, it has been held thus:-
                                                                    c
        "lt is true as observed by this Court in Shivdeo Singh v.
        State of Punjab, there is nothing in Article 226 of the
        Constitution to preclude a High Court from exercising
        the power of review which inheres in every court of plenary
        jurisdiction to prevent miscarriage of justice or to correct D
        grave and palpable errors committed by it. But, there
        are definitive limits to the exercise of the power of review.
        The power of review may be exercised to the discovery
        of new and important matter or evidence which, after the
        exercise of due diligence was not within the knowledge E
        of the person seeking the .review or could not be
        produced by him at the time when the order was made;
        it may be exercised where some mistake or error
        apparent on the face of the record is found; it may also
        be exercised on any analogous ground. But, it may not F
        be exercised on the ground that the decision was
        erroneous on merits. That would be the province of a
        court of appeal. A power of review is not to be confused
        with appellate powers which may enable an appellate
        Court to correct all manner or errors committed by the G
        subordinate Court."


2
    AJR 1963 SC 1909
                                                                    H
' (1979) 4   sec 389
296            SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A         17. In Mis. Thungabhadra Industries Ltd. vs. The
      Government of Andhra Pradesh represented by the
      Deputy Commissioner of Commercial Taxes4, this Court ·
      while discussing about the concept of review, has ruled that-

B             "a review is by no means an appeal in disguise whereby
              an erroneous decision is reheard and corrected, but lies
              only for patent error. We do not consider that this
              furnishes a suitable occasion for dealing with this-
              difference exhaustively or in any great detail, but it would
C             suffice for us to say that where without any elaborate
              argument one could point to the error and say here is a
              substantial point of law which stares one in the face, and
              there could reasonably be no two opinions, entertained
              about it, a clear case of error apparent on the face of the
D             record would be made out".

           18. Almost fifty-five years back, in Satyanarayan
      Laxminarayan Hegde vs. Mallikarjun Bhavanappa
      Tirumale 5 , it was laid down that:-
E
               "an error which has to be established by a long-drawn
              process of reasoning on points where there may
              conceivably be two opinions can hardly be said to be an
              error apparent on the face of the record. Where an
F             alleged error is far from self-evident and if it can be
              established, it has to be established by lengthy and
              complicated arguments and such an error cannClt be
              cured by a writ of certiorari according to the rule governing
              the powers of the superior court to issue such a writ".
G
           19. We have referred to the aforesaid authorities as we
      are of the convinced opinion that in the present case, there


      ' AIR 1964 SC 1372
H     5   AIR 1960 SC 137
         STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                  297
             AND OTHERS [DIPAK MISRA, J.]

was a manifest error by the High Court, for it had really not A
taken note of the stand and stance that was eloquently put by
the State as regards the delay and !aches. The averments in
the writ petition were absolutely silent and nothing had been
spelt out why the delay had occurred. The Single Judge, as
stated earlier had chosen not to address the said issue.The B
Division Bench in appeal addressed the submission, totally
being oblivious of the ground pertaining to delay and !aches
clearly stated in the memorandum of appeal, and modified
the order passed by the Learned Single Judge as if that was
the sole submission. It needs no special emphasis to state C
that in the obtaining factual matrix, the application for review
did not require delving deep into the factual matrix to find out
the error. It was not an exercise of an appellate jurisdiction as
is understood in law. It can be stated with certitude that it was D
a palpable error, for the principal stand of the State was not
addressed to and definitely it had immense significance and
hence, the same deserved to be addressed to. Therefore, we
are compelled to think that the order required review for the
purpose of consideration of the impact of delay and la ch es in E
preferring the writ petition. Be that as it may, we shall proceed
to deal with the repercussions of delay and !aches, as we are
of the considered opinion that the same deserves to be
addressed to in the present case.
                                                                   F
    20.    Having stated thus, it is useful to refer to a
passage from City and Industrial Development
Corporation vs. Dosu Aardeshir Bhiwandiwala and ·
Others 6 , wherein this Court while dwelling upon jurisdiction
under Article 226 of the Constitution, has expressed thus:-        G

      "The Court while exercising its jurisdiction under Article
      226 is duty-bound to consider whether:


• (2009) 1 sec 168                                                 H
298            SUPREME COURT REPORTS                   [2015] 12 S.C.R.

A             (a) adjudication of writ petition involves any complex and
              disputed questions of facts and whether they can be
              satisfactorily resolved;

              (b) the petition reveals all material facts;
 B
              (c) the petitioner has any alternative or effective remedy
              for the resolution of the dispute;

              (d) person invoking the jurisdiction is guilty of unexplained
              delay and !aches;
c
              (e) ex facie barred by any laws of limitation;

              (f) grant of relief is against public policy or barred by any
              valid law; and host of other factors."
D
              21. In this regard reference to a passage from Karnataka
      Power Corpn. Ltd Through its Chairman & Managing
      Director & Anr Vs. K. Thangappan and Ani' would be
      apposite:-
 E            "Delay or laches is one of the factors which is to be borne
              in mind by the High Court when they exercise their
              discretionary powers under Article 226 of the Constitution.
              In an appropriate case the High Court may refuse to
              invoke its extraordinary powers if there is such negligence
F             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 opposite party".

           After so stating the Court after referring to the authority
G in State of M.P. v. Nanda/al Jaiswa/8 restated the principle
  articulated in earlier pronouncements, which is to the following
  effect:-

      1   (2oos) 4 sec 322
H     '(1986) 4 sec 566
         STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                    299
             AND OTHERS [DIPAK MISRA, J.]

      "the High Court in exercise of its discretion does not A
      ordinarily assist the tardy and the indolent or the
      acquiescent and the lethargic. If there is inordinate delay
      on the part of the petitioner and such delay is not
      satisfactorily explained, the High Court may decline to
      intervene and grant relief in exercise of its writ jurisdiction. B
      It was stated that this rule is premised on a number of
      factors. The High Court does not ordinarily permit a
      belated resort to the extraordinary rem~dy because it is
      likely to cause confusion and public inconvenience and
      bring, in its train new injustices, and if writ jurisdiction is C
      exercised after unreasonable delay, it may have the effect
      of inflicting not only hardship and inconvenience but also
      injustice on thin:~ parties. It was pointed out that when
      writ jurisdiction is invoked, unexplained delay coupled
                                                                       0
      with the creation of third-party rights in the meantime is
      an important factor which also weighs with the High Court
      in deciding whether or not to exercise such jurisdiction".

    22 ..In State of Maharashtra V Digambar'1 a three-judge
bench laid down that:-                                                E

      "19. Power of the High Court to be exercised under Article
      226 of the Constitution, if is discretionary, its exercise
      must be judicious and reasonable, admits of no
      controversy. It is for that reason, a person's entitlement F
      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 G
      refuses to grant the discretionary relief to such person in
      exercise of such power, when he approaches it with
      unclean hands or blameworthy conduct."

' (1995) 4 sec 683                                                    H
3.00             SUPREME COURT REPORTS              [2015] 12 S.C.R.


 A          23. Recently in Chennai Metropolitan Water Supply
       and Sewerage Board & Ors. Vs. T. T. Murali Babu 10 , it has
       been ruled thus:

     .    "Thus, the doctrine of delay and laches should not be
 s 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 extraordina1y and
   equitable jurisdiction. As a constitutional court it has a duty to
   protect the rights of the citizens but simultaneously it is to keep
 C 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 scrutinise whether the lis at a belated stage should
   be entertained or not. Be it noted, delay comes in the way of
 D equity. In certain circumstances delay and !aches 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,
 E "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".

         24. At this juncture, we are obliged to state that the
 F question of delay and laches in all kinds of cases would not
   curb or curtail the power 'Jf writ court to exercise the discretion.
   In Tukaram Kana Joshi And Ors. Vs. Maharashtra
   Industrial Development Corporation & Ors 11 it has been
   ruled that:-
 G
         "Delay and laches is adopted as a mode of discretion to
         decline exercise of jurisdiction to grant relief. There is

       10
            (2014) 4 sec 10s
 H     11
            (2013) 1 sec 353
        STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                    301
            AND OTHERS [DIPAK MISRA, J.]

     another facet. The Court is required to exercise judicial A
     discretion. The said discretion is dependent on facts and
     circumstances of the cases. Delay and !aches is one of
     the facets to deny exercise of discretion. It is not an
     absolute impediment. There can be mitigating factors,
     continuity of cause action, etc. That apart, ifthe whole B
     thing shocks the judicial conscience, then the Court
     should exercise the discretion more so, when no third-
     party interest is involved. Thus analysed, the petition is
     not hit by the doctrine of delay and laches as the same is
     not a constitutional limitation, the cause of action is C
     continuous and further the situation certainly shocks
     judicial conscience".
     And again:-
     "No hard-and-fast rule can be laid down as to when the         D
     High Court should refuse to exercise its jurisdiction in
     favour of a party who moves it after considerable delay
     and is otherwise guilty of laches. Discretion must be
     exercised judiciously and reasonably. In the event that
     the claim made by the applicant is legally sustainable,        E
     delay should be condoned. In other words, where
     circumstances justifying the conduct exist, the illegality
     which is manifest, cannot be sustained on the sole ground
     of laches. When substantial justice and technical              F
     considerations are pitted against each other, the cause
     of substantial justice deserves to be preferred, for the
     other side cannot claim to have a vested right in the
     injustice being done, because of a non-deliberate delay.
     The court should not harm innocent parties if their rights     G
     have in fact emerged by delay on the part of the
     petitioners. (Vide Durga Prashad v. Chief Controller of
     Imports and Exports 12 , Collector (LA) v. Katiji 13 , Dehri

" (1969) 1 sec 185
                                                                    H
" (1987) 2 sec 107
302               SUPREME COURT REPORTS                 [2015] 12 S.C.R.

A                Rohtas Light Railway Co. Ltd. v. District Board,
                 Bhojpur14 , Dayal Singh v. Union of lndia 15 and Shankara
                 Coop. Housing Society Ltd. v. M. Prabhakar16 .)"

                 25. Be it stated, in the said case the appellants were
B deprived of the legitimate dues for decades and the
  Maharashtra Industrial Development Corporation had handed
  over the possession of the property belonging to the appellant
  to the City Industrial Development Corporation of Maharashtra
  without any kind of acquisition and grant of compensation. This
C court granted relief reversing the decision of the High Court
  which had dismissed the writ petition on the ground of delay
  and non-availability of certain documents. Therefore, it is clear
  that the principle of delay and laches would not affect the grant
  of relief in all types of cases.
D
         26. In the case at hand, the employee was dismissed
  from service in the year 1999, out he chose not to avail any
  departmental remedy. He woke up from his slumber to knock
  at the doors of the High Court after a lapse of five years. The
E staleness of the claim remained stale and it could not have
  been allowed to rise like a phoenix by the writ court.

       27. The grievance agitated by the respondent did not
  deserve to be addressed on merits, for doctrine of delay and
F laches had already visited his claim like the chill of death which
  does not spare anyone even the one who fosters the idea and
  nurtures the attitude that he can sleep to avoid death and
  eventually proclaim "Deo gratias" - 'thanks to God'.

G           28. Another aspect needs to be stated. A writ court while
      deciding a writ petition is required to remain alive to the nature

      " (1992) 2       sec 598
      1
          '   (2003) 2 sec 593
H     1
       •      (2011) 5 sec 607
         STATE OF JAMMU & KASHMIR v. R.K. ZALPURI                303
             AND OTHERS [DIPAK MISRA, J.]

of the claim and the unexplained delay on the part of the writ A
petitioner. Stale claims are not to be adjudicated unless non-
interference would cause grave injustice. The present case,
need less to emphasise, did not justify adjudication. It
deserved to be thrown overboard at the very threshold, for the
writ petitioner had accepted the order of dismissal for half a B
decade and cultivated the feeling that he could freeze time
and forever remain in the realm of constant present.

     29. In view of our aforesaid analysis the appeals are
allowed and the judgment and orders passed by the High Court     C
are set aside. There shall be no order as to costs.

Kalpana K. Tripathy   ·                       Appeals allowed.