VYAS, J. - (1.) THIS writ petition has been presented in the Registry of this Court on 22. 12. 2000. The petitioner has primarily challenged impugned orders Annex. 62 dated 4. 5. 1991 whereby pursuant to a departmental enquiry the Appointing Authority has imposed upon him the penalty of dismissal from service and Annex. 64 dated 21. 7. 1992 whereby the appellate authority maintained the penalty order. On its face, the writ petition suffers from gross delay and, therefore, at the outset this Court called upon the counsel for the petitioner to show sufficient cause why this petition may not be dismissed only on the ground of laches.
(2.) THE gruelling narration of the facts leadings to delay in filing the writ petition is that on accrual of the cause of action, after dismissal of his appeal by the appellate authority, the petitioner engaged Shri Vinayak M. Joshi, Advocate and handed over him the file alongwith all relevant material. He also made payment of the full fees and expenses. It is deposed of affidavit on affidavit by the petitioner that Shri Vinayak M. Joshi told him that he will require 2-3 months for setting the copies typed and preparing the writ petition and the petitioner was directed to come again for signing the papers in the last week of October or in November 1992. When in the month of November 1992 the petitioner came to Jodhpur, his Advocate Shri Vinayak M. Joshi was not available at Jodhpur. THErefore, he again came to Jodhpur in December 1992. However, when he met Shri Joshi he was informed by Shri Joshi that his appears are still not ready and so he should come in the month of January 1993; and, in the month of January 1993, he was again asked to come in the month of February 1993. In these circumstances, he enquired of his Advocate Mr. Joshi about limitation in the matter but Shri Joshi told him that in writ petition no limitation is prescribed. The petitioner narrates that in the month of June 1993 Advocate Shri Joshi cut a sorry figure and told him that unfortunately his file is either got lost or it has been misplaced with some other files of the office, therefore, fresh copies of the memorandum of charges and allegations will have to be obtained. The petitioner states on oath in the affidavit that his Advocate Shri Vinayak M. Joshi took from him more vakalatnama in his favour and since Shri Vinayak M. Joshi informed him that his file was not traceable, in the situation, the petitioner moved an application for obtaining certified copies of the relevant documents. Copies were made available to the petitioner on 11. 4. 1994 and, after obtaining the certified copies of the relevant documents, the petitioner handed over the bunch of copies and papers to Shri Vinayak M. Joshi. Then, again the petitioner signed all the blank papers for preparation of the writ petition. The petitioner states that besides himself, his first cousin Mohan Singh Rajpurohit and his own son Dilip Singh made regular enquiry from Shri Vinayak M. Joshi about the writ petition whereupon they were always told that the writ petition has already been filed and has been admitted and will come up for hearing in due course. Thereafter, when the petitioner himself again met Shri Joshi he was told that as and when his personal presence will be required in the matter he would be called. The petitioner further stated that he had also asked Shri Joshi as to how much time the litigation would take in final decision then Shri Joshi told him that looking to the large number of vacancies of Judges, listing of old cases and speed of disposal, the matter may at least take 4-5 years more. In this melee of circumstances, Shri Vinayak M. Joshi died in an accident on 31. 5. 2000. Faced with the situation, the petitioner contacted and requested Advocate Shri Patanjali M. Joshi, brother of late Shri Vinayak M. Joshi to handle his case pending in the High Court for which the petitioner offered him to pay additional fee; but, Shri Patanjali M. Joshi, Advocate told him he would first look into the papers and if he could justify himself for handling the case he would take vakalatnama without charging any additional fee. It is at this juncture the petitioner was informed by Advocate Shri Patanjali M. Joshi that no writ petition was filed in the High Court and petitioner's file containing bunch of documents and blank stout papers duly signed was lying in the office of late Shri Vinayak M. Joshi. This original bunch of documents and papers was shown at the time of arguments and an affidavit was filed along with photostat copies of vakalatnama which were executed by the petitioner in favour of Advocate late Shri Vinayak M. Joshi for filing the writ petition. The bunch of stout papers was also shown and notes prepared by Shri Joshi were also placed before the Court. In the aforesaid circumstances, it is submitted that though the delay in approaching this Hon'ble Court has been occasioned but, in the meantime, nothing has occurred which may put any sort of hindrance in the way of consideration of the writ petition on merit as no right worth the name has arisen in favour of any third person and that being so despite the delay, the grievance of the petitioner may be examined.
(3.) IT is contended by learned counsel for the petitioner that first of all, the delay in filing the writ petition is required to be condoned because as narrated by the petitioner he handed over the papers to the Advocate and paid the fee for filing the writ petition before the Court but it was not filed and assurance was given to him that petition will be filed and as and when his presence will be required in the proceedings he will be called. IT is contended by learned counsel for the petitioner that as per the judgment of the Supreme Court in Rafiq & Anr. vs. Munshi Lal & Anr. (1981 (3) SCR 509), while granting the special leave petition, it was observed as under: " The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. IT is no part of his job. " Therefore, when the petitioner handedover the documents and brief to the Advocate and paid the amount of his fees and drew up vakalatnama in his favour, after assurance that the petitioner will be filed and contested on his behalf, nothing was there to be done by the petitioner himself. But, after the death of Shri Vinayak M. Joshi, Advocate Shri Patanjali Joshi, Advocate, brother of late Shri Vinayak M. Joshi, informed him that the documents along with bunch of papers and notes in the hand of late Shri Vinayak M. Joshi are lying in the office of late Shri Vinayak M. Joshi, for the first time he came to know that petition has not been presented in the Court. It is thereafter, that the present writ petition has been filed in the year 2000. Learned counsel for the petitioner, therefore, urged that in view of the aforesaid the delay in filing the writ petition is required to be condoned. Another judgment cited by the learned counsel for the petitioner is reported in (1969 (2) SCR 824), delivered by the Constitution Bench of the Supreme Court in the case of Tilokchand Motichand & Ors. vs. H. B. Munshi & Anr. He has quoted from the judgment the following excerpt: " If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but this Court need not necessarily give the total time to the litigant to move this Court under Art. 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed, are and how the delay arose. " ;