Anonymous
Asked September 17, 2016

Writ petition objections

  • 1 Answer
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Writ Petition to set aside a charge sheet and reinstate an employee regarding filing a Writ Petition for quashing suspension order and charge sheet, I have the following query: 1. What precaution should be taken for ensuring admission of Writ for hearing? 2. What common objections/arguments can the Management present? 3. How much time it takes from submission to start of hearing? 4. What time frame it will take to get Writ order?

Answer 1

As it can be understood from the description of the facts above that your issues come under the purview of "any other purpose" clause of the Article 226 of the Constitution.  Article 226 says “ Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

Hence, reinstatement and quashing of charge sheet via writ becomes a legal right, not a fundamental right for which the High Court has discretionary power. Therefore it becomes very important to draft the petition very cautiously.

Following things should be taken care of-

  • The alternative remedy available.
  • The Supreme Court has held that where no fundamental right is involved, a High Court would not exercise its jurisdiction under article 226 when an alternate, adequate and efficacious legal remedy is available and the petitioner has not availed the same before coming to the high court.[1]

  • Unreasonable Delay.
  • A writ petition will be thrown out if the petitioner is guilty of laches (unreasonable delay). The court helps the vigilant and not the indolent. The petitioner should be diligent in pursuing his remedy, and file his writ petition within the reasonable time from the date of the order challenged, and an undue delay on his part will debar him from getting the relief.[2]

     

    The Supreme Court has also held that no hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favor of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High court and like all matters left to the discretion of the court, in this matter too discretion must be exercised judiciously and reasonably.[3]

    Following could be the contention of the management-

  • The writ petition is not maintainable.
  • The alternative remedy is available.
  • The opportunity of being heard was duly provided before the suspension.
  • The appellant was held guilty by the inquiry committee.
  • By an amendment of the Civil Procedure code in 1976, it has been expressly provided that the code does not apply to writ proceeding.[4] Since there is no specific procedure followed in writ petition it is not possible to guess the timeframe within which the court shall grant a remedy.

     

    [1] Rashid v. I.T.I Comm., AIR 1954 SC 207

    [2] Durga Prasad v. Chief Controller, AIR 1970 SC 769

    [3] ibid

    [4] Section 141 of C.P.C

    Agree Comment 0 Agrees 12 months ago

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