Abdul Salaam v. Rajasthan State Roadways Transport Corporation
2015-10-05
AJIT SINGH, ANUPINDER SINGH GREWAL
body2015
DigiLaw.ai
Hon'ble GREWAL, J.—This intra-court appeal is directed against the order dated 31.03.2015 passed by the Single Bench whereby the writ petition preferred by the petitioner challenging the order dated 12.03.2008 terminating his services, was dismissed. 2. The appellant on being appointed as Driver with the respondent vide order dated 24.03.1994, joined on 02.04.1994. The services of the appellant were terminated vide order dated 12.3.2008. Besides registration of a criminal case against him, he had been penalised on account of misconduct on as many as 39 occasions. The appellant was, however, acquitted in the criminal case wherein he was tried for charges under Sec. 8/21 of the NDPS Act. 3. Learned counsel for the appellant has contended that the services of the appellant had been terminated on account of his involvement in a criminal case and, therefore, after his acquittal therein he should have been reinstated in service. He has further contended that the delay in approaching the court was on account of the fact that he had been arrested in the criminal case and hence he was not in a position to file the writ petition. 4. It is trite that the exercise of writ jurisdiction is equitable and discretionary in nature and the courts have to keep in mind the lackadaisical approach of the petitioners especially those who sleep over their rights and do not take any steps in prompt redressal of their grievance which ordinarily would not entitle them to avail this extraordinary constitutional remedy. It may, however, be justifiable for the courts to entertain petitions even if there is an inordinate delay in circumstances where the cause of the petitioner is genuine and he does not stand to gain from the delay. Reference may be made to the judgment of the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and others vs. T.T. Murali Babu- (2014) 4 SCC 108 , wherein while relying upon the earlier judgments of the Hon'ble Supreme Court, it has been held as under: “13. First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service- AIR 1969 SC 329 , the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co.
First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service- AIR 1969 SC 329 , the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. vs. Hurd- (1874) LR 5 PC 221, which is as follows: - (Balwant Regular Motor Service Case- AIR 1969 SC 329 , pp. 335-36, para 11) 11. .... 'Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.' (Lind-say Petroleum Co. vs. Hurd, (1874) LR 5 PC 221, PC pp.239-40). 14. In State of Maharashtra vs. Digambar- (1995) 4 SCC 683 , while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that: (SCC p. 692, para 19) '19. Power 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.
Power 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 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 unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. 15. In State of M.P. vs. Nandlal Jaiswal- (1986) 4 SCC 566 , the Court observed that: (SCC p. 594, para 24) '24. .... it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that : (Nandlal Jaiswal case, SCC p. 594, para 24) '24. ..... If there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction.' Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice. 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity.
Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. 17. In the case at hand, though there has been four years’ delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others’ ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.” 5. The appellant challenged the order dated 12.03.2008 terminating his services by filing the writ petition in the year 2015. This delay of 7 years in preferring the writ petition is sought to be explained by the learned counsel for the appellant by submitting that the appellant had been arrested in the criminal case and hence he could not prefer the writ petition. However, there is no material in support of this submission as to when the appellant had been arrested which had prevented him from filing the writ petition.
However, there is no material in support of this submission as to when the appellant had been arrested which had prevented him from filing the writ petition. The appellant had also waited for a period of about two years in preferring the petition after he had been acquitted in the criminal case. Therefore, we are of the considered view that the petition was rightly dismissed by the Single Bench on account of delay and laches. 6. However, having heard the learned counsel for the parties, we proceed to examine the matter on merits as well. In so far as acquittal of the appellant in the criminal case is concerned, that by itself does not entitle him to reinstatement. The law on the subject is fairly well settled that the criminal case and departmental proceedings can continue simultaneously and mere acquittal in criminal case would not justify dropping of departmental proceedings as in departmental proceedings, the standard of proof is one of preponderance of probabilities while in a criminal case the allegations have to be proved beyond reasonable doubt. It would also depend entirely on the facts of each case and in case the evidence and charges are identical in both the proceedings, namely, the departmental enquiry and the criminal case and the criminal court while acquitting the accused holds that no case is made out, it would be unjustified to proceed departmentally. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the case of Captain M. Paul Antony vs. Bharat Gold Mines Ltd. & another- (1999) 3 SCC 679 wherein criminal case and departmental proceedings were based on identical facts. They were based on raid conducted at the residence of the appellant who was a Security Officer in the respondent company and sponge gold ball along with 'gold bearing sand' were recovered from his residence. The same witnesses including the police officers who conducted the raid and the witnesses of recovery in the criminal case were also the only witnesses examined by the inquiry officer in the departmental proceedings. The inquiry officer while relying upon their evidence had held the appellant to be guilty of the charges. The criminal court had also examined the same witnesses and while acquitting the appellant, it had held that neither any search was conducted nor any recovery was made from the appellant's residence.
The inquiry officer while relying upon their evidence had held the appellant to be guilty of the charges. The criminal court had also examined the same witnesses and while acquitting the appellant, it had held that neither any search was conducted nor any recovery was made from the appellant's residence. It was held by the Hon'ble Supreme Court that as the appellant was acquitted by judicial pronouncement that the raid and recovery were not proved, the exparte departmental proceedings are also liable to be quashed. It was held as under: “35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case.” Similarly in the case of G.M. Tank vs. State of Gujarat- (2006) 5 SCC 446 , wherein the appellant was charged with the offence of acquisition of assets disproportionate to his known sources of income and the evidence and witnesses in the criminal case were the same as in the departmental proceedings, the criminal court acquitted the appellant after recording a finding that the charge had not been proved. It was held by the Hon'ble Supreme Court that as the judicial pronouncement had been made after a regular trial, it would be unjustified and unfair to allow the finding recorded against him in the departmental proceedings, to stand. It was held as under: “31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 7.
We, therefore, hold that the appeal filed by the appellant deserves to be allowed.” 7. However, in the instant case, the appellant cannot derive any benefit from his acquittal in the criminal case which pertained to charges under the NDPS Act as it was not the only factor which had led to the termination of his services. Aside of this, the conduct of the appellant while in service was unsatisfactory and he had been penalised on 39 occasions for misconduct which included over utilization of diesel, causing damage to the tyres as well as being absent from duty. The details of punishment imposed upon the appellant during his service career are reproduced hereunder for ready reference. Ø- la- vkjksi i=kad laf{kIr fooj.k fn;k x;k n.M 1- 7554@31-10-94 vuqifLFkr psrkouh 2- 903-21-02-95 Vk;j {kfr 2000@& n.M 3- 3790@25-07-95 Vuq 2976@& n.M 4- 4490@30-08-95 ysV izLFkku@vuq- ,d vLFkkbZ 5- 5053@28-9-95 62 yh- M+hty vf/kd [kir 480@& n.M 6- 6138@30-11-95 536 fdeh-fu- 2680@& n.M+ 7- 6601@30-12-95 Vk;j {kfr 3500@& n.M+ 8- 3991@24-5-96 okgu ysV iz- 200@& n.M 9- 4068@28-5-96 492 fdeh-fu 2460@& n.M 10 5029@20-6-96 284 fdeh-fu 1420@& n.M 11- 5449@05-7-96 344 fdeh- fu- 1720@& n.M 12- 6040@30-7-96 9 ;k=h fo-fV- 2000@& n.M 13- 9816@02-12-96 280 fdeh-fu- 1400@& n.M 14- 9817@02-12-96 690 fdeh- fu- 3450@& n.M 15- 9818@02-12-96 ysV izLFkku 200@& n.M 16- 10065@12-12-96 426 fdeh-fu- 2180@& n.M 17- 294@13-01-97 550 fdeh-fu- 2750@& n.M 18- 306@13-1-97 Vk;j {kfrxzLr 4000@& n.M 19- 648@21-1-97 147 yh-Mhty v-[kir 1302@& n.M 20- 2042@6-3-97 208 fdeh-fu- 1040@& n.M 21- 3341@30-4-97 vuqifLFkr 200@& n.M 21- 3341@30-4-97 vuqifLFkr 200@& n.M 22- 2752@18-4-98 416 fdeh-fu- 2080@& n.M 23- 2980@24-4-98 vuqifLFkr psrkouh 24- 3169@5-5-98 220 fdeh-fu 1100@& n.M 25- 4075@10-6-98 580 fdeh-fu- 2900@& n.M 26- 6360@9-9-98 ;k=h fo-fV- 8000@& n.M fu-os-tIr 27- 363@18-1-99 2 ;k=h fo-fV- 2000@& n.M 28- -------- ----------- psrkouh 29- 4548@26-7-99 2 ;k=h fo-fV- 2000@& n.M fu-os-TkIr 30- 4556@26-7-99 Vk;j {kfrxzLr 850@& n.M 31- 6878@26-10-99 vuqifLFkr psrkouh 32- 7543@1-12-99 Vk;j {kfrxzLr 280@& n.M 33- 1195@26-2-2000 3 ;k=h fo-fV- 3000@& n.M fu-os-tIr 34- 1923@4-4--2000 2 ;k=h fo-fV- 2000@& 35- 2222@21-4-2000 vuqifLFkr 2660@& n.M+ fu-os-tIr 36- 6701@27-11-2000 de vk; v- 450@& 37- 6702@27-11-2000 216 yh-Mhty 10761@& 38- 4483@2-7-12 4 ;k=h fo-fV- 4000@& n.M fu-os-tIr 39- 4669@5-8-2004 21-2-2004 ls y-vuq- fopkjk/khu 8.
It is, thus, patent that even if we assume that one of the grounds for his termination, namely his involvement in a criminal case may not hold good any longer, we cannot lose sight of the fact that the reinstatement of a driver whose conduct had been unsatisfactory would not be in public interest as it may endanger the lives of the passengers. 9. Therefore, we do not find any infirmity in the order of the Single Bench which would warrant any interference in this appeal. In the result, the appeal is dismissed.