Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 344 (JK)

Gh. Mustaffa Geelani v. State Of J. &K.

2009-07-17

MOHAMMAD YAQOOB MIR

body2009
1. Order bearing No.1729 of 1990 dated 12.12.1990 where-under petitioner (Constable) has been terminated from service, is sought to be quashed. 2. Petitioner admittedly has been appointed as Constable in the Police Department on 12.12.1979. In the month of April, 1990, petitioner was posted on guard duty at the residence of one Ghulam Mohammad Teli R/O Chota Bazar Srinagar. Son of said Ghulam Mohammad Teli was fired upon by the militants in his house. Petitioner in self defence in the shootout is stated to have retaliated and according to him the retaliation on his part became the cause of threatening by the militants to the petitioner. Sensing life threat, petitioner is said to have applied for transfer, same has not been granted, as a result thereof he has proceeded on leave with effect from 30.4.1990. according to the petitioner after availing leave, when he reported back to duty was not allowed to resume so continued to approach the respondents but finally on 6.11.1996 he claims to have been told by the respondent No.3 that his services have been terminated vide order impugned i.e. order No.1729 of 1990 dated 12.12.1990 in exercise of the powers vested under Article 126(2)(b) of the J&K Constitution. Aggrieved thereof instant writ petition has been filed on 7.12.1996. 3. Appearing counsel for the respondents contended that the writ petition is hit by latches so is liable to be dismissed on this sole ground. The order of termination impugned has been passed on 12.12.1990 and after a lapse of 6 years writ petition has been filed. Petitioner has not explained as to what prevented him from challenging the order of termination up to 7.12.1996 i.e. the date of presentation of the writ petition. 4. Buttressing the submission, learned counsel for the respondents added that even the contents of the petition are totally deficient i.e. the petitioner has not mentioned what was the period of leave sanctioned in his favour. Furthermore what steps in the form of any representation or any other step he has taken for a period of six years, when he did not receive the salary for a period of six years, was it possible for him to remain silent and then to wait for an occasion to file the petition. Filing of petition is an afterthought. In fact petitioner has deliberately absented. Filing of petition is an afterthought. In fact petitioner has deliberately absented. Now has turned around to claim that he had no knowledge about the passing of order of termination. While praying for dismissal of the petition on the count of latches, learned counsel placed reliance on the judgment passed in LPA Nos.218/2005, 219/2005 and 109/2006 dated 8.10.2007 captioned as State of J&K & Ors Vs. Ghulam Nabi Bhat, State of J&K & Ors. Vs. Gh. Mohammad Dar and State of J&K & Ors. Vs. Mohammad Majnoon, where a similar situation has been dealt with. 5. The contention raised vis-a-vis competence of the SSP (respondent No.3) for issuing the order of termination being untenable, so rightly has not been pressed because SSP is the appointing authority as is clear from Rule 172 of the J&K Police Rules, therefore, passing of order of termination under challenge is well within the competence of the appointing authority i.e. SSP. This contention is accordingly repelled. 6. Learned counsel appearing for the petitioner next contended that termination of services in absence of adherence to the rules is bad in the eye of law. In support of this submission learned counsel placed reliance on the judgment reported in 1995 S.L.J 212. 7. While meeting the contention of delay in filing the petition, learned counsel for the petitioner submits that the petition has been admitted on 23.12.1996, therefore, question of delay cannot stand in the way of the petitioner. 8. This submission is to be rejected because the order of admission is subject to the question of delay. It shall be quite relevant to reproduce order dated 23.12.1996:- "Mr. M. A. Qayoom. Admit. Issue notice. Admission of this petition shall be subject to exception of delay, if any taken by the respondents. Respondents shall file counter within three months. Rejoinder, if any, within one month thereafter. Process for hearing after four months." 9. The plain reading of the order is clear that the question of delay is open to be agitated by the respondents as has now rightly been agitated. 10. Judgment relied upon by the appearing counsel for the petitioner reported in AIR 1990 Patna 11 (Full Bench) is not of any help to the petitioner. The plain reading of the order is clear that the question of delay is open to be agitated by the respondents as has now rightly been agitated. 10. Judgment relied upon by the appearing counsel for the petitioner reported in AIR 1990 Patna 11 (Full Bench) is not of any help to the petitioner. In the reported judgment petition was admitted, case of the petitioner therein was found to be positively good based on which contention for rejection of petition on the count of delay was rejected. It is quite apt to quote para 18 of the judgment: - "In my view the writ petition having been admitted, and the case of the petitioner being "positively good" as it is squarely covered by the decision of the Supreme Court itself (Annexure 3) and the respondents being bound by that judgment ought to have given a notice to the petitioner. I accordingly overrule the second contention of the learned Addl. Advocate General also." 11. Every case has its own facts so law has to be applied in the same background. In the instant case petitioners deliberate slackness for over a prolonged period of six years coupled with deliberate absence from duty does not advance the cause of petitioner for terming his case to be good on merit. Furthermore in the reported case petition was admitted unconditionally whereas in the case in hand, as stated above, the admission was subject to the condition of delay, therefore, deliberate delay attributable to the petitioner cannot be overlooked. 12. The judgment reported in 1995 S.L.J. 212, though also relate to the termination of the Constable but in the said judgment facts were different, there was less delay, that too well explained. In the reported case petitioner admittedly was injured in cross firing and remained admitted in Bone & Joint Hospital, Srinagar, so could not attend his duties, had proceeded on medical leave after due information to the authorities concerned whereas in the instant case petitioner has deliberately remained absent for a period of six years i.e. up to the year 1996, so cannot claim benefit of the reported judgment which is based on peculiar facts. 13. Next learned counsel appearing for the petitioner placed reliance on the judgment reported in AIR 2001 SC 3471 and AIR 1996 SC 2121. The facts of the cases reported in the said judgments are altogether different. 13. Next learned counsel appearing for the petitioner placed reliance on the judgment reported in AIR 2001 SC 3471 and AIR 1996 SC 2121. The facts of the cases reported in the said judgments are altogether different. It is true that non-communication of the administrative orders render such orders as in-effective and non-existent as is the principle laid down in the reported judgments. In the case in hand position is somewhat different i.e. petitioner for a period of six years has slept, thereafter is claiming ignorance and non-communication of the order of termination which, for unexplained reasons, is not acceptable. Non communication of the order appears to have been projected so as to give cover to the negligent and deliberate slackness of the petitioner. Petitioner without getting salary for six years and without attending any duty cannot say that he had no knowledge about his termination though same could be accepted but only on existence of cogent reasons and circumstances which the petitioner has miserably failed to bring on fore except that he has obtained the attested copy of the order of termination from Dy.SP which also appears to be a calculated step otherwise same could be done earlier also. 14. In my opinion what is discernible from the records is that the petitioner has deliberately slept over the matter from 30.4.1990 till 7.12.1996. Petitioner cannot be permitted to cover up the calculated deliberate delay by simply stating that he had no knowledge about the passing of impugned order of termination. Petitioner has not been able to place any material on record to show that he had made any serious effort from 1990 till 1996 in pursuing his matter. Is it acceptable that the petitioner without any salary for six years would remain silent? He would have definitely agitated the matter. Least he should have sought the intervention of the superior officers. He has not even mentioned as to what was the period of leave sanctioned in his favour and on what date he had reported for duty but was not allowed to resume and by whom he was not allowed to resume. Simply to say that he has many a times approached the respondents so as to allow him to resume his duty is simply an assertion without any substance and support. 15. The judgment delivered in LPA Nos.218/2005, 219/2005 and 109/2006 is quite applicable to the present case. Simply to say that he has many a times approached the respondents so as to allow him to resume his duty is simply an assertion without any substance and support. 15. The judgment delivered in LPA Nos.218/2005, 219/2005 and 109/2006 is quite applicable to the present case. In the reported judgment on the question of latches reliance has been placed on various judgments. It shall be quite relevant to quote as to what has been held by the Honble Apex Court in case State of Maharashtra Vs. Digambar, 1995 (4) SCC 683:- "Thus in our view, persons seeking relief against the state under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable there-under unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the latches or undue delay on their part in approaching the court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as latches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the state." ... Powers of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a persons entitlement for relief from a High Court under Article 226 of the Constitution, be it against the state or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refused to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct." 16. In case Sudhir Vishnu Panvalkar Vs. Bank of India, AIR 1997 SC 2249, the Apex Court dismissed the writ petition which was filed after a lapse of three years and six months after the termination order was passed. 17. In another case titled Scooters India and ors. Vs. In case Sudhir Vishnu Panvalkar Vs. Bank of India, AIR 1997 SC 2249, the Apex Court dismissed the writ petition which was filed after a lapse of three years and six months after the termination order was passed. 17. In another case titled Scooters India and ors. Vs. Vijai E.D. Eldred, 1998 (6) SCC 549, the Apex Court has held that writ petition, which was filed six years after passing of the order of termination, was not maintainable. Same ratio has been laid by the Apex Court in cases reported as State of Orissa Vs. Lochan Nayak, 2003 (10)SCC 678 and Life Insurance Corporation of India Vs. Jyotsh Chandra Biswas, 2006 (6) SCC 562. 18. Again in 2005 (II) SCC 546, the Apex Court has held that writ petition filed after a gap of three years was not maintainable and dismissed the same on the ground of delay. 19. Unexplained and undue delay in filing the writ petition warrants its dismissal as hit by latches. The principle as has been laid down in the above referred judgment is that the petitioner unless fully satisfies that there were facts and circumstances justifying the delay in approaching the court for grant of discretionary relief, the petition is to be dismissed as hit by latches. 20. The indolent conduct of the petitioner in not pursuing the remedial measures for a long period of six years is totally unjustified. Slackness on his part disentitles him from claiming the relief of quashment of order of termination. 21. Record as produced by the respondents is indicative of the fact that no leave had been sanctioned in the year 1990 in favour of the petitioner, so the petitioner has deliberately absented. Now after a period of six years wants to resume his duties and to get all service benefits. When a person opts or chooses a path of absenteeism, that too for a prolonged period of six years, on the basis of latches disentitles himself from claiming relief sought. 22. The writ petition fails so is dismissed as hit by latches, along with connected CMPs. Record produced by learned counsel for the respondents shall be returned back to him.