A retired government servant sought mandamus to decide his 2008 departmental appeal and payment of salary arrears and subsistence allowance. The court held the petition barred by twelve years' delay and laches and found service of the memo of appeal unproved for want of pleadings, dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 83
Case :- WRIT - A No. - 5655 of 2020
Petitioner :- Triveni Prasad Upadhyay Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Man Mohan Singh Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
"To issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No.2 to decide the departmental appeal filed by the petitioner before him against the order dated 30.01.2008, within a specific time as prescribed by the Hon'ble Court.
To issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No.3 to pay the salary for the period of 01.09.1987 to 31.12.1993, subsistence allowance and salary for the period of 01.05.1999 to 19.01.2002 and salary for the period of 20.01.2002 to 28.02.2004 and subsistence allowance for the period of 10.02.2005 to November, 2007 to the petitioner.
To issue a writ, order or direction in the nature of mandamus commanding and directing the respondent No.3 to take final decision on the representation dated 12.10.2019 of the petitioner, which is pending before him.
To issue any other suitable writ, order or direction in favour of the petitioner which this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the ends of justice."
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cannot be relied for several reasons. Firstly, there are no pleadings in regard to the mode of service. Secondly, it is well settled that no document can be relied upon without pleadings to that effect in the writ petition. Moreover, even from the document the assertion of service of memo of appeal upon the respondents cannot be made good. In any case after a period of 12 years, the authenticity of such document cannot be established.
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reported at 2005 (3) SCC 91 held thus:-
"There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third party interest created on account of delay. Even otherwise also why Court should come to rescue of person who is not vigilant of his rights."
13. Hon'ble Supreme Court in Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor Service reported at AIR 1969 SC 329 held thus:-
"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."
14. A similar sentiment was echoed by the Hon'ble Supreme Court in Shiv Dass Vs. Union of India reported at 2007 (9) SCC 274 , Hon'ble Supreme Court opined as under:-
"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled 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."
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"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay."
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compliance of orders of the court, it is claimed that a fresh cause of action has arisen. Stale wine does not become fresh in a new bottle. The Hon'ble Supreme Court saw through the designs of such litigants and foiled their intent in no uncertain terms.
"6. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action
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of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
"It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."
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administration of justice and a bulwark against abuse of process of courts.
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Section 114 of the Evidence Act reads as under :
"114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume_
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
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(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
Section 27 of the General Clauses Act, 1897:
Meaning of service by post -
"Where any 13 [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
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in the writ petition are inadequate. There is no averment in the writ petition that the service was made upon the appellate authority at the correct address after prepaying the postal duty. The designation, or the appellation of the authority concerned and its proper address are not disclosed in the pleadings. In any case, the documents which are appended purportedly in support of the fact that the memo of appeal was served upon the appellate authority cannot be considered in the absence of clear pleadings to this effect.
"The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular
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causes must take."
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
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Inter College reported at 1987 (2) SCC 555 . The Hon'ble Supreme Court declined to permit the parties to adduce evidence in the absence of requisite pleadings, by holding thus:
"It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal."
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party claiming presumption of service.
36. In Meghji Kanji Patel (supra) , the Bombay High Court stated the position of law in the following terms:
"I am afraid, the learned Judge has lost sight of the fact that sending of a letter by registered post merely raises a rebuttable presumption that the letter was delivered to the addressee. In a case where the addressee makes a statement on oath that such a letter was not tendered to him, the presumption stands rebutted. Mr. Gandhi has drawn my attention to the judgment of Mr. Chagla, the then Chief Justice of Bombay, in the case of Appabhai Motibhai v. Laxmichand [(1953) 55 Bom. L.R. 916.] , in which it has been held that O. V, r. 21A, of the Code of Civil Procedure provides for substituted service. Ordinarily, service must be effected personally upon a defendant. Service by a registered post is a special facility to the Court in these modern days to effect service by registered post. But even so that convenience must be properly circumscribed so as not to defeat the ends of justice and it would be a very serious thing if a defendant was not entitled to have an ex-parte decree set aside although that decree was passed on an endorsement made by a postman that the packet had been offered to the defendant and he had refused it. The learned Chief Justice held that, in his opinion, when the defendant came and stated that the registered letter containing a summons was not tendered to him, the Courts below were wrong in refusing to set aside the ex-parte decree on the application made by the defendant. With the above judgment, I respectfully agree. Where an ex-parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement "refused", it is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. In this case, the plaintiff did not summon the postman. The statement on oath of the defendant remained uncontroverted and, in my opinion, there was sufficient ground for setting aside the ex-parte decree and, accordingly, I make an order setting aside the ex-parte decree."
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upheld. The Hon'ble Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana , reported at (1976) 2 SCC 409 held thus:
"A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent-landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v.Kundanmal Chamanlal [AIR 1968 Bom 387 : 70 Bom LR 253] to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused". The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An ex parte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect."
“17. That it is respectfully submitted that aforesaid punishment order was passed in contravention of the principle of natural justice, contrary to the Uttar Pradesh Government Servant (Discipline and Appeal) Rule, 1999 and was also based on wrong facts. Hence being aggrieved by the aforesaid order the petitioner filed an appeal against the aforesaid order dated 30.01.2008 before the District Magistrate, Bhadohi on 28.06.2008. Copy of the appeal filed by the petitioner before the respondent No.2 is annexed herewith and marked as Annexure No.6 to this writ petition.”
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registered post receipt cannot be determined after a period of 12 years. Moreover, the fact of service of the appeal has been squarely rebutted in the counter affidavit. The conditions precedent for drawing a presumption of service of the memo of appeal through registered post under Section 27 of the General Clauses Act cannot be drawn in favour of the petitioner.
Order Date :- 3.11.2020 Ashish Tripathi
2 issues framed by the court
Whether the writ petition challenging the 2008 penalty order and seeking a direction to decide the departmental appeal was barred by delay and laches?
Whether the petitioner could invoke the presumption of service of the memo of appeal by registered post under Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872 in t
Colour shows how this judgement treated each authority
R & M Trust Vs. Koramangala Residents Vigilance Group and othersRelied on¶12
2005 (3) SCC 91 · Who else cites this
Maharashtra State Road Transport Corporation Vs. Balwant Regular Motor ServiceRelied on¶13
AIR 1969 SC 329 · Who else cites this
Shiv Dass Vs. Union of IndiaRelied on¶14
2007 (9) SCC 274 · Who else cites this
Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and OrsRelied on¶15
2011(5)SCC 607 · Who else cites this
C. Jacob Vs. Director of Geology & Min. Indus. Est. and anotherRelied on¶17
2008 (10) SCC 115 · Who else cites this
S.S. Rathore Vs. State of Madhya PradeshRelied on¶18
1989 (4) SCC 582 · Who else cites this
Bacchaj Nahar Vs. Nilima Mandal and othersRelied on¶32
(2008) 17 SCC 491 · Who else cites this
Bhagwati Prasad v. ChandramaulRelied on¶33
AIR 1966 SC 735 · Who else cites this
Ram Sarup Gupta v. Bishun Narain Inter CollegeRelied on¶34
1987 (2) SCC 555 · Who else cites this
Meghji Kanji Patel vs. Kundanmal Chamanlal MehtaniRelied on¶35
A.I.R. 1968 Bom 387 · Who else cites this
Puwada Venkateswara Rao v. Chidamana Venkata RamanaRelied on¶37
(1976) 2 SCC 409 · Who else cites this
3 provisions across 3 enactments
Triveni Prasad Upadhyay
State Of U P And 3 Others
District Magistrate, Bhadohi
Sub-Divisional Magistrate, Gyanpur, Bhadohi
Ajay Bhanot
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
