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2005 DIGILAW 807 (GAU)

Krishna Sarkar v. State of Tripura

2005-11-30

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition filed in 1995, the Petitioner has assailed the legality and validity of an order passed way back in 1977 by which his service as Constable under the Respondents was dispensed with by way of removal from service pursuant to a departmental proceeding. 2. The Petitioner who had entered the services of the Respondents way back in 1968 as a constable was placed under suspension by Annexure-B order dated 14.8.1972 in contemplation of a departmental proceeding. In the meantime the Petitioner was also involved in a criminal case registered under Section 307/326/114 IPC. However, he was acquitted from the criminal case as per judgment and order dated 4.3.78 passed by the learned Additional Sessions Judge, Agartala. 3. The departmental proceeding Under No. 64/76 was drawn up against the Petitioner on 3.1.77 on the charge that he was found absent from roll-call etc. and also overstayed station leave with effect from 31.10.76 to 17.12.76. The Petitioner submitted his written statement of defence denying the charge leveled against him. During suspension, the headquarter of the Petitioner was fixed at Arundhuti Nagar Police Head Quarter in terms of the provisions of Regulation 881 of the Police Regulation of Bengal, 1943 as was made applicable to the Tripura Police. It is the case of the Petitioner that as per the judgment of the Calcutta High Court the clause has been held to be ultra vires of the Constitution and the law of the land. 4. In the departmental proceeding, the charge against the Petitioner was established and the enquiry officer submitted his report on 27.3.1977. Thereafter, by memorandum dated 31.5.77, the Petitioner was asked to show cause as to why he should not be removed from service to which the Petitioner submitted his reply. Upon consideration of the enquiry report and the reply thereto, the impugned order dated 19.7.77 was passed removing the Petitioner from service/Being aggrieved, the Petitioner preferred an appeal and the same was rejected by order dated 29.10.77. Thereafter, the Petitioner preferred a representation to the Chief Minister of the State on 1.7.78 and the same was also rejected by order dated 16.12.1980. The Petitioner preferred a further appeal to the Governor of the state on 16.5.80 to which no reply was furnished. 5. Thereafter, the Petitioner preferred a representation to the Chief Minister of the State on 1.7.78 and the same was also rejected by order dated 16.12.1980. The Petitioner preferred a further appeal to the Governor of the state on 16.5.80 to which no reply was furnished. 5. After the aforesaid developments and long 18 years of the impugned order of removal, the instant writ petition was filed in 1995. The Petitioner has tried to explain the delay in approaching the Court in paragraphs 15 and 16 of the writ petition. In paragraph 15 some vague statements have been made to the effect that the Petitioner had met with several accidents and that he was also attacked by extremists in 1985, which resulted in serious injuries. In paragraph 16 he has stated that although a notice under Section 80 Code of Civil Procedure was served on the Respondents on 17.2.88, he could not take the follow up action due to obvious reason. He has also stated that during the period from 1978 to 1988, the local MLA assured him that his grievance would be redressed. 6. The Respondents have filed their counter affidavit denying the contentions raised in the writ petition. It is their stand in the counter affidavit that absence from parade and roll call without permission makes one liable under Section 29 of the Police Act, 1861. According to them due opportunity was given to the Petitioner to defend himself in the departmental proceeding. As regards the explanation relating to delay, the Respondents have denied the same and have categorically stated that the writ petition is barred by delay, laches and limitation. In the rejoinder affidavit filed by the Petitioner, he has reiterated the stand in the writ petition. 7. I have heard Mr. B. Das, learned Sr. Counsel assisted by Mr. D. Chakraborty, learned Counsel for the Petitioner. I have also heard Mr. A. Ghosh, learned Counsel for the Respondents. Considering the submissions made by them and on the basis of the materials available on records, the following two issues are formulated. (i) Whether the writ petition is liable to be dismissed on ground of delay itself. (ii) Whether the Petitioner is entitled to any relief on merit of the case, if the issue No. 1 is answered in favour of the Petitioner. 8. Mr. (i) Whether the writ petition is liable to be dismissed on ground of delay itself. (ii) Whether the Petitioner is entitled to any relief on merit of the case, if the issue No. 1 is answered in favour of the Petitioner. 8. Mr. Das, learned Counsel for the Petitioner while fairly admitting that there was apparent delay on the part of the Petitioner in approaching the court tried to salvage the situation for the Petitioner by placing reliance on the following decisions: (1) State of Madhya Pradesh v. Syed Qamarali, 1967 (1) SLR (2) Santi Kumar Ganguli v. State of Tripura and other, 1982 (1) GLR 211 (3) G.P. Doval v. Chief Secretary, Government of U.P. AIR 1984 SC 1527 (4) Ramchandra Shankar Deodhar v. State of Maharastra and other AIR 1974 SC 259 9. In support of this contention that the particular regulation has been held to be ultra vires of the Constitution of India by the Calcutta High Court, Mr. Das learned Counsel for the Petitioner placed reliance on the decisions reported in Bhabesh Kumar Pal v. The State AIR 1965 Cal 347 and Dhirendra Kumar Saha v. State of West Bengal and other, 1976 (2) CLJ 10. Countering the argument advanced by Mr. Das, Mr. A. Ghosh, learned State Counsel placing reliance on the following decisions submitted that the writ petition is liable to be dismissed solely on the ground of delay and laches. He also submitted that there being no infirmity in conducting the departmental proceeding, the writ Court in exercise of its power of judicial review would not sit on appeal over the findings recorded by the enquiry officer, the disciplinary authority and the appellate authority. The decisions on which Mr. Ghosh placed reliance are indicated below: (1) State of Haryana v. Miss. Ajay Walia, AIR 1997 SC 3007 (2) Union of India v. Kishorilal Bablani, AIR 1999 SC 517 (3) Raj Kumari v. Delhi Development Authority, AIR 2002 SC 52 (4) Haryana State Handloom and Handicrafts Corporation Ltd. v. Jain School Society, AIR 2004 SC 850 11. I now proceed to deal with the issue No. 1, which is whether the writ petition is liable to be dismissed on ground of delay itself. The writ petition was filed after 18 years of the impugned order of removal from service. I now proceed to deal with the issue No. 1, which is whether the writ petition is liable to be dismissed on ground of delay itself. The writ petition was filed after 18 years of the impugned order of removal from service. Even from the date of the appellate order, which was passed on 29.7.77, there was delay of 18 years. The appeal preferred before the Chief Minister was a non-statutory one and any order passed therein is of no consequence so far as the same relates to the question of delay and laches. Even the said appeal was disposed of by order dated 16.12.80, which was about 15 years back from the date of filing of the writ petition. The explanation furnished in paragraph 15 and 16 of the writ petition are all vague without any material particulars. No reliance can be placed on such vague statements, more particularly when the delay involved in initiating the writ proceeding is long 18 years. It is true that there is no prescribed limitation in entertaining a writ petition and it is the self imposed restraint in exercising the power of judicial review under Article 226 of the Constitution of India. As has been held by the Apex Court in the case reported in Ratan Chandra Samanta v. Union of India and other, AIR 1993 SC 2276 a writ is issued in favour of a person who has some right and not for the sake of roving inquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. 12. In the aforesaid case, the Petitioner approached the court after about 15 years from the date of retrenchment. It was held by the Apex Court that in case of accepting the prayer of the Petitioner, host of others, who in the meantime became eligible and were entitled to claim to be employed, would be deprived. In the instant case, the Petitioner was a constable in the discipline force. Apart from his conduct by remaining absent from the duty place and overstaying the leave, he has also depicted lack of discipline even in the matter of litigation. In the instant case, the Petitioner was a constable in the discipline force. Apart from his conduct by remaining absent from the duty place and overstaying the leave, he has also depicted lack of discipline even in the matter of litigation. He allowed the things to happen over long 18 years and then suddenly woke up from his slumber and approached this Court by filing the instant writ petition. The explanation furnished in paragraphs 15 and 16 of the writ petition does not inspire any confidence of this Court. Even after issuance of the notice under Section 80 Code of Civil Procedure on 17.2.88, the Petitioner awaited for nearly 8 years to approach this Court. In such circumstances, more particularly, when the Petitioner, who belonged to the disciplined police force requiring constant agility and ability is not entitled to any relief from the Writ Court and his writ petition is liable to be dismissed in absence of any reasonable explanation of delay and laches. 13. The decisions on which Mr. Ghosh, learned State Counsel placed reliance are all in the point of delay and laches in approaching the Writ Court and since the issue has been decided in favour of the Respondents and against the Petitioner, the same need not be discussed in detail. 14. The decisions on which Mr. Das, learned Counsel for the Petitioner has placed reliance to save the limitation in filing the writ petition which is so staring on the face of it are of no help to the case of the Petitioner. The decisions were rendered in the fact situation of the cases and are not applicable to the facts and circumstances involved in this case. While the decision in Syed Qamarali (Supra) was towards rejection of the objection relating to limitation in respect of a suit for recovery of pay filed seven years after dismissal but pay and allowances claimed for three years immediately preceding the date of institution of the suit, the decision in Ramchandra Shankar (supra) is on the principles involved in refusing relief on ground of delay and laches. The other two cases namely Santi Kumar Ganguli and G.P. Doval (supra) are also on the fact situation of those cases. In Dovals (supra) case the plea of 12 years delay in challenging the seniority list was rejected on the ground that the same was not finalized. The other two cases namely Santi Kumar Ganguli and G.P. Doval (supra) are also on the fact situation of those cases. In Dovals (supra) case the plea of 12 years delay in challenging the seniority list was rejected on the ground that the same was not finalized. Further the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it see. Lord Halsbury in Quinn v. Leathern, 1901 ACC 495: 15. Even after answering the issue No. 1 in the above manner, the arguments advanced by the learned Counsel for the parties have persuaded me to deal with the Issue No. 2 as well. Throughout the writ petition, there is no whisper of any procedural irregularity in conducting the enquiry. I have gone through the materials on record and do not find any infirmity in conducting the enquiry. If that be so the findings arrived by the authorities namely the enquiry officer, the disciplinary authority and the appellate authority cannot be tested in the touchstone of the principles involved in dealing with an appeal. The Writ Court will not sit on appeal over the findings recorded by the said authority to substitute its own finding. As regards the plea of non-applicability of the particular regulation in support of which the learned Counsel for the Petitioner placed reliance on the decisions in Bhabesh Kumar Pal and Dhirendra Kumar Saha (supra) is of no help to the case of the Petitioner. 16. The Petitioner was charged not only for remaining absent from roll call etc. but was also charged for overstaying station leave and non-compliance of the order of the superior authority for reporting to the police hospital. Even if the argument advanced that the Petitioner could not have been forced to attend the roll-call etc. during the period of suspension, the other charge relating to overstaying the leave and non-compliance of the order of the superior authority to report to the police hospital having been established against the Petitioner, there is nothing wrong in the impugned orders. 17. The Petitioner, who belonged to the disciplined force, could not have defied the lawful orders passed by superior authority. The Petitioner has not denied this aspect of the matter. 17. The Petitioner, who belonged to the disciplined force, could not have defied the lawful orders passed by superior authority. The Petitioner has not denied this aspect of the matter. Admission of fact, amounts to admission of guilt. For such unauthorised absence of the members of the disciplined force, the Apex Court has upheld the orders of removal from service. In this connection I may gainfully refer to the decisions as reported in Channabasappa Basappa Happali v. State of Mysore AIR 1972 SC 32 and Mithilesh Singh v. Union of India and other, (2003) 3 SCC 309 . The later decision of the Apex Court is in respect of an appeal preferred by the Petitioner against the Division Bench judgment of this Court reported in Union of India v. Mithilesh Singh, 2000 (3) GLT 62 by which the order of removal passed against the Petitioner for remaining un-authorisedly absent from duty was upheld setting aside the judgment and order passed by the learned Single Judge directing the Respondents to impose any other penalty other than dismissal, removal and compulsory retirement. 18. In view of the above, both the issues are answered against the Petitioner and in favour of the Respondents. Consequently, the writ petition merits dismissal, which I accordingly do. 19. Writ petition is dismissed, leaving the parties to bear their own costs. Petition dismissed.