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2019 DIGILAW 421 (JK)

Koshalya Devi v. State of J&K

2019-09-20

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. Through the medium of this petition, the petitioner, amongst other prayers, is seeking to quash Order No.87 of 1999 dated 28.01.1999 issued by Commandant, JKAP, XII Bn., respondent No.5 herein, whereby the petitioner was discharged from service with effect from 05.03.1998. 2. The facts, as projected in the petition, are that the petitioner was appointed as a Cook in the year 1987 in XII Bn., JKAP. Thereafter, vide Order No.58 of 1994 dated 22.01.1994, he was converted as Constable and after completion of training, he was posted in 12 Bn. Batmallu, Srinagar. It is averred that in the year 1998 the petitioner suffered from fits and mental tension due to stress and strain on duty and he went to his house at Kishtwar with the permission of his superiors. Thereafter, he remained under the treatment with effect from 05.03.1998 to 28.04.2004, and after recovering from illness, he reported his Unit in the month of May 2004, but was not allowed to join, rather he was informed that he has already been discharged from service vide Order No.87 of 1999 dated 28.01.1999. Hence, the present writ petition. 3. Learned senior counsel appearing for petitioner argued that the respondents while discharging the petitioner from services neither followed the provisions of Police Manual nor served any notice on the petitioner or afforded him an opportunity of hearing. She further argued that there was no delay on the part of petitioner in filing the present petition as the order impugned was never served upon him. She further argued that as and when the petitioner came to know about the issuance of order impugned, he challenged the same by filing the present petition. 4. Objections have been filed on behalf of respondents averring therein that the petitioner absented un-authorizedly from duty with effect from 05.03.1998. Petitioner was repeatedly notified to resume the duty, also through SHO Police Station Kishtwar, but he failed to resume his duties. Thereafter, he was placed under suspension and attendance notice was also published in Kashmir Times asking the petitioner to resume his duties. Since the petitioner did not turn up, as such ex-parte decision of discharging the petitioner was taken and the order of discharge, impugned herein, was also served upon the petitioner. 5. Thereafter, he was placed under suspension and attendance notice was also published in Kashmir Times asking the petitioner to resume his duties. Since the petitioner did not turn up, as such ex-parte decision of discharging the petitioner was taken and the order of discharge, impugned herein, was also served upon the petitioner. 5. Learned counsel appearing for respondents argued that the petition suffers from delay and laches as the order impugned came to be issued on 28.01.1999 and the present petition came to be filed in March 2007. 6. I have heard learned counsel appearing for the parties, perused the file as well as the original record produced by learned counsel for respondents. 7. Firstly, I deal with the issue of delay and laches in filing the present writ petition. Admittedly, a perusal of the original record reveals that there is no endorsement in the order impugned dated 28.01.1999 to the effect that the copy of order was actually sent to the petitioner; meaning thereby the impression goes that the order impugned was not served upon the petitioner when it came to be issued in January 1999. However, a perusal of the writ petition reveals that the petitioner came to know about the issuance of impugned order in the month of May 2004, relevant portion whereof is reproduced hereunder: “4) That the petitioner after recovering from illness, in the month of May, 2004 reported to his unit, but the petitioner was not allowed to join and he was informed that he has been discharged from service vide Order No.87of 1999 dated 28.01.1999 issued by the Commandant, JKAP, XII Bn. Jammu.” 8. Thus, the petitioner has himself admitted in the writ petition that the petitioner came to know about the issuance of impugned order in the month of May 2004. However, the writ petition came to be filed on 20.03.2007, i.e., two years and eight months after the petitioner got the knowledge of issuance of order impugned. The petitioner has not explained that what prevented him from approaching the Court for such a long period. Once the petitioner was aware of issuance of the order impugned in the month of May 2004, he cannot be allowed to approach the Court at-will after such a long delay without showing any reasonable cause. The acts of negligence and inaction on the part of petitioner itself do not constitute a reasonable cause. Once the petitioner was aware of issuance of the order impugned in the month of May 2004, he cannot be allowed to approach the Court at-will after such a long delay without showing any reasonable cause. The acts of negligence and inaction on the part of petitioner itself do not constitute a reasonable cause. Though the petitioner has averred in paragraph-16 of the petition that he had been making number of representations to the respondents, but has not annexed copy of any such representation with the petition. Relevant portion of paragraph-16 is reproduced hereunder: “16) That there is no delay in approaching the Hon’ble Court and filing the present writ petition. The petitioner has approached the respondents from time to time and also made a number of representations. The petitioner has not placed on record any representation because the petitioner has not kept copy of any representation with him as the petitioner is an innocent and ignorant……” 9. Therefore, in absence of any sufficient material produced on record regarding filing of representations before the respondents, it can easily be inferred that the petitioner in fact had not made any representation to the respondents from May 2004 till filing of the writ petition and he is just talking in the air. Therefore, on account of delay and laches alone, the writ petition deserves to be dismissed. 10. Now I come to the merits of the case. 11. Neither in the petition nor during arguments it was ever pleaded on behalf of petitioner that the petitioner before proceeding to his home in March 1998 had ever applied for leave. It has also not been pleaded in the petition that during the period the petitioner was at home with effect from 05.03.1998 to 28.04.2004 he had ever applied for leave either through registered post or by other means, or had apprised the respondents regarding his so called illness. This leads to the only conclusion that the petitioner had unauthorizedly absented from duty for all those years. 12. Further, the petitioner has not annexed with the writ petition the copies of prescription slips of the treatment from March 1998 to April 2004. He has only annexed a copy of Certificate of one Dr. This leads to the only conclusion that the petitioner had unauthorizedly absented from duty for all those years. 12. Further, the petitioner has not annexed with the writ petition the copies of prescription slips of the treatment from March 1998 to April 2004. He has only annexed a copy of Certificate of one Dr. N.C. Sharma, having clinic at Ambphalla, Jammu, certifying that the petitioner was under his treatment with effect from 05.03.1998 to 28.04.2004; meaning thereby the petitioner had been routinely coming to Jammu to get himself medically checked-up. The impugned order has been issued by the Commandant, JKAP, 12th Bn., Jammu. Once the headquarter of J&K Armed Police 12th Bn. is at Jammu, it is a million dollar question that why the petitioner did not go to his Headquarter at Jammu to apply for leave or submit the medical documents when he had been coming to Jammu to get himself treated with effect from 05.03.1998 to 28.04.2004. It all leads to the conclusion that the petitioner has cooked a story and the certificate of Dr. N.C. Sharma is also managed one. In fact the petitioner had left the battalion on his own and remained on unauthorized absence for all these years. 13. The respondents in their objections have also specifically averred that the petitioner was repeatedly notified to resume the duty, also through SHO Police Station Kishtwar. When the petitioner did not turn up, he was placed under suspension. Not only this, attendance notice was also published in Kashmir Times asking the petitioner to resume his duties. Since the petitioner did not turn up, the respondents had no option but to discharge the petitioner from service. 14. Therefore, in view of above discussion, I do not find any merit in the writ petition. Accordingly, the writ petition is dismissed along with connected miscellaneous petition(s), if any. 15. Record produced be returned to the learned counsel for respondents against proper receipt.