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2021 DIGILAW 58 (TS)

A Nageswara Rao S/o A Jogaiah v. State of Telangana, Rep by its Principal Secretary Home Department

2021-02-16

P.NAVEEN RAO

body2021
ORDER: Heard learned counsel for petitioner and Sri M.V.Rama Rao, learned Special Standing Counsel appearing on behalf of learned Government Pleader for Home. 2. Petitioner was enlisted as Police Constable on 1.6.1994. Disciplinary proceedings were initiated against petitioner vide proceedings dated 5.3.1999 on the allegation of “behaving in most irresponsible manner by collecting Rs.2100/- as illegal gratification from stipendiary Police Constables, which is violative of Rule 3 and 6 of the A.P. Civil Services (Conduct) Rules, 1964”. He was placed under suspension with effect from 5.3.1999. In the domestic enquiry, the Enquiry Officer held the charge as proved. Based on the findings recorded by the Enquiry Officer, the Commandant 7th Battalion passed orders dated 7.8.1999 removing the petitioner from service. The appeal preferred by the petitioner was rejected by proceedings dated 19.11.1999. The Revision Petition was rejected by proceedings dated 18.4.2000. The mercy petition was also rejected on 15.7.2000. Petitioner also claims that his other appeals were rejected on 24.5.2003. Thereafter, petitioner went into hiatus and suddenly resumed to agitate his grievance against removal by submitting a fresh appeal on 25.11.2020 addressed to various authorities. Petitioner also claimed to have made an application to the Principal Secretary to Government on 30.11.2019, however, no proof of acknowledgment is filed. This writ petition is filed alleging inaction on the said representation/appeal and challenging the order of removal dated 7.8.1999. 3. Though, no limitation is prescribed under Article 226 of the Constitution of India to entertain a writ petition, ordinarily, an aggrieved person has to invoke the extraordinary jurisdiction of this Court within a reasonable time from arising of the cause of action. Reasonable time to invoke the jurisdiction of this court is the time available for a person to prosecute civil litigation. Even after exhausting the limitation prescribed to prosecute a civil litigation, writ Court can still entertain a writ petition, if petitioner has satisfactorily explained the reasons for not availing the writ remedy within a reasonable time and coming to this Court after long lapse of time. 4. This writ petition is instituted 21 years after removal from service and 17 years after exhausting all the departmental remedies. Learned counsel for petitioner sought to contend that petitioner has very good case on merits and is confident of satisfying this Court that his removal from service was illegal and prayed to condone the delay. 5. 4. This writ petition is instituted 21 years after removal from service and 17 years after exhausting all the departmental remedies. Learned counsel for petitioner sought to contend that petitioner has very good case on merits and is confident of satisfying this Court that his removal from service was illegal and prayed to condone the delay. 5. It is not stated by the petitioner as to how serious was the health status of his child disentitling him to prosecute extraordinary remedy under Article 226 of the Constitution of India, after exhausting the remedies within the department. In paragraph 4 of the affidavit filed in support of the writ petition, a bald statement is made that he has two children and a wife, his elder son died at a very tender age due to health related issues and his younger son was having health issues continuously and regularly hospitalized. 6. In paragraph 5 of the affidavit filed in support of the writ petition, petitioner sought to state “I had initiated my appeals and sought for justice on the impugned removal orders passed by respondent No.5 till 2003, and thereafter, I could not continue my fight for justice citing my family conditions and my financial difficulties. I had to divert my attention towards saving at least my younger son as he had been subjected to severe illness and could not continue my fight for justice upon my impugned removal orders passed by respondent no.5 which was confirmed my other respondents”. In other paragraphs, petitioner placed reliance on the decisions of the Hon’ble Supreme Court on delay. 7. Petitioner is an employee of the State and at the relevant point of time the jurisdiction to adjudicate service disputes vested in A.P. Administrative Tribunal established under the Administrative Tribunals Act, 1985. An employee aggrieved by any adverse decision on his service conditions can invoke the jurisdiction of the Administrative Tribunal under Section 19 of the Act. Section 20 of the Act deals with exhausting other remedies before filing the case. 8. As per Section 21 of the Act, 1985 an aggrieved person has to avail the remedy before the Administrative Tribunal within one year from the date of arising cause of action. In the instant case, even taking the order in mercy petition, i.e., 15.7.2000, the petitioner is required to avail the remedy provided under the Act, 1985 on or before 14.7.2001. In the instant case, even taking the order in mercy petition, i.e., 15.7.2000, the petitioner is required to avail the remedy provided under the Act, 1985 on or before 14.7.2001. The Administrative Tribunal was also vested with power to condone the delay, if same was satisfactorily explained. Be that as it may, petitioner did not avail the remedy provided under the Act, 1985 when it was available to him. Merely because subsequently Administrative Tribunal was abolished and jurisdiction is now vested in the Civil Courts and this Court under Article 226 of the Constitution of India, it cannot revive the cause of action extinguished long long ago. Under the guise of making further representations/ appeals petitioner cannot seek to revive the said cause of action. After exhausting the departmental remedies available to him mere submission of mercy petition or representation/further appeal does not save limitation as held by the Hon’ble Supreme Court in S.S. Rathod Vs State of Madhya Pradesh, AIR 1990 SC 10 = (1989) 4 SCC 582 . 9. Though no limitation is prescribed to entertain a writ petition under Article 226 of the Constitution of India, the principle of law is well settled that a person, who seeks intervention of the High Court by exercising its equitable jurisdiction under Article 226 of the Constitution of India, should avail the remedy immediately after arising of cause of action, at any rate within a reasonable time. Ordinarily, the reasonable time in prosecuting the writ remedy is the time available to prosecute civil law remedy. In case of public servant, under the Administrative Tribunals Act, 1985 it was one year. Anything beyond the limitation prescribed in the Act, 1985 till it was abolished cannot be said as reasonable for prosecuting the writ remedy. [Shankara Coop. Housing Society Ltd. v. M. Prabhakar and others, 2011 (4) ALD 112 (SC) and City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others, 2009 (1) ALD 24 (SC) = AIR 2009 SC 571 .] 10. Whenever, there is delay in filing the writ petition, detailed reasons must be assigned with supporting material. The burden is heavy on petitioner to explain the delay in filing the writ petition when such delay is unreasonably long. Even if the date of order rejecting the mercy petition is taken, the delay of 18 years cannot be said as reasonable. Whenever, there is delay in filing the writ petition, detailed reasons must be assigned with supporting material. The burden is heavy on petitioner to explain the delay in filing the writ petition when such delay is unreasonably long. Even if the date of order rejecting the mercy petition is taken, the delay of 18 years cannot be said as reasonable. Therefore, there ought to have been detailed explanation for not filing the writ petition immediately, without making vague assertions. The petitioners miserably failed in doing so. 11. In Shankara Coop. Housing Society Ltd. on detail consideration of the various judgments on the issue of maintainability of the writ petition filed after long lapse of time, the Hon’ble Supreme Court laid down the parameters for entertaining the writ petition. They read as under: “The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ Court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay” 12. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay” 12. As no satisfactory explanation is offered by the petitioner to entertain the writ petition instituted after long lapse of time, per se, the writ petition is liable to be dismissed on the sole ground of inordinate delay and laches in prosecuting the grievance. 13. Even assuming that there is merit in the submissions made by the petitioners, the writ Court does not entertain the stale claims and grant the reliefs. The writ remedy is discretionary remedy and is an extraordinary remedy available to a person who intends to assert his right by diligently prosecuting the legal remedy and not to a person sleeping over his right for years. It is not in the interest of justice and fair play to grant relief on a stale claim. In City Industrial Development Corporation, the Hon’ble Supreme Court held as under : “A writ of mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the Court for a writ is an adequate ground for refusing a writ. The principle is that Courts exercising public law jurisdiction do not encroach agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum” 14. Further, the scope of judicial review in matters arising out of disciplinary action is very limited. The Court is required to notice whether procedural safeguards are observed, whether authorities erred in not applying the mind and by deviating from the prescribed procedure, whether any prejudice is caused to delinquent employee warranting interference by this Court. Having due regard to scope of judicial review, the Court also looked into the contention of the learned counsel for petitioner that petitioner was not afforded reasonable opportunity and removal order is not justified and is liable to be set aside and to test whether there is any merit in the said submission. 15. Having due regard to scope of judicial review, the Court also looked into the contention of the learned counsel for petitioner that petitioner was not afforded reasonable opportunity and removal order is not justified and is liable to be set aside and to test whether there is any merit in the said submission. 15. As required by the Telangana State Civil Services (CCA) Rules, 1991 governing the service of the petitioner, charge memo was issued; domestic enquiry was conducted; based on the report of the enquiry officer disciplinary authority called for the explanation of the petitioner; and passed final orders on due consideration of the findings recorded by the enquiry officer. Thus, it is not a case of patent illegality in conducting disciplinary proceedings. 16. The charge against the petitioner was collecting money illegally from stipendiary police constables, which is a grave misconduct. In the appeal, petitioner sought to explain that said money was taken as a loan and he has returned the same to the stipendiary police constables. In other words, petitioner admitted receiving the money from them and as a defence he was trying to justify by stating that it was only a hand loan. This was considered by initial authority and appellate authority. The appellate authority observed: “I have carefully perused the appeal petition and the connected records. The appellant also admits that he had collected the money, but states that he took it as loan and that he had returned the same to the Stipendiary PCs. The explanation of the appellant that he had returned the money is not proved as most of the PWs did not speak about this. Even otherwise the appellant had no business to take hand loans from his trainees. There is clinching evidence that the appellant had collected money from the Stipendiary PCs. Being their instructor and indulging in such money collection from the trainees is to say, highly reprehensible and cannot be condoned. I see no merits in the appeal and it is dismissed”. 17. This clearly shows it is not a case of non application of mind. Nor can it be said that relevant facts were not considered by the departmental authorities. From the material on record, the Court has not seen patent illegality in the procedure followed by the disciplinary authority and the decisions taken by the higher authorities. There is no merit in the writ petition. Nor can it be said that relevant facts were not considered by the departmental authorities. From the material on record, the Court has not seen patent illegality in the procedure followed by the disciplinary authority and the decisions taken by the higher authorities. There is no merit in the writ petition. Writ Petition is accordingly dismissed. No costs. Miscellaneous petitions, if any pending, are closed.