Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) Nos.3200-3202/2004
% Date of Decision: 05.04.2011
Union of India & Ors. ..…. Petitioners
Through Ms.Geeta Sharma, Advocate.
Versus
Gopal Saran & Anr. ..…. Respondents
Through Mr.Ashwani Bhardwaj & Mr.S.P.
Sharma, Advocates.
CORAM:
HON’BLE MR.JUSTICE ANIL KUMAR
HON’BLE MS.JUSTICE VEENA BIRBAL
1. Whether reporters of Local papers may
be allowed to see the judgment?
NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be
reported in the Digest?
NO
ANIL KUMAR, J.
*
CM Nos.1867-68/2011
1. These are the applications by the petitioner/applicant for setting
th
aside the order dated 15 December, 2009 dismissing the writ petition
in default of appearance of the petitioner and his counsel and for
condonation of 361 days‟ delay in filing the application seeking setting
aside the writ petition in default.
WP (C) 3200-3202/2004 Page 1 of 7
2. The petitioner/applicant has contended that the matter was
th
taken up by this Court for hearing on 15 December, 2009 on which
date the counsel for the petitioner/applicant missed the case in the
cause list on account of inadvertence and over-sightedness and could
not reach the Court room at the time of hearing on the said day. The
applicant has further contended that sometime in second week of
December, 2010 an enquiry was made by the department from the
counsel when the matter was checked up and the counsel came to
know that the writ petition had been dismissed in default due to non
th
appearance of the parties on 15 December, 2009.
3. The applicant contended that after coming to know sometime in
December, 2010 an application for restoration along with an application
for condonation of delay under Section 5 of the Limitation Act has been
filed within 30 days from the date of knowledge. The applicant asserted
that the condonation of delay is sought by way of abundant caution.
The applicant also contended that grave prejudice would be caused to
the petitioner/applicant if the order dismissing the writ petition in
th
default of appearance of the applicant and his counsel dated 15
December, 2009 is not set aside and 361 days' delay in filing the
application is not condoned.
4. The applications are contested by the respondent contending
inter-alia that the petitioner and his counsel were aware of dismissal of
WP (C) 3200-3202/2004 Page 2 of 7
the writ petition in default of appearance of applicant and his counsel
th
on 15 December, 2009. According to the respondents despite having
th
knowledge of dismissal of the writ petition on 15 December, 2009 no
steps were taken till December, 2010 and the application for restoration
has been filed after a delay of 361 days. The respondent/non-applicant
also contended that the application is supported by the affidavit of
Mr.Yashpal alleged to be authorized signatory, however, it has not been
alleged as to how he has been aware of these facts. It is further
th
contended that the matter was taken up on 24 September, 2009 and
on account of an early hearing granted in the matter it was listed in the
th
category of “Regular Matters for Senior Citizens” on 10 December,
2009. In the circumstances, it was not a case whether the writ petition
had been listed in the category of “Regular Matters” in the cause list
after its admission after a number of years but the matter was listed in
th
the week commencing from 10 December, 2009 and, therefore, the
counsel was aware of listing of the matter in December, 2009. It is
further contended that from the pleas raised in the application also it is
th
apparent that on 15 December, 2009 the counsel could not reach the
Court when the matter was taken up for hearing.
5. The non-applicant/respondents have also contended that no
sufficient cause either in the facts and circumstances or any law has
been made seeking condonation of 361 days‟ delay in filing the
application. According to the respondents it has not been disclosed that
WP (C) 3200-3202/2004 Page 3 of 7
th
after the matter was listed in Regular Matters on 10 December, 2009
why no enquiries were made by the counsel for the petitioner and why
the enquiries were made only after the information was sought by the
department in December, 2010.
6. The non-applicant further contended that he has been
unnecessarily harassed by the petitioner on trivial charges pertaining to
the year 1981. For the alleged charges of 1981 the respondent was
nd
issued a chargesheet on 22 December, 1997. For the delay in issuing
the chargesheet, a petition was filed before the Tribunal and the
Tribunal had directed the petitioners to complete the enquiry within a
th
period of four months from 29 December, 1998. The enquiry was not
completed despite a categorical order in 1998 to complete the enquiry
within four months. After about one year a writ petition was filed
th
against the order of the Tribunal dated 29 December, 1998 granting
four months time, in 2000 which writ petition was disposed of by order
th
dated 7 February, 2001 and the petitioners were granted more time to
complete the enquiry within four months from the date of receipt of the
copy of the order. Despite directions by the Tribunal and the High Court
to complete the enquiry within four months, the enquiry was not
completed for the alleged charges of 1981 which were raised in 1997.
7. The respondents asserted that as the petitioner failed to complete
th
the enquiry within four months pursuant to the order dated 29
WP (C) 3200-3202/2004 Page 4 of 7
December, 1998 and thereafter again within four months pursuant to
th
order dated 7 February, 2001, he filed an O.A No.3010/2002 which
th
was disposed of by the Tribunal by order dated 28 November, 2002
and again 15 days time was granted to the petitioner to pass the order.
th
Yet again the order dated 28 November, 2002 was also not complied
with and the order in the enquiry proceedings was not passed.
8. On failure to pass an order in the enquiry proceedings within 15
th
days from the order dated 28 November, 2002, yet another application
for extension of time was filed by the petitioner which was disposed of
st
by order dated 21 January, 2003 whereafter the order was passed on
th
24 January, 2003. The order was again not passed within the time
granted by the Tribunal. Therefore, the applications of the respondent
th
were allowed and enquiry proceedings were quashed by order dated 6
August, 2003 against which the abovenoted writ petition was filed.
9. In the facts and circumstances it is contended that the petitioners
th
have failed to make out sufficient cause for non appearance on 15
December, 2009 and for condonation of 361 days‟ delay in filing the
application.
10. This Court has heard the learned counsel for the parties. Perusal
th
of the record reveals that on 24 September, 2009 the matter was
ordered to be listed in the category of “Regular Matters for Senior
WP (C) 3200-3202/2004 Page 5 of 7
th
Citizens” in the week commencing from 10 December, 2009 in the
presence of Ms.Geeta Sharma and Ms.Preeti Dalal, advocates on behalf
of petitioners. The writ petition was listed in the category of “Regular
th
Matters” in the week commencing from 10 December, 2009 and was
th
taken up for hearing on 15 December, 2009, however, as no one
appeared on behalf of petitioners though the counsel for the respondent
had appeared, therefore, the Court was pleased to dismiss the writ
petition in default of appearance of the petitioners and his counsel.
11. No reasons have been disclosed as to why no steps were taken by
the petitioner‟s counsel for almost one year when the matter was
th
dismissed in default on 15 December, 2009. The plea of the learned
counsel for the petitioner that by inadvertence the matter was missed
and the counsel could not reach within the time cannot be accepted as
the application is supported by the affidavit of an authorized
representative, Mr.Harish Kumar, son of Sh.A.P.Bangar, Engineer
Officer (D) II, CPWD. This is not the case of the petitioners that
Mr.Harish Kumar, authorized representative was present or had come
to the Court in December, 2009 to ascertain about the case. The plea of
the petitioner‟s counsel does not disclose at all any facts as to how from
December, 2009 till December, 2010 no efforts were made to find out
the fate of the case when it was ordered to be listed in the week
th th
commencing from 10 December, 2009 by order dated 24 September,
2009 in the presence of the counsel for the petitioner.
WP (C) 3200-3202/2004 Page 6 of 7
12. From the pleas and contentions raised by the respondent it is
also apparent that the petitioner filed the chargesheet for an incident
pertaining to 1981 in 1997, i.e., almost after 16 years. Again for
number of years the enquiry was not concluded despite repeated orders
by the Court which have been flouted by the petitioners time and again.
13. In the circumstances, it is difficult to infer that the petitioner has
been able to make out sufficient cause for non appearance of his
th
counsel and the petitioner on 15 December, 2009 nor there is
sufficient cause for condonation of 361 days delay in filing the
application seeking restoration of the writ petition.
In the circumstances, the applications are without any merit and
they are, therefore, dismissed.
ANIL KUMAR, J.
VEENA BIRBAL, J.
April 05, 2011.
„k‟
WP (C) 3200-3202/2004 Page 7 of 7
+ W.P.(C) Nos.3200-3202/2004
% Date of Decision: 05.04.2011
Union of India & Ors. ..…. Petitioners
Through Ms.Geeta Sharma, Advocate.
Versus
Gopal Saran & Anr. ..…. Respondents
Through Mr.Ashwani Bhardwaj & Mr.S.P.
Sharma, Advocates.
CORAM:
HON’BLE MR.JUSTICE ANIL KUMAR
HON’BLE MS.JUSTICE VEENA BIRBAL
1. Whether reporters of Local papers may
be allowed to see the judgment?
NO
2. To be referred to the reporter or not? NO
3. Whether the judgment should be
reported in the Digest?
NO
ANIL KUMAR, J.
*
CM Nos.1867-68/2011
1. These are the applications by the petitioner/applicant for setting
th
aside the order dated 15 December, 2009 dismissing the writ petition
in default of appearance of the petitioner and his counsel and for
condonation of 361 days‟ delay in filing the application seeking setting
aside the writ petition in default.
WP (C) 3200-3202/2004 Page 1 of 7
2. The petitioner/applicant has contended that the matter was
th
taken up by this Court for hearing on 15 December, 2009 on which
date the counsel for the petitioner/applicant missed the case in the
cause list on account of inadvertence and over-sightedness and could
not reach the Court room at the time of hearing on the said day. The
applicant has further contended that sometime in second week of
December, 2010 an enquiry was made by the department from the
counsel when the matter was checked up and the counsel came to
know that the writ petition had been dismissed in default due to non
th
appearance of the parties on 15 December, 2009.
3. The applicant contended that after coming to know sometime in
December, 2010 an application for restoration along with an application
for condonation of delay under Section 5 of the Limitation Act has been
filed within 30 days from the date of knowledge. The applicant asserted
that the condonation of delay is sought by way of abundant caution.
The applicant also contended that grave prejudice would be caused to
the petitioner/applicant if the order dismissing the writ petition in
th
default of appearance of the applicant and his counsel dated 15
December, 2009 is not set aside and 361 days' delay in filing the
application is not condoned.
4. The applications are contested by the respondent contending
inter-alia that the petitioner and his counsel were aware of dismissal of
WP (C) 3200-3202/2004 Page 2 of 7
the writ petition in default of appearance of applicant and his counsel
th
on 15 December, 2009. According to the respondents despite having
th
knowledge of dismissal of the writ petition on 15 December, 2009 no
steps were taken till December, 2010 and the application for restoration
has been filed after a delay of 361 days. The respondent/non-applicant
also contended that the application is supported by the affidavit of
Mr.Yashpal alleged to be authorized signatory, however, it has not been
alleged as to how he has been aware of these facts. It is further
th
contended that the matter was taken up on 24 September, 2009 and
on account of an early hearing granted in the matter it was listed in the
th
category of “Regular Matters for Senior Citizens” on 10 December,
2009. In the circumstances, it was not a case whether the writ petition
had been listed in the category of “Regular Matters” in the cause list
after its admission after a number of years but the matter was listed in
th
the week commencing from 10 December, 2009 and, therefore, the
counsel was aware of listing of the matter in December, 2009. It is
further contended that from the pleas raised in the application also it is
th
apparent that on 15 December, 2009 the counsel could not reach the
Court when the matter was taken up for hearing.
5. The non-applicant/respondents have also contended that no
sufficient cause either in the facts and circumstances or any law has
been made seeking condonation of 361 days‟ delay in filing the
application. According to the respondents it has not been disclosed that
WP (C) 3200-3202/2004 Page 3 of 7
th
after the matter was listed in Regular Matters on 10 December, 2009
why no enquiries were made by the counsel for the petitioner and why
the enquiries were made only after the information was sought by the
department in December, 2010.
6. The non-applicant further contended that he has been
unnecessarily harassed by the petitioner on trivial charges pertaining to
the year 1981. For the alleged charges of 1981 the respondent was
nd
issued a chargesheet on 22 December, 1997. For the delay in issuing
the chargesheet, a petition was filed before the Tribunal and the
Tribunal had directed the petitioners to complete the enquiry within a
th
period of four months from 29 December, 1998. The enquiry was not
completed despite a categorical order in 1998 to complete the enquiry
within four months. After about one year a writ petition was filed
th
against the order of the Tribunal dated 29 December, 1998 granting
four months time, in 2000 which writ petition was disposed of by order
th
dated 7 February, 2001 and the petitioners were granted more time to
complete the enquiry within four months from the date of receipt of the
copy of the order. Despite directions by the Tribunal and the High Court
to complete the enquiry within four months, the enquiry was not
completed for the alleged charges of 1981 which were raised in 1997.
7. The respondents asserted that as the petitioner failed to complete
th
the enquiry within four months pursuant to the order dated 29
WP (C) 3200-3202/2004 Page 4 of 7
December, 1998 and thereafter again within four months pursuant to
th
order dated 7 February, 2001, he filed an O.A No.3010/2002 which
th
was disposed of by the Tribunal by order dated 28 November, 2002
and again 15 days time was granted to the petitioner to pass the order.
th
Yet again the order dated 28 November, 2002 was also not complied
with and the order in the enquiry proceedings was not passed.
8. On failure to pass an order in the enquiry proceedings within 15
th
days from the order dated 28 November, 2002, yet another application
for extension of time was filed by the petitioner which was disposed of
st
by order dated 21 January, 2003 whereafter the order was passed on
th
24 January, 2003. The order was again not passed within the time
granted by the Tribunal. Therefore, the applications of the respondent
th
were allowed and enquiry proceedings were quashed by order dated 6
August, 2003 against which the abovenoted writ petition was filed.
9. In the facts and circumstances it is contended that the petitioners
th
have failed to make out sufficient cause for non appearance on 15
December, 2009 and for condonation of 361 days‟ delay in filing the
application.
10. This Court has heard the learned counsel for the parties. Perusal
th
of the record reveals that on 24 September, 2009 the matter was
ordered to be listed in the category of “Regular Matters for Senior
WP (C) 3200-3202/2004 Page 5 of 7
th
Citizens” in the week commencing from 10 December, 2009 in the
presence of Ms.Geeta Sharma and Ms.Preeti Dalal, advocates on behalf
of petitioners. The writ petition was listed in the category of “Regular
th
Matters” in the week commencing from 10 December, 2009 and was
th
taken up for hearing on 15 December, 2009, however, as no one
appeared on behalf of petitioners though the counsel for the respondent
had appeared, therefore, the Court was pleased to dismiss the writ
petition in default of appearance of the petitioners and his counsel.
11. No reasons have been disclosed as to why no steps were taken by
the petitioner‟s counsel for almost one year when the matter was
th
dismissed in default on 15 December, 2009. The plea of the learned
counsel for the petitioner that by inadvertence the matter was missed
and the counsel could not reach within the time cannot be accepted as
the application is supported by the affidavit of an authorized
representative, Mr.Harish Kumar, son of Sh.A.P.Bangar, Engineer
Officer (D) II, CPWD. This is not the case of the petitioners that
Mr.Harish Kumar, authorized representative was present or had come
to the Court in December, 2009 to ascertain about the case. The plea of
the petitioner‟s counsel does not disclose at all any facts as to how from
December, 2009 till December, 2010 no efforts were made to find out
the fate of the case when it was ordered to be listed in the week
th th
commencing from 10 December, 2009 by order dated 24 September,
2009 in the presence of the counsel for the petitioner.
WP (C) 3200-3202/2004 Page 6 of 7
12. From the pleas and contentions raised by the respondent it is
also apparent that the petitioner filed the chargesheet for an incident
pertaining to 1981 in 1997, i.e., almost after 16 years. Again for
number of years the enquiry was not concluded despite repeated orders
by the Court which have been flouted by the petitioners time and again.
13. In the circumstances, it is difficult to infer that the petitioner has
been able to make out sufficient cause for non appearance of his
th
counsel and the petitioner on 15 December, 2009 nor there is
sufficient cause for condonation of 361 days delay in filing the
application seeking restoration of the writ petition.
In the circumstances, the applications are without any merit and
they are, therefore, dismissed.
ANIL KUMAR, J.
VEENA BIRBAL, J.
April 05, 2011.
„k‟
WP (C) 3200-3202/2004 Page 7 of 7