Delay and latches, in the absence of a reasonable explanation, can lead to the dismissal of a writ petition, even if the impugned action infringes a fundamental right.

Headnote:
DELAY AND LACHES - PENSION PAYMENT - WRIT PETITION DISMISSAL - REASONABLE EXPLANATION - DELAY IN APPROACHING COURT - WRIT PETITION DISMISSAL - UNREASONABLE DELAY - LACK OF EXPLANATION - WRIT PETITION DISMISSAL
Fact of the Case:

The petitioner, a retired head teacher, challenged the pensionary payment order issued in 2002, which deducted an amount of Rs.70,362/- as overdrawal. The petitioner argued that the impugned order infringed his fundamental right and that the delay in approaching the court should not be fatal to his claim.
Finding of the Court:

The court held that the petitioner's writ petition was liable to be dismissed due to gross delay and latches. The court observed that the petitioner had not offered any reasonable explanation for the delay of approximately 8 years between the issuance of the pensionary payment order and the demand for justice.
Issues: 1. Whether the writ petition should be dismissed on the ground of gross delay and latches. 2. Whether the petitioner's fundamental right was infringed by the impugned pensionary payment order.
Ratio Decidendi: 1. The court held that in the absence of any explanation, the court would deny discretionary relief under Article 226 of the Constitution on the ground of delay and latches. 2. The court further held that the delay in approaching the court was unreasonable as it was more than the period of limitation prescribed for a civil action for the remedy.
Final Decision: The court dismissed all the writ petitions on the ground of delay and latches.

Judgment

HARISH TANDON, J.

All these writ petitions are taken up together as the point as to whether the writ petitions should be dismissed on the ground of gross delay and latches is involved therein.

2. For convenience sake, the facts of one of the writ petitions is elaborately and in details, are narrated herein-below for arriving at the decision on the point as indicated above.

3. The reasons which occasioned the delay are identical and verbatim reproduction in all the writ petitions. The facts of writ petition in W.P. 24754 (W) of 2010 are narrated herein-below.

4. The petitioner has challenged the pensionary payment order being Memo No. 3831/P dated February 16, 2002 issued by the office of the Director of Pension Provident Fund and Group Insurance deducting a sum of Rs.70,362/- as overdrawal, in this writ petition.

5. The petitioner lastly worked as a head teacher in Bisharband Primary School, District Paschim Medinipore and was superannuated on and from June 30, 1994. During the tenure of the service, the petitioner was granted an increment in scale of pay by the authorities which was recorded in the service book. Despite being superannuated on June 30, 1994, the impugned pensionary payment order was issued on February 16, 2002. A demand of justice was made by the petitioner on September 17, 2010 which being unattended have constrained the petitioner to file the instant writ petition before this court.

6. Although, the respondents were permitted to file the affidavit-in-opposition, but no affidavit-in-opposition is filed and the learned Advocate appearing for the respondent proceeded to argue the matter on the averments made in the writ petition as according to him even on the basis of the facts stated in the writ petition, the petitioner is not entitle to the relief claimed therein.

7. A point arose in the midst of the argument whether the delay in latches in approaching the Court would defeat the claim of the petitioner.

8. Mr. Sourav Mitra, the learned Advocate appearing for the petitioner submits that delay in approaching the Court cannot be fatal if no third party interest is effected thereby and placed reliance upon a judgment of the Supreme Court in case of Union of India and Ors. Vs. Tarsem Singh reported in (2008) 8 SCC 648. He further submits that if the action of the authorities infringes the fundamental right, the writ petition should not be dismissed on the ground of delay and placed reliance upon a division bench judgment of this High Court in case of Smt. Padma Rani Thakur vs. The Secretary, Departmetn of Home & Ors. reported in 2007 (1) CLJ (Cal) 21. In support of the contention that the authorities are bound to pay the interest on the delayed payment of retrial benefits, he placed reliance upon a judgment of the Supreme Court in case of S.K. Dua vs. State of Haryaana and anr. reported in (2008) 3 SCC 44.

9. Lastly, he submits that there is a sufficient explanation offered in the petition for such delay and as such the writ petition should not be dismissed on such score alone and placed reliance upon a judgment of the Supreme Court in case of Bharat Sanchar Nigam Ltd. vs. Ghanshyam Dass & ors. (2) and Ors. reported in (2011) 4 SCC 374, Leelawanti & ors. vs. State of Haryana & Ors. reported in (2012) 1 SCC 66 and in case of State of Madhya Pradesh & anr. Vs. Bhailal Bhai & ors. reported in AIR 1964 SC 1006 and in case of U.P. Jal Nigam & anr vs. Jaswant Singh and anr. reported in (2006) 11 SCC 464.

10. Mr. Susobhan Sengupta, the learned Advocate appearing for the respondent authorities refutes the contention of the petitioner by submitting that the writ petition does not contain the sufficient explanation for such delay and, therefore, is liable to be dismissed. He further submits that none of the judgment cited by the petitioner speaks of the non-dismissal of the writ petition even if there is a delay and latches apparent on the face of the record and, therefore, those cannot help the petitioner but rathe

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