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2011 DIGILAW 662 (JK)

State & Ors. v. Ghulam Mohammad Wani

2011-11-28

MOHAMMAD YAQOOB MIR, VIRENDER SINGH

body2011
Virender Singh. J:— 1. Through the instant Letters Patent Appeal, the State has questioned the judgment/order of learned Single Judge dated 23rd of March, 2005 rendered in SWP No. 1091 of 1995, whereby quashing the order No. 294 of 1990 dated 24.05.1990, terminating the services of the respondent-writ petitioner (for short 'petitioner') on the ground of unauthorized absence from District Police Lines, Anantnag with effect from 06.12.1989. 2. The petitioner was selected as Constable in year 1987 and allotted number 773/A. He was deputed in District Police Lines, Anantnag when on 06.12.1989, he absented himself. When he did not turn up for a considerable period, he was served with notice by appellant No. 3 asking him to resume to duties upto 07.05.1990, and his failure to report would call for his discharge from service. Despite that he did not resume to his duties upto 24.05.1990 on which date appellate No. 3 passed the order of removing him from the service. The said order reads thus: "Constable Ghulam Mohd. No. 773/A absent from District Police Lines Anantnag on 06.12.1989. He was served with notice regarding resumption of duty by the undersigned vide No. 4354 dated 03.05.1990 asking him to resume duties upon 07.05.1990 failing which he shall be discharged from service. The Constable has not resumed his duties in DPL till date which shows that the said Constable is no more interested to serve the department. In the absence of Constable it is also not possible to hold a departmental enquiry into his conduct nor has the constable putforth any tenable explanation for his long absence which could be taken into consideration before issuing this order. Therefore, keeping in view the above facts Constable Gh. Mohd. 773/A is removed from service with effect from the date he absented himself from District Police Lines Anantnag i.e. 06.12.1989. Sd/ (Dr. A. K. Bhan) IPS Supdtt, of Police, Anantnag." 3. The petitioner challenged the aforesaid order of removal from service through the medium of SWP No. 1091 of 1995 mainly on the ground that his services were terminated without holding a regular enquiry as envisaged under the rules governing the field. Sd/ (Dr. A. K. Bhan) IPS Supdtt, of Police, Anantnag." 3. The petitioner challenged the aforesaid order of removal from service through the medium of SWP No. 1091 of 1995 mainly on the ground that his services were terminated without holding a regular enquiry as envisaged under the rules governing the field. The writ petition came to be allowed along with bunch of other writ petitions of the similar nature and the order challenged by the petitioner was quashed by the learned Single Judge, holding that it has been passed without following the due procedure inasmuch as no enquiry was held. It was further held by the learned Single Judge that in case the authority concerned had felt that it was not practicable to hold an enquiry due to the absence, non-cooperation or hostile attitude of the petitioner, they should have exercised a power under rule 359(ii)(2)(b) of J&K Police Manual (for short 'Police Rules'), which empowers the authority to dispense with the enquiry on the ground of impracticability. The State being aggrieved of the said judgment is not before us through the appeal on hand. 4. We have heard Mr. Magray, Learned Sr. Additional Advocate General and Mr. Tabasum, learned counsel for the petitioner. We have also gone through the writ court record minutely. 5. At the very outset, Mr. Magray contended that in the counter filed by the State to the main petition, a specific preliminary objection was taken by the State that the writ petition is infested with unexplained delay and laches inasmuch as the order of terminating the services of the petitioner was passed on 24.05.1990 and that the writ petition was filed by him in August, 1995. This long period of more than five years has not been explained by the petitioner and during this period, a third party interest had also developed as the post against which the petitioner was working stood filed up and another person was working substantively. Despite this objection being raised by the State, the learned Single Judge has not dealt with this material aspect at all and, therefore, the petition filed by the petitioner merits dismissal on this ground only. 6. In support of his contentions, Mr. Despite this objection being raised by the State, the learned Single Judge has not dealt with this material aspect at all and, therefore, the petition filed by the petitioner merits dismissal on this ground only. 6. In support of his contentions, Mr. Magray has relied upon the Division Bench decision of this court in LPA No. 218 of 2005 (connected with other appeals) decided on 08.10.007 and LPA No. 128 of 2006 decided on 08.06.2011. 7. Mr. Magray then contended that the learned Single Judge has given complete narration of Rule 359 of J&K Police Rules, which prescribes the mode and method for holding an enquiry when a misconduct in terms of Rule 334 of the Police Rules is being enquired into and while scanning the impugned order on the touch stone of the Police Manual, the learned Single Judge has held that the appellants have not followed this rule while issuing termination order. According to learned counsel, the finding so returned is erroneous for the reason that holding of enquiry before terminating an employee of police department has not universal application. It is mandatory only when the delinquent police official against whom the enquiry is to be conducted cooperates and makes himself available for such enquiry. He further submitted that no doubt Section 126 of the Constitution of J&K State and Rule 359 of J&K Police Manual provide that when an employee working in the Police department remains absent from his duties with leave or after the end of the leave, he, of course, is entitled to an enquiry before any adverse order is passed, but the authority concerned is empowered to dispense with the inquiry on the ground of impracticability. In the case at hand, the petitioner after absenting himself did not turn up for more than five months and despite notice also, he did not report for duties. In that eventuality, appellant No. 3 passed the order of removing him from service noticing that in the absence of constable, it is not possible to hold a departmental enquiry into his conduct. This fact is mentioned in the order itself. Therefore, the finding returned by the learned Single Judge on this aspect is contrary to the record and it appears that a general observation has been made while deciding a bunch of writ petitions filed by the police officials. 8. Mr. This fact is mentioned in the order itself. Therefore, the finding returned by the learned Single Judge on this aspect is contrary to the record and it appears that a general observation has been made while deciding a bunch of writ petitions filed by the police officials. 8. Mr. Magray, thus, contended that the petitioner has no case on any count, as such, the appeal on hand deserves to be allowed. 9. Per contra, Mr. Tabasum, learned counsel for the petitioner, while supporting the impugned judgment submitted that in the month of January, 1995 only, the petitioner came to know that the appellants had terminated his services without communicating any order of termination. Thereafter he had been persistently requesting the respondents to revoke the order of termination and allow him to resume to his duties, but to no effect. Ultimately he was constrained to knock at the door of writ court in 1995. Therefore, in the present set of circumstances, there was no delay from the side of the petitioner. 10. Mr. Tabasum further contended that the order of termination of the service of the petitioner has been passed without following the proper procedure and rules. The action of the appellants is violative in principles of natural justice. The order of dispensing with the enquiry has been passed simultaneously with the order of removal and this on the face of it, speaks volumes of the fact that it was just an eyewash. On this count also, a grave miscarriage of justice has been caused to the petitioner. In face of all the vital flaws crept in the present case, the order of removal questioned by the petitioner has been rightly quashed by the learned trial court, as such, the present appeal deserves to be dismissed, Mr. Tabasum so contended. 11. On a specific query put to Mr. Tabasum, whether any representation was moved by the petitioner before the competent authority after the date he absented from duty i.e. 06.12.1989 till the filing of the main writ petition, he submitted that there is no such document available on the writ court record in this regard. Tabasum so contended. 11. On a specific query put to Mr. Tabasum, whether any representation was moved by the petitioner before the competent authority after the date he absented from duty i.e. 06.12.1989 till the filing of the main writ petition, he submitted that there is no such document available on the writ court record in this regard. On another specific query put to the learned counsel, whether any plausible explanation was tendered in writing by the petitioner the before authority concerned for not resuming to duty w.e.f. 06.12.1989 till the passing of the order of termination of services in May 1990, he finds himself in difficult position to respond to it except stating that had the petitioner been afforded an opportunity by holding a regular enquiry, he would have made his stance clear before the Enquiry Officer. 12. In our considered view, the main writ petition suffers from the vice of delay and laches and on this sole ground only, it merits dismissal. The petitioner was from a disciplined force and did choose to raise a little finger against the order of termination of his services by challenging the same before the appropriate forum at the earliest. It is not appealable to a judicial conscience, which is an embodiment of reasoning, that the petitioner, who absented himself on 06.12.1989 and remained absent for long more than five years did not come forward to tender any explanation for his absence. On the other hand, he should have rather informed the competent authority, the moment he absented himself, the valid reasons of his being absent from duty. The petitioner did not bother to send any intimation to the concerned till the date of removal was slapped upon him. He just could not put the authority on hold. It does not lie in his mouth to say that he came to know of the order only in year 1995 and then questioned the same through the medium of the writ petition. In fact, the petitioner is caught by his own conduct and on this count alone, he does not deserve the relief as asked for. 13. Apex Court in case State of Maharashtra Vs. Digambar, 1995 (4) SCC 683 held that the writ petitions are liable to be dismissed when there is inordinate delay. In fact, the petitioner is caught by his own conduct and on this count alone, he does not deserve the relief as asked for. 13. Apex Court in case State of Maharashtra Vs. Digambar, 1995 (4) SCC 683 held that the writ petitions are liable to be dismissed when there is inordinate delay. It would be apt to reproduce the relevant portion of paras 14 and 19 of the judgment hereunder: ".......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 laches 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 laches 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 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 person's 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 un-blameworthy 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." 14. In case Sudhir Vishnu Panvalkar Vs. Bank of India, AIR 1997 SC 2249, the Hon’ble Supreme Court dismissed the writ petition, which was filed after a lapse of three years and six months after the termination order was passed. In another case titled Scooters India and Ors Vs. Vijai E.D. Eldered, 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. In another case titled Scooters India and Ors Vs. Vijai E.D. Eldered, 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 another case reported as State of Orissa Vs. Zlochan Navak, 2003 (10) SCC 678 . In case 2005(11) 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 and laches. In case Govt. of W. B. Vs. Tarun K. Roy, (2004) 1 SCC 347 it was held that the delay defeats equity and that delay and laches are the relevant factors in exercising equitable jurisdiction. In another judgment Ghulam Rasool Lone Vs. State of J&K 2009 AIR SCW 5260, the Apex Court has held that discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches. It is now well settled that who claims equity must enforce his claim within a reasonable time. 15. What we find in the judgment impugned herein, that despite there being a preliminary objection raised by the appellants with regard to the vital issue of delay and laches in filing the writ petition, the learned Single Judge quashed the order of dismissal slapped upon the petitioner without dealing with the said contention. Mr. Magray has rightly banked upon this flaw crept in the impugned judgment for setting aside the same and the judgments cited by him, in our view, squarely covers the present case. 16. Batch of appeals were dealt by Division Bench of this court in LPA No. 218 of 2005 (connected with other appeals) and while considering various decisions of the Hon’ble Supreme Court on delay and laches, the Bench ultimately allowed the appeal filed by the State. Those cases also related to certain police constables and they had approached the court by filing the writ petition after a delay of thee and a half years to ten years. Those cases also related to certain police constables and they had approached the court by filing the writ petition after a delay of thee and a half years to ten years. Following the ratio of the aforesaid judgment rendered by the Division Bench, in another LPA No. 128 of 2006 decided on 08.06.2011, the Division Bench allowed the State appeal and confirmed the order of removal from service solely on the ground of delay and laches on the part of the constable therein in filing the writ petition. 17. In our considered view, the case at hand is also a typical case, which is really hit by the doctrine of delay and laches, as such, writ petition deserved dismissal on this count only. 18. Since we are disturbing the impugned judgment, observing that the main writ petition merits dismissal on the sole ground of delay and laches for the reasons enumerated hereinabove and that material aspect has not been taken note of by the learned Single Judge, we do not want to detain ourselves further in delving deep into returning any finding on other aspect of the matter. 19. As an upshot of the aforesaid discussion, the net result is that the instant Letters Patent Appeal filed by the State is allowed, resultantly, the writ petition bearing SWP No. 1091 of 1995 filed by the petitioner (respondent herein) stands dismissed. CMP(s), if any, also stands disposed of accordingly. 20. No order as to costs.