Tulsi Sao, son of late Sukar Sao v. State of Jharkhand
2018-07-13
AMITAV K.GUPTA, D.N.PATEL
body2018
DigiLaw.ai
ORDER : D.N. Patel, J. 1. When the case is called out, nobody appears for the appellant. 2. We have heard the State counsel at length who has taken this Court to various annexures and facts of this case and it is submitted by the counsel for the respondents-State that this appellant was working as a Warder and he committed grossest misconduct to the effect he was given the custody of an under-trial prisoner who has run away. It is further submitted by the counsel for the respondents-State that the punishment was awarded on 28th August, 1995 which is much earlier in point of time and the punishment awarded was reduction to his initial pay scale with a further condition that the delinquent appellant will not get the benefit of promotion for five years. 3. It is further submitted by the counsel for the respondents-State that this order was never under challenge for more than 1½ decade by this appellant. Thus, for several years, this order was accepted by this appellant. 4. This appellant challenged the order of punishment dated 28th August, 1995 in the writ petition being W.P. (S) No.7474 of 2013 and there is a gross delay in preferring the writ petition. This aspect of the matter has been properly appreciated by the learned Single Judge. 5. It is further submitted by the counsel for the respondents-State that earlier also one writ petition being W.P. (S) No.6693 of 2010 was preferred by this appellant challenging the punishment, but, the said writ petition was withdrawn by this appellant. This aspect of the matter has also been taken note of by the learned Single Judge while dismissing the writ petition preferred by this appellant. 6. It is further submitted by the counsel for the respondents-State that there were other police personnel who were also punished. They preferred writ petitions in the year 2003 and they got some favourable orders by reduction in the punishment and therefore, after 18 long years, this appellant has preferred a writ petition which is not tenable at law and this aspect of the matter has been properly appreciated by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court. 7.
7. Having heard learned counsel for the respondents-State and looking to the facts and circumstances of the case, it appears this appellant was given the custody of an under-trial prisoner who has run away. The under-trial prisoner was facing the trial of murder and other offence of the Indian Penal Code. 8. For this grossest misconduct, this appellant was punished vide order dated 28th August, 1995. The punishment was reduction in the pay scale of this appellant and he was reduced to his initial pay scale with a further condition that this appellant will not get benefit of promotion for five years. 9. It appears that this punishment was never under challenge for 18 long years and in the year 2013, the writ petition was preferred being W.P. (S) No.7474 of 2013. 10. It has been held by Hon'ble The Supreme Court in the case of Rup Diamonds v. Union of India reported in (1989) 2 SCC 356 , at paragraphs 8 and 9 as under:- “8. Apart altogether from the merits of the grounds for rejection on which it cannot be said that the mere rejection of the special leave petitions in the cases of M/s Ripal Kumar & Co., and M/s H. Patel & Co., could, by itself, be construed as the imprematur of this Court on the correctness of the decisions sought to be appealed against — there is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else’s case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. From the orders in Ripal Kumar & Co. case and H. Patel & Co.
There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. From the orders in Ripal Kumar & Co. case and H. Patel & Co. case it is seen that in the former case the application for revalidation and endorsement was made on 12-3-1984 within four months of the date of the Redemption Certificate dated 16-11-1983 and in the latter case the application for revalidation was filed on 20-6-1984 in about three months from the Redemption Certificate dated 9-3-1984. 9. On a consideration of the matter we think that, apart altogether from the merits of the other grounds for rejection, the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ petition before this Court should, by themselves, persuade us to decline to interfere.” (Emphasis supplied) 11. It has also been held by Hon'ble The Supreme Court in the case of U.P. Jal Nigam v. Jaswant Singh reported in (2006) 11 SCC 464 at paragraphs 6 and 13 as under:- “6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30-6-2005 and 31-7-2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not? 13.
They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not? 13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” (Emphasis supplied) 12. It has further been held by Hon'ble The Supreme Court in the case of State of U.P. v. Arvind Kumar Srivastava reported in (2015) 1 SCC 347 at paragraph 22 as under:- “22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit.
The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under. 22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well-recognised exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. 22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India).
With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma v. Union of India). On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.” (Emphasis supplied) 13. Law helps those who are vigilant and not who are dormant. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition and we see no reason to take any other view than what is taken by the learned Single Judge. 14. Moreover, it further appears from the facts that earlier also a writ petition was preferred being W.P. (S) No.6693 of 2010 challenging the order of punishment, but, the same was withdrawn by this appellant. 15. It further appears from the facts of the case that other police personnel were also punished and they preferred writ petitions in the year 2003 and they got some relief in the year 2003, but, that does not mean that the writ petition of this appellant can be entertained after long 18 years. This aspect of the matter has been properly appreciated by the learned Single Judge. We are in full agreement with the reasons given by the learned Single Judge in W.P. (S) No.7474 of 2013 vide judgment and order dated 1st December, 2014. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed, with a cost of Rs.10000/-(Rupees Ten Thousand). This amount will be deposited by this appellant before the 'Advocates' Association Welfare and Development Fund, Jharkhand High Court, Ranchi', within eight weeks from today. 16. Registry is directed to send a copy of this order to the President and the Secretary of the Advocates' Association, Jharkhand High Court, Ranchi.