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2012 DIGILAW 601 (JK)

State of J&K and Ors. v. Latif Ahmad Ganai

2012-09-25

M.M.KUMAR, MOHAMMAD YAQOOB MIR

body2012
M.M. Kumar, CJ.— 1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 24.10.2011 rendered by the learned Single Judge of this Court in SWP No. 859/2009 holding that the order of discharge was stigmatic which required the Senior Superintendent of Police to hold a regular departmental enquiry under Rule 359 of the Jammu and Kashmir Police Rules, 1960 (for brevity 'the Police Rules ) which may allow him to explain his absence from duty. The learned Single Judge has also set aside the order of discharge on the ground that the Senior Superintendent of Police had failed to apply his mind because he has invoked power from non-existing provision namely, Article 126(B) Jammu and Kashmir Civil Service Rules read with Article 187 of the Jammu and Kashmir Police Manual. According to the learned Single Judge, there is no such provision and Article 126 has nothing to do with the discharge of Police Constable. Likewise, there is no Article 187. The order of discharge has been condemned being mechanical, casual and cursory. Accordingly, order dated 27.04.2001 discharging the writ petitioner-respondent from service was set aside and the writ petitioner has been allowed to join duty giving liberty to the appellant to take action against him as per law either by initiating enquiry or by initiating any other action. Facts are not in dispute. The writ petitioner-respondent was approved for appointment as Constable during on spot recruitment drive by the Director General of Police-respondent No. 2 during his visit to the city of Srinagar on 03.06.2000. Accordingly, he was appointed by the Senior Superintendent of Police vide order No. 544 of 2000 dated 13.06.2000 as Constable. He was allotted Regimental No. 2072/S. In the order of appointment, it was clarified that he was to remain on probation for a period of three years. During the course of employment, the writ petitioner-respondent was nominated to undergo basic induction training course (BRTF) at STC Talwara with effect from 09.02.2001. He absented with effect from 12.03.2001. As he did not report back to the Principal STC, Talwara, the writ petitioner-respondent was repatriated to the police lines vide order dated 31.03.2001. Despite his order of repatriation, he did not report for duties till 27.04.2001. He absented with effect from 12.03.2001. As he did not report back to the Principal STC, Talwara, the writ petitioner-respondent was repatriated to the police lines vide order dated 31.03.2001. Despite his order of repatriation, he did not report for duties till 27.04.2001. Having awaited for the writ petitioner- respondent to join, the Senior Superintendent of Police appellant No. 4 on 27.04.2001 passed an order with the observation that the writ petitioner-respondent was not likely to prove as a good police official and discharged him from service with effect from the date he absented himself from STC Talwara i.e. 12.03.2001. 2. The order of discharge was challenged through the medium of SWP No. 859/2009 relatable to this appeal before the writ Court on various grounds including that the discharge order was passed by an Authority subordinate to the Appointing Authority, the order is stigmatic, no hearing was provided, the order is violative of principles of natural justice, the order reflects non-application of mind, the Senior Superintendent of Police had misused his power etc. 3. In the detailed reply filed by the appellant, the averments made by the writ petitioner-respondent were controverted. It was highlighted that the writ petition was hit by delay and laches. Moreover, the writ petitioner- respondent was put on probation for a period of three years and during the very first year he absented by deserting the Force without permission and as such cannot prove himself to be a good police official. It was in the aforesaid factual background that the Senior Superintendent of Police invoked power under Rule 187 of the Police Rules and issued a discharge order being his Appointing Authority. It is claimed that the order is simply an order of discharge not that of termination, dismissal or removal (Anenxure-2). The writ petition having been allowed and the order of discharge dated 27.04.2001 having been set aside by the learned Single Judge, the appellant feeling aggrieved has filed the instant appeal. 4. Mr. Magray, learned counsel for the appellant has vehemently argued that once the order of discharge has been passed on 27.04.2001, it was duly accepted by the writ petitioner-respondent for all these years till 2009. Therefore, it could not be challenged by filing a writ petition in the year 2009 after a period of eight years. 4. Mr. Magray, learned counsel for the appellant has vehemently argued that once the order of discharge has been passed on 27.04.2001, it was duly accepted by the writ petitioner-respondent for all these years till 2009. Therefore, it could not be challenged by filing a writ petition in the year 2009 after a period of eight years. According to the learned counsel, there is no valid and persuasive explanation for the delay and a Government employee working in a disciplinary force like police would be fully aware of such an order by virtue of his daily duty. Accordingly, the unexplained and long delay would constitute a valid basis to dismiss the writ petition. In support of his submission, Mr. Margray has placed reliance on two judgments of this Court rendered in the cases of State of J&K & ors. v. Mohammad Ayoub Sofi (LPA No. 128 of 2006 decided on 08.06.2011) and State of J&K & ors v. Ghulam Nabi Bhat and others (LPA No. 218, 219 of 2005 and 109 of 2006 decided on 08.10.2007) and argued that the rights of the parties have crystallized after lapse of three years. The learned Single Judge should have taken notice of this preliminary objection and dismiss the writ petition. 5. Mr. Magray has further argued that in the order of discharge there is nothing stigmatic which may require holding of a regular departmental enquiry. According to the learned counsel, the writ petitioner-respondent was unlikely to become an efficient police official on account of lack of devotion to duty as he firstly absented from the training and then after his repatriation to the police lines he failed to report for duty. The aforesaid event had happened within a year of his appointment whereas the period of probation is three years. The writ petitioner-respondent was yet to acquire any right to the post as he was to be confirmed on the completion of a period of three years, if found otherwise suitable. It has been insisted that in such like situation no enquiry is required to be held. In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of State of J&K & ors. v. Prob. Constable Bashir Ahmad 2008 (2) SLJ 797. 6. Mr. It has been insisted that in such like situation no enquiry is required to be held. In support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of State of J&K & ors. v. Prob. Constable Bashir Ahmad 2008 (2) SLJ 797. 6. Mr. Magray has also advanced other arguments but for the views which we are taking, we refrain from noticing any other argument. 7. Mr. F.A. Bhat, learned counsel for the writ petitioner-respondent has vehemently argued that the record of the writ Court would show that the writ Court was conscious of the fact of delay. In that regard, he has drawn our attention to order dated 16.06.2009 passed by the writ Court which says that the notice to the respondents was issued for a limited purpose of ascertaining as to whether petition was maintainable on account of the delay in challenging the order of discharge. According to Mr. Bhat, the writ petition was later admitted to hearing which meant that the delay was condoned. Despite the fact that there is no detailed discussion in the judgment impugned in this appeal. Mr. Bhat has argued that once a writ petition has been admitted in the year 2010 then the delay is deemed to be condoned. In support of his submission, learned counsel has placed reliance on para 23 of a Division Bench judgment of this Court rendered in the case of Bashir Ahmad Bhat v. State of J&K & ors. 2005 (1) SLJ 1. 8. After hearing learned counsel for the parties and perusal of the paper book alongwith the record, we find that the arguments raised by Mr. Magray have merit and deserves to be accepted. The law concerning delay and laches has been settled by catena of judgments which is to the effect that that the maximum period for filing a writ petition cannot be more than the period prescribed for filing a civil suit. In case of State of Madhya Pradesh and anr v. Bhailal Bhai, AIR 1964 SC 1006 a 5-Judge Constitution Bench of Hon'ble the Supreme Court has authoritatively held that the maximum period fixed for filing a suit in a Civil Court must also be read as a reasonable period for filing the writ petition. In case of State of Madhya Pradesh and anr v. Bhailal Bhai, AIR 1964 SC 1006 a 5-Judge Constitution Bench of Hon'ble the Supreme Court has authoritatively held that the maximum period fixed for filing a suit in a Civil Court must also be read as a reasonable period for filing the writ petition. The aforesaid view is discernible from a bare perusal of para No. 21, which deserves to be set out in extenso:- Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. (Emphasis added) 9. The aforesaid view has been followed in a large number of judgments, including State of Jharkhand and ors v. K.N. Farms and Industries Pvt. Ltd., (2012) 5 SCC 297 , R & M Trust v. Koramangala Residents Vigilance Group and ors (2005) 3 SCC 91 and Leelawanti and ors v. State of Haryana and ors., (2012) 1 SCC 66 . 10. It is further appropriate to mention that a 7-Judge Bench of Hon'ble the Supreme Court in case of S.S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 has clarified another aspect of law concerning delay and laches namely filing of memorial or representation are not to be taken into consideration in the matter of reckoning the period of limitation. In other words, the non-statutory representation would not extend the period of limitation. 11. The aforesaid view concerning principles of delay and laches has been consistently followed and applied by a Division Bench of this Court in LPA no 130/2010 decided on 17.07.2012 (of which one of us M.M. Kumar, Chief Justice is a member). Likewise, similar view has been taken in LPA No. 102/2006 decided on 16.07.2012. 11. The aforesaid view concerning principles of delay and laches has been consistently followed and applied by a Division Bench of this Court in LPA no 130/2010 decided on 17.07.2012 (of which one of us M.M. Kumar, Chief Justice is a member). Likewise, similar view has been taken in LPA No. 102/2006 decided on 16.07.2012. We also find force in the argument raised by Mr. Margray based on the judgments rendered in the cases of Mohammad Ayoub Sofi (supra) and Ghulam Nabi Bhat (supra). 12. The argument of Mr. Bhat, learned counsel for the writ petitioner based on paragraph 23 of a Division Bench judgment of this Court that the admission of the writ petition would automatically result in condoning the delay, has failed to impress us because a closer analysis of the view expressed in para 23 of that case would show that a tentative seniority list was issued in the year 1992 showing the writ petitioner-respondent junior to some persons whereas he wanted to claim that he was senior to them. Eventually, the final seniority list was issued in the year 1990 and the writ petition was also filed in the same year. The Division Bench took a view that the final seniority list which continues to reflect the writ petitioner- respondent junior to certain person provided him a fresh cause of action and, therefore, the writ petition was not considered as belated causing an impediment to decide the case on merit. The observations that delay and laches should be considered before admission of the writ petition are intact 'passing remarks' which would not constitute ratio decedent of the judgment. Therefore, no benefit of para 23 of the judgment could be available to the writ petitioner-respondent. 13. In view of the fact that the appeal is being decided on the question of delay and laches, we do not want to express any opinion on the issue raised by Mr. Magray, learned senior Additional Advocate General for the appellant. As a sequel to the above discussion, the appeal succeeds and judgment and order dated 24.10.2011 rendered by the learned Single Judge of this Court is hereby set aside. The order of discharge is upheld as the same cannot be adjudicated upon after 8 years. The writ petition is dismissed as not maintainable being time barred.