# Sunil Kumar Giri v. Union of India and others

- **Citation:** (2007) 1 ILRA 55
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-08
- **Case number:** Civil Misc. Writ Petition No. 10844 of 2004
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-giri-v-union-of-india-and-others-40883
- **Pages:** 9

## Headnote

Sri A.K. Rai
Sri B.N. Singh (Sr. S.C.)

Central
Civil
Services
(Temporary
Service)
Rules
1965-Rule-5
(a)-a
termination
during
training
period
passed on the basis of assessment of
performance-the material assisting the
authorities come to this conclusion-the
petitioner found misbehaving with lady
constable
under
intoxication-
heldtermination simplicitor and not punitivewarrants no interference by writ court.

Held: Para 18

In the present case, however, merely for
the reason that a show-cause notice was
issued to the petitioner or a preliminary
enquiry was conducted, I am not inclined
to hold that the order of termination,
impugned in the writ petition is punitive
in nature, since, the aforesaid material is
only to aid and assist the authorities to
form an opinion as to whether the
petitioner should be continued in service
or not. They possess power to terminate
him simplicitor and have exercised the
same under the Rules. Therefore, in my
view, it cannot be said that the order
impugned is stigmatic or founded on
alleged
misconduct
and,
therefore,
vitiated in law.
Case law discussed:
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
AIR 1999 SC-983
2002 (1) SCC-743
2003 (3) SCC-263
AIR 2002 SC-23
2003 (96) FLR-1002
2005 (106) FLR-1214
J.T. 2005 (7) SC-512
J.T. 1991 (1) SC-108
AIR 2005 SC-344
2000 92) UPLBEC-1961

## Text

1 All] Sunil Kumar Giri V. Union of India and others
55
against the petitioner, the Court is of the
opinion that the order of dismissal against
the sole charge that was found proved by
the enquiry officer, by itself, cou1d not be
a ground for dismissal of the petitioner.

13. For the reasons stated aforesaid,
the order of termination as well as the
appellate order cannot be sustained and
are quashed. The writ petition is allowed.
The respondents are directed to reinstate
the petitioner within one month from the
date of the production of a certified copy
of
this
order
before
the
authority
concerned. Since, no relief for back wages
has been claimed, this Court is therefore
not inclined to grant any relief of back
wages. Even otherwise, in the opinion of
the Court, since the petitioner had not
worked during the interim period, no
wages can be granted on the basis of the
principle of 'No work no Pay'.

14. Since, only one charge levelled
against the petitioner had been proved,
consequently, the petitioner would not be
entitled to receive the balance pay during
the suspension period other than the
subsistence allowance. The period of
suspension from the date of the dismissal
till the date of reinstatement would
however be counted towards his length of
service. In the circumstances of the case,
parties will bear their own cost.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 10844 of 2004

Sunil Kumar Giri

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri S.P. Giri

Counsel for the Respondents:
Sri A.K. Rai
Sri B.N. Singh (Sr. S.C.)

Central
Civil
Services
(Temporary
Service)
Rules
1965-Rule-5
(a)-a
termination
during
training
period
passed on the basis of assessment of
performance-the material assisting the
authorities come to this conclusion-the
petitioner found misbehaving with lady
constable
under
intoxication-
heldtermination simplicitor and not punitivewarrants no interference by writ court.

Held: Para 18

In the present case, however, merely for
the reason that a show-cause notice was
issued to the petitioner or a preliminary
enquiry was conducted, I am not inclined
to hold that the order of termination,
impugned in the writ petition is punitive
in nature, since, the aforesaid material is
only to aid and assist the authorities to
form an opinion as to whether the
petitioner should be continued in service
or not. They possess power to terminate
him simplicitor and have exercised the
same under the Rules. Therefore, in my
view, it cannot be said that the order
impugned is stigmatic or founded on
alleged
misconduct
and,
therefore,
vitiated in law.
Case law discussed:
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
AIR 1999 SC-983
2002 (1) SCC-743
2003 (3) SCC-263
AIR 2002 SC-23
2003 (96) FLR-1002
2005 (106) FLR-1214
J.T. 2005 (7) SC-512
J.T. 1991 (1) SC-108
AIR 2005 SC-344
2000 92) UPLBEC-1961

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Prakash Giri, learned
counsel for the petitioner and Sri A.K. Rai
appearing for respondents.

2. The writ petition is directed
against the order dated 13th December,
2003
passed
by
Commandant
145
Battalion Central Reserve Police Force,
Nagpur,
Maharastra
terminating
the
service of the petitioner in exercise of
power under Rule 5(1) of Central Civil
Services (Temporary Service) Rules,
1965 (hereinafter referred to as ''1965
Rules'). It is stated that the petitioner was
appointed on the post of constable on
19.4.03 and during the course of training,
a show cause notice was issued on
14.11.2003 and thereafter without any
further notice, by means of impugned
order, he has been terminated w.e.f. 13th
December, 2003.

3. The respondents have filed
counter affidavit wherein it is stated that
during
the
period
of
training, the
performance of the petitioner was not
found satisfactory and therefore he was
terminated in accordance with rules.

4. Heard learned counsel for the
petitioner and perused the record.

5. From the pleadings of the parties
and submissions advanced, the admitted
facts as brought on record are that after
holding a selection for the post of
Constable in Central Reserve Police Force
(hereinafter referred to as ''CRPF' in
short), a letter offering appointment on
the post of Constable was issued to the
petitioner requiring him to report on
3.4.2005 at CRPF Old Air Port, Pandila,
Phaphamau, Allahabad, in case, he
accepts
the
terms
and
conditions
contained in the aforesaid letter, copy
whereof is placed on record as Annexure3 to the writ petition. The petitioner was
offered temporary appointment and as per
condition no. 13 contained in the
aforesaid letter, his service could have
been terminated in accordance with
Central
Civil
Services
(Temporary
Service) Rules, 1965. The petitioner was
to be treated on probation for a period of
two years likely to be extended by the
competent authority, and, on satisfactory
completion of probation, he was liable to
be made permanent. The petitioner
reported and thereafter enlisted in CRPF
on 6.4.2003 at GC-Nagpur as temporary
Constable/G.D. in the pay-scale of Rs.
3030-4590. The letter of appointment was
issued on 19.4.2003 by Additional D.I.G.,
CRPF, Nagpur. Clause 6 of the condition
of appointment letter provides that the
petitioner was to undergo a basic training
at any training center of CRPF and in
case, he is not found suitable at any stage,
he was liable to be discharged. It appears
while
undergoing
training,
the
respondents received some information of
indiscipline on the part of the petitioner
for which a preliminary enquiry was
conducted wherein it was reported that the
petitioner was in the habit of consuming
Alcohol in Recruit Line. Consequently. A
show-cause
notice
was
issued
on
1 All] Sunil Kumar Giri V. Union of India and others
57
14.11.2003. Since, the petitioner was
temporary
in
service,
respondents
subsequently exercising power under Rule
5 of 1965 Rules terminated him.

6. The contention of the learned
counsel for the petitioner is that the
allegation
of
indiscipline
and
consumption of liquor are the foundation
on account whereof the impugned order
of termination has been passed without
holding
any
enquiry
and
affording
opportunity to him. Therefore, the same is
vitiated in law. He further contended that
the respondents in the counter affidavit
have repeatedly pleaded that the petitioner
was reported to be guilty of indiscipline in
the preliminary enquiry being in habit of
consuming liquor and procuring the same
after illegally scaling down campus
premises, which was not in the interest of
the service expected from a person who
has just begun, i.e., during training. It is
contended that in view of the pleadings in
the counter affidavit, the foundation of the
order of termination is evidently the
alleged
misconduct
and
therefore,
termination is not a simplicitor but
amounts to dismissal and is vitiated in
law, since no departmental enquiry has
been conducted against the petitioner.

7. In order to appreciate the
aforesaid contention, the only question
which has to be considered by this Court
is whether the termination order dated
13.10.2003 can be said to be a dismissal
in the garb of termination simplicitor
founded on an alleged misconduct or not.
For appreciation of this question, it would
be appropriate to consider the termination
order itself, which is reproduced as
under:-

"OFFICE ORDER
In continuation to this office notice
even number dated 14.11.2003.
Notice for termination of service was
issued to No. 031456586 RT Sunil Kumar
Giri of this Unit under Rule 5(1) of
Central Civil Service (Temporary Service)
Rules 1965 on 14.11.2003. Accordingly
his service hereby terminated with effect
from the afternoon of 13.12.2003, i.e.,
expiry of one month period and also
struck off strength from this Unit with
effect from the same date 13.12.2003
(AN).
Sd.
A.M.Muhammed
Commandant-145"

8. A bare perusal shows it an order
of termination simpliciter. It is also
apparent from averments in Para 19 of the
writ petition that show-cause-notice was
issued to the petitioner with respect to his
work and performance during training
which was not found to be satisfactory
Thus, it is evident that the petitioner has
been terminated after assessment of his
performance during training. Neither any
stigma has been caused by making such
aspersion in the order of termination nor
attending
circumstance
preceding
impugned order of termination leads to
such conclusion. The petitioner has been
terminated exercising power under Rule
5(1) of 1965 Rules. It would be
appropriate to reproduce the relevant Rule
as under:

"Rule 5(1)(a):-The service of a
Government Servant who is not Quasi
permanent service shall be liable to be
terminated at any time by a notice in
writing given either by the government
servant to the appointing authority or by
58 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the
appointing
Authority
to
the
Government Servant.
(b) :-The period of such notice shall
be one month; provided that the services
of any such Government servant may be
terminated forth with and on such
termination the Government servant shall
be entitled to claim a sum equivalent to
the amount of his pay plus allowances for
the period of the notice at the same rate at
which he is drawing them immediately
before the termination of his service, or as
the case may be for the period by which
such notice falls short of one month."

9. It is not disputed that so long as
the petitioner was not confirmed, he could
have been terminated under 1965 Rules.
When the order of termination is couched
in plain words without casting any
aspersion upon the employee, it cannot be
made or read to be a termination by way
of
punishment
by looking
to
any
background. The golden rule in normal
case
is
to
consider
the
order
of
termination itself to find out its nature.
From the bare perusal of the impugned
order, it cannot be said to be stigmatic or
founded on any alleged misconduct.
Merely if a preliminary enquiry was
conducted to assess the work and
performance of the employee, it cannot be
said that the termination is founded on
alleged misconduct. The question as to
when an order is termination simplicitor
or by way of punishment founded on
alleged misconduct has been considered
by the Apex Court in Dipti Prakash
Banerjee Vs. Satyendra Nath Bose,
AIR 1999 SC 983 and in para 21 of the
judgment
the
distinction
has
been
explained as under :

"If findings were arrived at in an
enquiry as to misconduct, behind the
back of the officer or without a regular
departmental enquiry, the simple order
of termination is to be treated as
"founded" on the allegations and will be
bad. But if the enquiry was not held, no
findings were arrived at and the
employer was not inclined to conduct an
enquiry but, at the same time, he did not
want to continue the employee against
whom there were complaints, it would
only be a case of motive and the order
would not be bad. Similar is the position
if the employer did not want to enquire
into the truth of the allegations because
of
delay
in
regular
departmental
proceedings or he was doubtful about
securing adequate evidence. In such a
circumstance, the allegations would be a
motive and not the foundation and the
simple order of termination would be
valid. From a long line of decisions it
appears to us that whether an order of
termination is simplicitor or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. It may be difficult
either to categorize or classify strictly
orders of termination simplicitor or on
motive on the ground of unsuitability to
continue in service."( para 9)
(emphasis added)
"When the factual scenario of the
present
case
is
considered
in
the
background of legal principles set out
above, the inevitable conclusion is that
the High Court was not justified in
interfering
with
the
order
of
termination."(para 10)

10. Similar situation arises in the
case of State of Punjab Vs. Balbir
Singh, 2002(1) SCC 743. The order of
1 All] Sunil Kumar Giri V. Union of India and others
59
discharge mention the words "unlikely to
prove an efficient police officer." Further
before passing the aforesaid order of
discharge it appears that Shri Balbir
Singh, who was found to have consumed
liquor and misbehaved with a lady
constable was medically examined and
thereafter discharge order was passed.
The appeal, which was filed before the
Deputy Inspector General of Police, was
rejected and while rejecting the appeal, he
referred to the aforesaid facts and stated
that the discharge order was correct. Shri
Balbir Singh challenged the order of
discharge on the basis of the averments
contained therein as well as in the order of
the Deputy Inspector General of Police.
The Hon'ble Apex Court upholding the
aforesaid order of discharge held as
under;-

"In the present case, order of
termination cannot be held to be punitive
in nature. The misconduct on behalf of the
respondent was not the inducing factor
for the termination of the respondent. The
preliminary enquiry was not done with the
object of finding out any misconduct on
the part of the respondent, it was done
only with a view to determine the
suitability of the respondent within the
meaning of Punjab Police Rule 12.21. The
termination was not founded on the
misconduct but the misbehaviour with a
lady constable and consumption of liquor
in office were considered to determine the
suitability of the respondent for the job, in
the loight of the standards of discipline
expected from police personnel."(para 17)

11. In Mathew P. Thomas vs.
Kerala State Civil Supply Corporation
Ltd. and others, (2003) 3 SCC 263 after
following
Dipti
Prakash
Banerjee(
supra)
and
Pavanendra
Narayan
Verma
Vs.
Sanjay
Gandhi
Post
Graduate Institute of Medical Sciences
and another, AIR 2002 SC 23, the
Hon'ble Apex Court has observed as
under:-
"From a long line of decisions it
appears to us that whether on order of
termination is simplicitor or punitive has
ultimately to be decided having due
regard to the facts and circumstances of
each case. Many a times the distinction
between the foundation and motive in
relation to an order of termination either
is thin or overlapping. It may be difficult
either to categorize or classify strictly
orders of termination simplicitor falling
in one or the other category, based on
misconduct as foundation for passing the
order of termination simplicitor or on
motive on the ground of unsuitability to
continue in service. If the form and
language of the so called order of
termination simplicitor of a probationer
clearly indicate that it is punitive in
nature or/and it is stigmatic there may not
be any need to go into the details of the
background
and
surrounding
circumstances in testing whether the
order of termination is simplicitor or
punitive. In cases where the services of a
probationer are terminated by an order of
termination simplicitor and the language
and form of it do not show that either it is
punitive or stigmatic on the face of it but
in some cases there may be a background
and attending circumstances to show that
misconduct was the real basis and design
to terminate the services of a probationer.
In other words, the façade of the
termination order may be simplicitor, but
the real face behind it is to get rid of the
services of a probationer on the basis of
misconduct. In such cases it becomes
necessary to travel beyond the order of
termination simplicitor to find out what in
60 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
reality is the background and what
weighed with the employer to terminate
the services of a probationer. In that
process it also becomes necessary to find
out whether efforts were made to find out
the suitability of the person to continue in
service as he is in reality removed from
service
on
the
foundation
of
his
misconduct."(Para 11)

12. Even otherwise in some case
when the order of termination contains the
words "unsatisfactory work and conduct"
or factum pertaining to suspension etc. the
question was raised as to whether such
order is stigmatic in nature or not. In
Dipti Prakash Banerjee (Supra), the
order of termination mentions the word
''unsatisfactory work and conduct'. After
review of entire case-law, the Apex Court
did not find the aforesaid order to be
stigmatic and held as under:

"At the outset, we may state that in
several cases and in particular in State of
Orrisa Vs. Ram Narain Dass it has been
held
that
the
use
of
the
word
''unsatisfactory work and conduct' in the
termination order will not amount to a
stigma"

13. Similarly, in Pavanendra
Narayan
Verma
(Supra),
it
was
mentioned that ''the work and conduct
was not found satisfactory'. Following the
Dipti Prakash Banerjee (Supra), the
Apex Court in Pavanendra Narayan
Verma held as under :

"Returning now to the facts of the
case before us. The language used in the
order of termination is that the appellant's
"work and conduct has not been found to
be satisfactory". These words are almost
exactly those, which have been quoted in
Dipti Prakash Banerjee's case as clearly
falling within the class of non stigmatic
orders of termination. It is, therefore, safe
to conclude that the impugned order is
not ex facie stigmatic" (para 31)

14. In Dhananjay vs. Chief
Executive Officer, Zila Parishad, Jaina,
2003 (96)FLR 1002 mention of the word
'suspension' in the order of termination
was not held to be stigmatic or punitive.
In State of U.P. and others versus Ram
Bachan Tripathi, 2005(106)FLR 1214
the Hon'ble Apex Court considering as to
when the order of termination can be said
to be stigmatic held as under:-

"We shall first examine the plea
relating to the stigma. Usually a stigma is
understood to be something that is
detraction
from
the
character
or
reputation of a person. It is blemish,
imputation, a mark or label indicating a
deviation from a norm."(Para 6)
"Mere description of a background
fact cannot be called as stigma. In the
termination order it was merely stated
that the show cause notices were issued
and there was no response. This can by
no stretch of imagination be treated as a
stigma as observed by the Tribunal and
the High Court."(Para 7)

15. In Rajasthan State Road
Transport Corporation & others vs.
Zakir Hussain, JT 2005 (7) SC 512 the
Hon'ble Apex Court following its earlier
judgment in the case of State of Uttar
Pradesh & another vs. Kaushal Kishore
Shukla, JT 1991 (1) SC 108 has held as
under:-

"In State of Uttar Pradesh & another
vs. Kaushal Kishroe Shukla this Court has
observed in Para 6 as under:-
1 All] Sunil Kumar Giri V. Union of India and others
61
"The High Court held that the termination
of respondent's services on the basis of
adverse entry in the character roll was
not in good faith and the punishment
imposed on him was disproportionate. It
is unfortunate that the High Court has not
recorded any reasons for this conclusion.
The respondent had earned an adverse
entry and complaints were made against
him with regard to the unauthorized audit
of the boys fund in an educational
institution,
in
respect
of
which
a
preliminary
inquiry
was
held
and
thereupon, the competent authority was
satisfied that the respondent was not
suitable for the service. The adverse entry
as well as the preliminary inquiry report
with
regard
to
the
complaint
of
unauthorized audit constituted adequate
material
to
enable
the
competent
authority to form the requisite opinion
regarding the respondent's suitability for
service. Under the service jurisprudence a
temporary employee has no right to hold
the post and his services are liable to be
terminated
in
accordance
with
the
relevant service rules and the terms of
contract of service. If on the perusal of
the character roll entries or on the basis
of preliminary inquiry on the allegations
made
against
on
employee,
the
competent authority is satisfied that the
employee
is
not
suitable
for
the
whereupon the services of the temporary
employee are terminated, no exception
can be taken to such an order of
termination." (Para 20)
(emphasis added)

16. In Registrar, High Court of
Gujarat and another vs. C.G. Sharma, AIR
2005 Supreme Court 344 the Hon'ble
Apex Court has held as under:-

"We are also satisfied, after perusing
the Confidential Reports and other
relevant vigilance filed etc. that the
respondent is not entitled to continue as a
judicial Officer. The order of termination
is termination simplicitor and not punitive
in nature and, therefore, no opportunity
needs to be given to the respondent
herein. Since the overall performance of
there was found to be unsatisfactory by
the High Court during the period of
probation. It was decided by the High
Court that the services of the respondent
during the period of probation of the
respondent be terminated because of his
unsuitability for the post. In this view of
the
matter,
order
of
termination
simplicitor cannot be said to be violative
of Articles 14, 16 and 311 of the
Constitution of India. The law on the
point is crystallized that the petitioner
remains probationer unless he has been
confirmed on the basis of the work
evaluation. Under the relevant Rules
under
which
the
respondent
was
appointed as a Civil Judge, there is no
provision for automatic or deemed
confirmation and/or deemed appointment
on the regular establishment or post, and
in that view of the matter, the contentions
of the respondent that the respondent
services were deemed to have been
continued on the expiry of the probation
period, are misconceived."

17. Learned counsel for the
petitioner, however, has placed reliance
on the Apex Court Judgment in Chandra
Prakash Shahi Vs. State of U.P. &
others, 2000(2) UPLBEC 1961 (SC).
However, in my view, the aforesaid
judgment does not help at all. It has been
held therein that the Court can lift veil of
an innocuously worded order to look at
the real facet of the order and to find out
62 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
whether it is innocent as worded or not.
The
mere
fact
that
negligence
or
misconduct may have been the factors for
inducing the government to terminate
service of a temporary employee does not
mean that it is founded on misconduct.
Para-11 of the judgment, which highlights
this aspect is reproduced as under:-

"Now, it is well-settled that the
temporary
Government
servants
or
probationers are as much entitled to the
protection of to the protection of Article
311(2)of
the
Constitution
as
the
permanent employees despite the fact that
temporary Government at any time by
giving them a month's notice without
assigning any reason either in terms of
the contract of service or under the
relevant statutory rules regulating the
terms and conditions of such service. The
Courts can, therefore, lift the veil of an
innocuously worded order to look at the
real fact of the order and to find out
whether it is as innocent as worded (See:
Parshotam Lal Dhingra V. Union of
India, AIR 1958 SC 36 ; 1958 SCR 828).
It was explained in this decision that
sufficiency, negligence or misconduct may
have been the factors for inducing the
Government to terminate the services of a
temporary employee under the terms
under the terms of the contract or under
the statutory Service Rules. Regulating
the terms and conditions of service which,
to put it differently, may have been the
motive for terminating the services but the
motive by itself does not make3 the order
punitive unless the order was "founded"
on
those
factors
or
other
disqualifications."

18. In the present case, however,
merely for the reason that a show-cause
notice was issued to the petitioner or a
preliminary enquiry was conducted, I am
not inclined to hold that the order of
termination, impugned in the writ petition
is punitive in nature, since, the aforesaid
material is only to aid and assist the
authorities to form an opinion as to
whether
the
petitioner
should
be
continued in service or not. They possess
power to terminate him simplicitor and
have exercised the same under the Rules.
Therefore, in my view, it cannot be said
that the order impugned is stigmatic or
founded on alleged misconduct and,
therefore, vitiated in law.

19. The next question as to whether
the reasons, if any, mentioned in the
counter affidavit may be taken as
constituting foundation rendering an order
of termination as dismissal or removal or
termination by way of punishment. It is
also no more res-integra, since this aspect
has been considered by Apex Court in
Pavnanendra Narayan Verma (Supra)
and in para 34 and 35 of the judgment, it
has been held as under:-

"That an affidavit cannot be relied
on to improve or supplement on order has
been held by a Constitution Bench in
Mohinder Singh Gill v. The Chief Election
Commissioner, New Delhi...........When a
statutory functionary makes an order
based n certain grounds, its validity must
be judged by the reasons so mentioned
and cannot be supplemented by fresh
reasons in the shape of affidavit or
otherwise.................."(para 34)
"Equally an order which is otherwise
valid cannot be invalidated by reason of
any statement in any affidavit seeking to
justify the order. This is also what was
held in State of Uttar Pradesh v. Kaushal
Kumar Shukla (supra):
1 All] Barati Lal and others V. Natthu
63
"The
allegations
made
against
the
respondent contained in the counter
affidavit by way of a defence filed on
behalf of the appellants also do not
change the nature and character of the
order of termination."( para35)

In view of law as laid down and
discussed
above,
neither
from
the
averments contained in the counter
affidavit nor from the order of termination
or show-cause notice, it can be said that
the impugned termination is stigmatic in
nature instead of termination simplicitor.

In the result, the writ petition lacks
merit and is, accordingly, dismissed
without any order as to costs.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2007

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 21403 of 2006

Barati Lal and others
...Petitioners
Versus
Natthu

...Respondent

Counsel for the Petitioners:
Sri R.R. Shivahare
Sri A.K. Tewari

Counsel for the Respondent:
Sri P.R. Maurya

Code of Civil Procedure-Order 22 Rule-2Abatement of Suit-Appellant died on
23.6.94 substitution application moved
on
1.2.99-without
application
to
condone the delay-without prayer for
rejecting abatement if any-satisfactory
explanation
not
given-substitution
application-held-can not be allowed.
Held: Para 18 & 21

In the entire perspective, it does appear
that the delay was deliberate in spite of
the fact that the respondents were
having knowledge regarding the death
on 22.2.2003, which is apparent on the
basis
of
the
statement
of
the
respondents. But no application prior to
25.4.2003 has been filed. No explanation
has been given by the respondents that
why in spite of the knowledge regarding
the
death
of
two
defendants
on
22.2.2003 application was not filed
within a reasonable period. There is no
explanation in the application filed by
the respondents. In various cases Apex
Court has held that for the purposes of
benefit under Section 5, the sufficient
cause means the sufficient reason has to
be explained for not approaching the
Court within time and day to day delay
has to be explained in the application. If
that has not been explained the same is
fatal. No doubt the law of limitation may
effect a particular party, but it has to be
applied with all its rigour when the
statute so prescribed and the courts
have got no power to extend the period
of limitation on equitable grounds.

In view of the aforesaid fact and in view
of the Apex Court judgements, as there
is no reasonable explanation in the
application for substitution and there is
no
day-to-day
delay
explained,
therefore, in my opinion, allowing the
application by the trial court is liable to
be set aside.
Case law discussed:
1997 (8) J.T.-189
J.T. 2000 (4) S.C.-408
2002 (93) RD-56
2001 (45 ALR-192
1995 SCC (1)-242

(Delivered by Hon'ble Shishir Kumar, J.)

1. The present writ petition has been
filed for quashing the order dated
13.9.2005 (Annexure 4 to the writ