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2025 DIGILAW 460 (MP)

Uma Lakhere v. State of Madhya Pradesh

2025-08-07

ASHISH SHROTI

body2025
ORDER : 1. The petitioner has filed this petition challenging the order dated 11.12.2019 (Annexure P/1), whereby her services from the post of Aganwadi Karyakarta was terminated. She has also challenged the order dated 04.12.2020 (Annexure P/2), whereby the appeal filed by the petitioner against the order of punishment was dismissed by the Appellate Authority. The petitioner has also challenged the order dated 07.04.2025 (Annexure P/3), whereby she has been denied permission to join her services on account of her acquittal in the criminal case. 2. The learned Government Advocate appearing on advance notice raised a preliminary objection of delay and latches on the part of the petitioner inasmuch as the orders passed on 11.12.2019 & 04.12.2020 are being challenged in the writ petition without there being any cogent explanation for the delay. Based upon the said objection, this Court on 08.05.2025 granted time to the counsel for the petitioner to explain the delay in filing of the petition. 3. Today the arguments of learned counsel for the petitioner on admission as well as the objection of delay and latches are heard. 4. Counsel for the petitioner submitted that the petitioner was working as Aganwadi Karyakarta at ward no.45, Aganwadi Center Gahoghat Project, Gwalior. On account of allegations of selling the bags of Aganwadi Centre on a private shop, a complaint was lodged with the police on 10.12.2019. A show-cause notice was also issued to the petitioner on the same day i.e. 10.12.2019, to which the petitioner submitted reply. Thereafter, the impugned order dated 11.12.2019 (Annexure P/1) was passed, whereby her services were dispensed with. Pertinently, the aforesaid order of punishment was passed on the basis of the admission by the petitioner. The punishment order was challenged by the petitioner before the Additional Collector, Gwalior by filing an appeal which also suffered dismissal vide order dated 04.12.2020 (Annexure P/2). Thereafter, there was complete silence on the part of the petitioner for over five year. 5. The criminal case instituted against the petitioner was decided by the Court of 10th Additional Sessions Judge, Gwalior vide order dated 26.03.2025 passed in S.T. No.666/2021. The petitioner has been acquitted in the said criminal case. Based upon her acquittal, the petitioner submitted joining in the office of Project Officer, Women & Child Development Department, Chambal Colony, Gwalior on 02.04.2025. The criminal case instituted against the petitioner was decided by the Court of 10th Additional Sessions Judge, Gwalior vide order dated 26.03.2025 passed in S.T. No.666/2021. The petitioner has been acquitted in the said criminal case. Based upon her acquittal, the petitioner submitted joining in the office of Project Officer, Women & Child Development Department, Chambal Colony, Gwalior on 02.04.2025. The permission to join the duty was sought by the petitioner on the basis of her acquittal in the criminal case. The Project Officer, vide communication dated 07.04.2025 (Annexure P-3) has refused the joining to the petitioner on the ground that she was dismissed from the service on account of misconduct and her acquittal in the criminal case would not entitle her to join duty. Challenging these orders, the petitioner has filed the present petition. 6. The learned counsel for the petitioner submitted that action of dismissing the petitioner from service was ex facie illegal, inasmuch as no enquiry was conducted by the respondents before passing the order. He further submitted that after acquittal in the criminal case, the petitioner got the cause of action for filing the present petition. 7. Considered the arguments and perused the record. 8. A bare perusal of the impugned order dated 11.12.2019 & 04.12.2020, it is gathered that the dismissal of the petitioner from service was not based upon the criminal case. It was independent of the criminal charges. Thus, cause of action to challenge the aforesaid orders arose on 04.12.2020, when her appeal against the punishment order was dismissed. Her acquittal in the criminal case would not give any cause of action to the petitioner to challenge the orders passed on 11.12.2019 & 04.12.2020 as her dismissal from service was based upon departmental action taken by employer and was not based upon criminal case. There is thus certainly a delay of five years in approaching this Court. The only explanation given by petitioner for delay in filing present petition is the decision in the criminal case, which in the opinion of this Court would not be a ground for condoning the delay. 9. The Supreme Court has considered the aspect of delay and latches in the case of Chairman, State Bank of India Vs. M.J. James, (2022) 2 SCC 301 . The Apex Court held in para 36 and 38 as under : "36. 9. The Supreme Court has considered the aspect of delay and latches in the case of Chairman, State Bank of India Vs. M.J. James, (2022) 2 SCC 301 . The Apex Court held in para 36 and 38 as under : "36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non-existent. Doctrine of delay and latches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case. xxx xxx xxx 38. In Ram Chand v. Union of India, (1994) 1 SCC 44 and State of U.P. v. Manohar, (2005) 2 SCC 126 this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh, may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh, (1979) 2 SCC 409 : 1979 SCC (Tax) 144. Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam and Another v. Jaswant Singh and Another, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500, after referring to several judgments, has accepted the following elucidation in Halsbury’s Laws of England: 12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows: In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part. (ii) any change of position that has occurred on the defendant's part. (iii) Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. 13. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. 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?” 10. Applying the aforesaid legal principle, if the facts of the present case are seen, it is gathered that after dismissal of her appeal by the Appellate Authority, the petitioner kept silence for long more than five years. When the departmental action was taken, the criminal case was already pending against her. Further, during this gap of five years, the Government must have filled up the post which was held by petitioner. Thus, condoning delay and granting relief to petitioner may prejudicially effect a third person also. 11. It is also a settled legal position that a subsequent acquittal in the criminal case would not affect the concluded departmental action. This, has been so held by the Apex Court in the case of State Bank of Bikaner and Jaipur Vs. Thus, condoning delay and granting relief to petitioner may prejudicially effect a third person also. 11. It is also a settled legal position that a subsequent acquittal in the criminal case would not affect the concluded departmental action. This, has been so held by the Apex Court in the case of State Bank of Bikaner and Jaipur Vs. Nemi Chand Nalwaya, (2011) 9 SCC 584, wherein this Court in Para-10 held as under : "10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him." 12. In view of the aforesaid, finding no good ground for condoning the delay of five years, the petition is dismissed on the ground of delay and latches.