Jharkhand High Court
Dilip Kumar Sahu vs The State Jharkhand on 8 January, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A No. 510 of 2024
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Dilip Kumar Sahu, aged about 62 years, son of Late
Narayan Sahu, resident of Gurudwara Road, Lower Hatia,
P.O.-Hatia, P.S.-Jagarnathpur, District-Ranchi.
.... Petitioner/Appellant
Versus
1. The State Jharkhand, through its Chief Secretary,
Government of Jharkhand, Project Bhawan, P.O. & P.S.-
Dhurwa, District-Ranchi.
2. Divisional Commissioner, South Chhotanagpur
Division, Ranchi, P.O.-GPO, Ranchi, P.S.-Kotwali, District-
Ranchi.
3. Deputy Commissioner, Gumla, P.O. & P.S.-Gumla,
District-Gumla.
4. Deputy Development Commissioner-cum-Dy.
Chairman, District Rural Development Authority, Gumla,
P.O. & P.S.-Gumla, District-Gumla.
.... ...Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
For the State : Mr. Ratnesh Kumar, SC (L&C)-I
Mr. R.K. Shahi, AC to SC (L&C)-I
.....
Order No. 05/Date: 8th January, 2025:
Per Sujit Narayan Prasad, J.:
Prayer:
1. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against order/judgment dated 16.08.2024 passed by learned Single Judge in W.P.(S) No. 4477 of 2019 whereby and whereunder without deliberating the issues on merit the learned Single Judge has dismissed the writ petition by refusing to interfere with the order passed by the disciplinary -2- authority dated 22.09.1997 and appellate order dated 05.06.2006 solely on the ground of delay and laches, since the writ petition was filed after a lapse of about 12 years of passing of impugned order.
Brief facts of the case:
2. Brief facts of the case, as per the pleadings made in the writ petition, which is required for adjudication of lis, reads as under:
3. The petitioner was appointed on the post of Village Level Worker [VLW], now designated as „Jan Sewak‟, on 20.10.1986. While working as such in the district of Raidih, Gumla, he was served with a charge-sheet issued by respondent no. 3 on 18.12.1990, on the allegation of dereliction of duty and irregularities in Government work, misleading the higher authorities and violation of Government Rules, to which he replied vide letter dated 06.01.1991 before the enquiry officer denying the allegation leveled against him.
4. After enquiry, vide letter dated 03.04.1991, the enquiry officer-cum-Sub Divisional Officer, Gumla submitted enquiry report to the Director, Accounts, Administration and Self-Employment Programme, Gumla holding the charges not proved against the appellant.
However, disagreeing with the enquiry report, the respondent no. 3 asked respondent no. 4 to re-enquire -3- the matter, in turn, the respondent no. 4 submitted the report holding charge nos. 1 and 2 not proved whereas in respect of charge no. 3, the appellant was asked to be vigilant.
5. Thereafter, vide office order dated 13.02.1992, the respondent no. 4 imposed a punishment of withholding of five annual increments and salary for the period of suspension, against which, the appellant preferred departmental appeal, which was dismissed vide order dated 07.09.1993.
6. Being aggrieved with the order passed by the disciplinary authority as well as the appellate authority, the appellant invoked the writ jurisdiction of this Court by filing CWJC No. 1953 of 1994(R), which was dismissed vide order dated 17.05.1995, against which the appellant preferred intra-court appeal, being LPA. No. 288 of 1995(R), which was allowed vide order dated 10.07.1996 and the matter was remitted to the disciplinary authority asking him to start the proceeding afresh from the stage of enquiry report after providing opportunity of being heard to the appellant and to pass a reasoned order.
7. Accordingly, the respondent no. 3 modified the order of punishment vide order dated 22.09.1997 and reduced the same by withholding two annual increments and salary during the period of suspension, against which the -4- writ petitioner-appellant preferred departmental appeal which was dismissed vide order dated 05.06.2006.
8. The writ petitioner-appellant being aggrieved with the order passed by the disciplinary authority dated 22.09.1997 and appellate order dated 05.06.2006 again invoked the writ jurisdiction of this Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 4477 of 2019, which was dismissed solely on the ground of delay and laches without deliberating the issues on merit, against which the instant intra-court appeal has been preferred.
9. It is evident from the aforesaid factual aspect that the appellant, who is a Village Level Worker [VLW] was served with a charge-sheet on the allegation, inter alia,
(i).dereliction of duty and irregularities in Government work; (ii).misleading the higher authorities and
(iii).violation of Government Rules. For ready reference, the charge, which is in Hindi, is quoted as under:
,
- (ख) 1 - ( ) 2 ख
3. 1200-1800 1 ऋ
1. , ख -5- ख ध 11.04.1990 ध ख
10.04.1990 इ
2. ध , ख धख , ऋ ख ध ऋ
3. , ख , फ ऋ इ , ध . 15 ध ध ध इ ध औ
- -
-6-
10. The enquiry officer-cum-Sub Divisional Officer, Gumla found the charges leveled against the appellant not proved. But disagreeing with the enquiry report, the respondent no. 3 asked respondent no. 4 to re-enquire the matter, whereupon, the respondent no. 4 again submitted the report holding charge nos. 1 and 2 not proved whereas in respect of charge no. 3, the appellant was warned to be vigilant.
11. Thereafter, vide office order dated 13.02.1992, the respondent no. 4 imposed a punishment of withholding of five annual increments and salary for the period of suspension, against which, the appellant preferred departmental appeal, which was dismissed vide order dated 07.09.1993.
12. Being aggrieved the appellant filed writ petition being CWJC No. 1953 of 1994(R), which was dismissed, against which the appellant preferred LPA. No. 288 of 1995(R), which was allowed vide order dated 10.07.1996, by which, the matter was remitted to the disciplinary authority asking him to start the proceeding afresh from the stage of enquiry report after providing opportunity of being heard to the appellant.
13. Accordingly, the respondent no. 3 modified the order of punishment vide order dated 22.09.1997 by reducing the punishment by withholding two annual increments -7- and salary during the period of suspension, against which the petitioner preferred departmental appeal which was also dismissed vide order dated 05.06.2006.
14. The appellant being aggrieved with the same again filed writ petition being W.P. (S) No. 4477 of 2019, which was dismissed solely on the ground of delay and laches without deliberating the issues on merit against which the instant appeal has been preferred.
15. Thus, it is evident that the instant intra-court appeal has been filed on two counts - (i);questioning the order passed by the learned Single Judge in dismissing the writ petition on the ground of delay and laches as also
(ii).questioning the order passed by the administrative authorities in imposing impugned punishments. Argument of the learned counsel for the of appellant:
16. The learned counsel for the writ petitioner-appellant has first argued questioning the order passed by the learned Single Judge in dismissing the writ petition on the ground of delay and laches and submitted that the impugned cannot be said to be just and proper since the learned Single Judge has not appreciated the fact that the High Court being the constitutional Court and while exercising the power conferred under Article 226 of the Constitution of India is to consider the issue of substantial justice and moreover it was required to -8- consider the issue on merit keeping the fact into consideration that no third party right was created since the dispute pertains to mandatory benefits due to imposition of punishment of withholding of two annual increments with cumulative effects.
17. The learned Single Judge has also not appreciated the fact that the writ petitioner in the meanwhile has retired from service on attaining the age of superannuation but due to imposition of punishment of two annual increments with cumulative effects, the petitioner is being put to disadvantageous position in his pensionary benefits and pension being the recurring cause of action, the principle of delay and laches will not be apply.
18. The learned counsel for the petitioner further questioning the propriety of the order passed by the disciplinary authority has submitted that the propriety of the order of punishment needs to be appreciated by this Court, in exercise of power conferred under Article 226 of the Constitution of India, reason being that while imposing the order of punishment the gross injustice has been done to the petitioner as the petitioner at the relevant time was working on the post of Jan Sewak [Village Level Worker] and altogether three charges were leveled against him.
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19. The enquiry has been proceeded based upon that the writ petitioner was asked to appear before the enquiry officer. The petitioner has taken the defence by giving reply therein. The enquiry officer has found charge nos. 1 and 2 not proved whereas charge no. 3 was found to be proved and accordingly recommendation was made to the delinquent employee to remain cautious in future by making remark of warning.
20. The learned counsel appearing for the appellant has submitted that charge no. 3, pertains to violation of government rules i.e., in the matter of disbursal of cattle in favour of beneficiaries under the scheme known as „Integrated Rural Development Programme‟. It has been contended that the writ petitioner has submitted specific reply that work assigned to him during the relevant time in the capacity of Village Level Worker was to collect application from the beneficiary and submit the same before the Block Development Officer [BDO]. He has not having any duty for collection of money from the concerned Branch of the Bank for the purpose of disbursal of money in favour of beneficiaries. But even then, the charge has been framed showing the conduct of the petitioner to the effect that he has been assigned with the duty to collect money from the bank and purchase the cattle for the purpose of its distribution amongst the
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beneficiaries. The contention has been raised that if no such work is assigned, it cannot be terms as misconduct. Therefore, the charge no. 3, which has been found to be proved by the enquiry officer, cannot be said to be proved. But the said issue since has not been adjudicated by the writ Court in exercise of power conferred under Article 226 of the Constitution of India, hence, the instant intra court appeal has been filed so as to appreciate the argument and the ground which could not have been appreciated properly by the disciplinary authority; appellate authority or even by the learned Single Judge whereby the writ petition has been dismissed on the ground of delay and laches without entering into the merit of the issue.
Argument on behalf of the learned counsel for the Respondents-State:
21. While on the other hand, Mr. Ratnesh Kumar, learned SC (L&C)-I appearing for the respondents-State has taken the following ground in defending the order passed by the learned Single Judge.
22. It has been contended that the learned Single Judge has not erred in passing the impugned order reason being that it is the bounden duty of the litigant concerned to approach the Court of law within a reasonable period, but, herein the impugned order was passed way back in the year 2006, against which the writ
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petition has been filed in the year 2019 that is after lapse of 13 years and after taking into consideration such inordinate delay in approaching court of law, that is the court of equity, which is having the discretionary power and if in such circumstances, the writ petition has been dismissed, the same cannot be suffer from an error.
23. The learned State counsel has further submitted that there is no explanation having been furnished for such inordinate delay and in absence thereof, if the learned Single Judge has come to the conclusion that the writ petition is barred by the principle of delay and laches, which led the learned Single Judge in dismissing the writ petition, it cannot be said to suffer from an error.
24. Learned counsel appearing for the State based upon the aforesaid ground has submitted that the impugned judgment passed by learned Single Judge suffers from no error, and requires no interference by this Court.
25. Learned counsel appearing for the respondents- State, in response to the argument advanced by learned counsel for the writ petitioner-appellant on the propriety of order passed by the administrative authorities imposing the impugned punishment, has submitted by referring to the order of punishment wherein it has come on record that the charge no. 3 has been said to be proved since as per the objective of the scheme, the cattle
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were to be distributed amongst the beneficiaries instead of distribution of money in cash. The same has been treated to be gross misconduct on the part of the petitioner who was working as Jan Sewak since the Jan Sewak was involved in each and every stage of execution of scheme, and as such it is incorrect on the part of the petitioner to take the ground that the petitioner cannot be said to have any involvement in the matter of distribution of cattle or distribution of cash which is the allegation against the appellant.
26. Learned State counsel based upon the aforesaid ground has submitted that since the fact finding has been arrived by the enquiry officer and as such it is incorrect on the part of the learned counsel to take the ground that the order of punishment so far as it relates to proved charge i.e., charge no. 3, suffers from an error. Analysis:
27. We have heard learned counsel for the parties, gone across the finding recorded by the learned Single Judge in the impugned order as also the original record, which were called for by this Court, as would be evident from order dated 12th December, 2024.
28. This Court before proceeding to examine the propriety of the impugned order of punishment needs to first refer the order passed by the learned Single Judge
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wherein the writ petition has been dismissed on the sole ground of delay and laches since the writ petition has been filed after delay of 12 years from the date of passing of impugned order of punishment.
29. There is no dispute of the proposition of law that the writ court being the court of equity is to entertain the writ petition, if the writ court is being approached within a reasonable period of time.
30. It is also equally settled that in the proceeding under Article 226 of the Constitution of India the principle of limitation is not applicable but the delay and laches is applicable so that the court of equity may not be approached after inordinate delay. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 wherein at paragraph-2, their Lordship have held as under:
"2. The main grievance of the appellant is that the second respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the second respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not
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controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after Respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when Respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957, cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant's case as if nothing had happened after 1957. Not only Respondent 2 but also Respondents 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957, apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts
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cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
31. Further, the Hon'ble Apex Court in the case of New Delhi Municipal Council v. Pan Singh, (2007) 9 SCC 278 by referring to the judgment rendered in the case of Lipton India Ltd. v. Union of India, (1994) 6 SCC 524 has observed that:
"17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R. Gupta v. Union of India [(1995) 5 SCC 628 : 1995 SCC (L&S) 1273 : (1995) 31 ATC 186]."
32. But it is also equally settled that where the principle of delay and laches is to be made applicable has got no straightjacket formula, as has been dealt with by the Hon‟ble Apex Court in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal [(1986) 4 SCC 566], wherein by making reference of the principle which
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is to be followed in entertaining a writ petition even after delay, the Hon‟ble Apex Court has been pleased to hold at paragraph 24 that the foremost factor where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere. The other factor which is to be borne in mind is whether court‟s interference is likely to cause confusion and public inconvenience and bring in new injustices. Relief could also be denied even on delay if the official respondents are hopelessly inconvenient in defending their action for lack of relevant document and to establish their defence to the full satisfaction to the court. For ready reference, the relevant paragraph 24 of the judgment is quoted as under:
"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ 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. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also
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injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decisions of this Court one in Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489 : AIR 1979 SC 1628 : (1979) 3 SCR 1014] and the other in Ashok Kumar Mishra v. Collector [(1980) 1 SCC 180 :
AIR 1980 SC 112 : (1980) 1 SCR 491] . We may point out that in R.D. Shetty case, even though the State action was held to be unconstitutional as being violative of Article 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition had been filed by the petitioner more than five months after the acceptance of the tender of the fourth respondent and during that period, the fourth respondent had incurred considerable expenditure, aggregating to about Rs 1.25 lakhs, in making arrangements for putting up the restaurant and the snack bar. Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it.
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33. The Hon‟ble Apex Court has further in the case of Ram Autar Singh Yadav Vs. The State of Uttar Pradesh & Ors. passed in Civil Appeal No. 13806 of 2024 arising out of SLP (C) No. 26568 of 2023 has been pleased to take into consideration the law laid down in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra) and came to the conclusion at paragraph 21 by making reference of three conditions whereon relief could be declined. The three such conditions are quoted as under:
I. In a case of unexplained delay and laches is the accrual of a parallel right in favour of third party. II. Grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long settled.
III. If by reason of the delay, the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the court.
34. For ready reference, the paragraph 21 of the judgment rendered in the case of Ram Autar Singh Yadav Vs. The State of Uttar Pradesh & Ors. (supra) is quoted as under:
"21. Taking a cue from the above, we can safely conclude that the foremost factor based whereon relief could be declined in a case of unexplained delay and laches is the accrual of a parallel right in favour of third party. The other vital factor to be borne in mind is whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long settled. Relief could also be
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denied if by reason of the delay, the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the court."
35. The Hon‟ble Apex Court has further considered the factual aspect of the case governing the case of Ram Autar Singh Yadav Vs. The State of Uttar Pradesh & Ors. (supra) as would be evident from paragraph 22 wherein by taking into consideration the conditions as quoted at paragraph 21, as quoted and referred hereinabove, the Hon‟ble Apex Court has come to the conclusion that the three conditions have been meted out and as such the order of the High Court wherein the prayer to interfere in exercise of extraordinary jurisdiction has been refused by dismissal of the writ petition filed under Article 226 of the Constitution of India has been quashed and set aside and the matter was remitted before the High Court for passing the order afresh. For ready reference, paragraph 22 of the judgment is quoted as under:
"22. In the present case, neither is there accrual of any parallel right of a third party nor could grant of relief cause confusion and public inconvenience. There has also been no occasion for the State authorities to claim that they are in any manner handicapped to defend their action. On the contrary, this is a case where the appellant sought to explain the belated approach by referring to his repeated unyielding persuasions, which the High Court brushed aside mechanically, without appreciating that the appellant had invoked its writ
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jurisdiction for enforcement of his Fundamental Rights under Articles 14 and 21 of the Constitution. When a litigant approaches a high court invoking its high prerogative writ jurisdiction with a petition under Article 226 of the Constitution alleging that the impugned State action is in breach of his Fundamental Right and claims that the breach be bridged by issuing appropriate writ/order/direction as distinguished from a claim for enforcement of a statutory right, it partakes the character of a duty on the part of such high court to enforce the right breached as the guardian of the Constitution. Law is well-settled that there is no loss of a Fundamental Right for non-exercise thereof and also that there cannot be waiver of a Fundamental Right. Hence, no argument can commend acceptance that a litigant seeking enforcement of his Fundamental Right should be declined relief in all cases of a belated approach. Notwithstanding delay, which might not have been explained to the full satisfaction of a high court, we hold that in cases where a high court finds that facts, as they have been presented, are not seriously disputed, no further investigation into facts is required to be made, the relief claimed in the petition was otherwise due to the writ petitioner and the same would have followed as a matter of course and been granted had he approached the high court without delay, it would be iniquitous and inappropriate to deny relief for no better reason than that the relief has been belatedly claimed."
36. Again, the Hon‟ble Apex Court in the case of Dharnidhar Mishra (D) and Anr. Vs. State of Bihar & Ors [(2024) 10 SCC 605] has taken into consideration the dismissal of the writ petition by the learned Single Judge of the high court which was dismissed only on the ground of delay and in appeal, the appellate court disposed of the appeal asking the appellant to file an
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application before the authority concerned for disbursement of the amount of compensation. The Hon‟ble Apex Court has taken into consideration, based upon the factual aspect governing the said case, two things, i.e., the High Court in its impugned order [Dharnidhar Mishra v. State of Bihar, 2023 SCC OnLine Pat 11321] has stated that the appellant herein has been informed about the value of the land assessed at Rs 4,68,099. Secondly, the order of the High Court could be said to be a non-speaking order. For ready reference, paragraph 11 of the judgment is quoted as under:
"11. We take notice of two things: first, the High Court in its impugned order has stated that the appellant herein has been informed about the value of the land assessed at Rs 4,68,099. We fail to understand on what basis this figure has been arrived at; at what point of time this amount came to be assessed; and the basis for the assessment of such amount. Secondly, the order of the High Court could be said to be a non-speaking order. Although at this stage, the learned counsel appearing for the State of Bihar submitted that it was an order obtained with the consent of the parties, yet there is nothing to indicate that any consent was given by the appellant herein to pass such an order."
37. The consideration has been given so far as the first thing that the High Court should have enquired with the State is as to why in the year 1977 itself, that is, the year in which the land came to be acquired, the award for compensation was not passed. The High Court should
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have enquired why it took forty-two years for the State to determine the figure of Rs 4,68,099/-. The Hon‟ble Apex Court has shown its disappointment that while disposing of the appeal and hold that rejection of the writ petition filed on the ground of delay cannot be said to be just and proper in view of the fact that the amount of compensation being the constitutional right cannot be taken away from the concerned party.
38. The Hon‟ble Apex Court further at paragraph 23 has been pleased to hold that by making reference of judgment passed in the case of Vidya Devi v. State of H.P. (2020) 2 SCC 569] held that delay and laches cannot be raised in a case of a continuing cause of action or if the circumstances shock the judicial conscience of the court. The condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. It has been held that it would depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
39. In paragraph 24 of the said judgment by making reference of case of P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152, it has been held that in a case
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where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. The relevant paragraphs of the judgment are being quoted as under:
"12.The first thing that the High Court should have enquired with the State is as to why in the year 1977 itself, that is, the year in which the land came to be acquired, the award for compensation was not passed. The High Court should have enquired why it took forty- two years for the State to determine the figure of Rs 4,68,099. The High Court should also have asked the State the basis of the determination of the amount towards compensation. It is a well-settled position of law that after the award towards compensation is passed, if the owner of the land is not satisfied with the quantum, he can even file an appeal for the enhancement of the same. The High Court proceeded on the footing that the amount of Rs 4,68,099 has been assessed and it is now for the appellant to file an appropriate application and get the amount disbursed in his favour.
23. We regret to state that the learned Single Judge [Dharnidhar Mishra v. State of Bihar, 2019 SCC OnLine Pat 3412] of the High Court did not deem fit even to enquire with the State whether just and fair compensation was paid to the appellant or not. The learned Single Judge [Dharnidhar Mishra v. State of Bihar, 2019 SCC OnLine Pat 3412] rejected the writ petition only on the ground of delay. As held by this Court in Vidya Devi v. State of H.P. [Vidya Devi v. State of H.P., (2020) 2 SCC 569 : (2020) 1 SCC (Civ) 799] , delay and laches cannot be raised in a case of a continuing cause of action or if the circumstances shock the judicial conscience of the court. The condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. As held by this Court, it
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would depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice."
40. It is evident from the aforesaid judgments that the principle of delay and laches is the important factor in entertaining the writ petition by high court in exercise of power conferred under Article 226 of the Constitution of India. But, as has been held by Hon‟ble Apex Court that while considering the principle of delay and laches, without entering into the merit of the case, three conditions, as has been held by Hon‟ble Apex Court in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra) as quoted above, is required to be taken into consideration.
41. In the backdrop of aforesaid judicial pronouncement, this Court is now proceeding to examine the factual aspect of the matter so as to come to the conclusion that whether the judgment passed by learned Single Judge dismissing the writ petition solely on the ground of delay and laches requires interference or not?
42. Admitted fact is that the petitioner who was holding the post of Village Level Worker (Jan Sewak) was assigned with the duty of implementation of government scheme for the purpose of benefitting the beneficiaries under various social welfare scheme. A departmental
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proceeding was initiated on the charge of (i).dereliction of duty and irregularities in Government work; (ii). misleading the higher authorities and (iii).violation of Government Rules. The charge in verbatim has been quoted above.
43. The enquiry officer-cum-Sub Divisional Officer, Gumla, after enquiry, has found the charges leveled against the appellant not proved. But disagreeing with the enquiry report, the respondent no. 3 asked respondent no. 4 to re-enquire the matter, whereupon, the respondent no. 4 submitted the report holding charge nos. 1 and 2 not proved whereas in respect of charge no. 3, the appellant was warned to be vigilant.
44. Thereafter, vide office order dated 13.02.1992, the respondent no. 4 imposed a punishment of withholding of five annual increments and salary for the period of suspension, against which, the appellant preferred departmental appeal, which was dismissed vide order dated 07.09.1993.
45. Being aggrieved the appellant filed CWJC No. 1953 of 1994(R), which was dismissed, against which the appellant preferred LPA. No. 288 of 1995(R). The Division Bench taking note of the fact has held that in case the disciplinary authority differs with the report of the enquiry officer, he has to assign reason in his order for
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differing with the same and if the punishment is not minor then an opportunity should be afforded to the aggrieved. But herein neither any reason for differing with the disciplinary authority has been assigned nor any opportunity was provided to the appellant to appear before the disciplinary authority. Accordingly, the intra- court was allowed vide order dated 10.07.1996 and the matter was remitted to the disciplinary authority asking him to start the proceeding afresh from the stage of enquiry report after providing opportunity of being heard to the appellant.
46. It appears from the record that thereafter the respondent no. 3 modified the order of punishment vide order dated 22.09.1997 reducing the punishment to withholding of two annual increments and salary during the period of suspension, against which the petitioner preferred departmental appeal which was dismissed vide order dated 05.06.2006.
47. It further appears that although the impugned order was passed in the year 2006 but the appellant filed the writ petition in the year 2019 being W.P.(S) No. 4477 of 2019, which was dismissed solely on the ground of delay and laches admittedly without deliberating the issues on merit but in the meantime, the appellant retired from services on attaining the age of superannuation.
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48. The question which was raised before the learned Single Judge that although delay and laches is there but after the separation from service on attaining the age of superannuation, the punishment of two annual increments with cumulative effect is affecting the pensionary right of the petitioner by deduction of pay- scale by two increments which is cumulative in nature but the learned Single Judge, by applying the general principle of delay and laches even without taking into consideration as has been laid down by Hon‟ble Apex Court in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra) has dismissed the writ petition solely on the ground of delay and laches as the writ petition has been filed after delay of 12 years.
49. Further it is evident that the fact about accrual of third-party right is not the case herein as has been admitted by learned State counsel. Further, it is also not the case herein that grant of relief in a belated claim is likely to cause confusion and public inconvenience. So far third yardstick that if by reason of the delay, the official respondents are hopelessly inconvenienced in defending their action for lack of the relevant records and to establish their defence to the full satisfaction of the court it is also not the case herein since, the original
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enquiry proceeding is produced before the Court by the learned State counsel on being called upon by this Court.
50. Therefore, this Court is of the view that before dismissal of the writ petition on the ground of delay of 12 years, the learned Single Judge ought to have taken into consideration with respect of three parameters, as has been held in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra). The learned Single Judge instead of doing so, applied the judgment passed in the case of Karnataka Power Corporation Ltd. Vs. K. Thangamppan [(2006) 4 SCC 322]; Chennai Metropolitan Water Supply and Sewerage Board V. T.T. Murali Babu [(2024) 4 SCC 108] and Chairman, State Bank of India Vs. M J James [(2022) 2 SCC 301] and accordingly dismissed the writ petition.
51. We have already expressed our view hereinabove that the general principle of applicability of delay and laches is already there but it is also settled that the applicability of delay and laches is having no straightjacket formula, which has even been taken note by learned Single Judge while making reference of the judgment rendered by Hon‟ble Apex Court in the case of Chairman, State Bank of India Vs. M J James (supra) wherein proposition has been laid down at paragraph 36 that what is a reasonable time is not to be put in a straitjacket
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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 laches 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.
52. The said principle is to be applied coupled with the principle laid down in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra) wherein three conditions has been enumerated, as referred above. But the learned Single Judge has not gone into these aforesaid aspect of the matter and further the learned Single Judge has also not appreciated the fact that the writ petitioner during pendency of the writ petition has retired from service on attaining the age of superannuation due to the subsistence of the order of punishment, he is put to disadvantageous position day by day since he is getting the pension on reduced pay- scale, which is recurring cause of action.
53. The law is well settled that the principle of delay and laches is not to be made applicable if the cause of action is recurring particularly in the case of pension.
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54. "Recurring" means suffering of the litigant, particularly, the public servant if the suffering is continuing day by day, the same will be said to be recurring cause of action. Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. A recurring or successive wrong, occurs when successive acts, each giving rise to a distinct and separate cause of action, are committed. Each act, in itself wrongful, constitutes a separate cause of action for sustaining a claim or a complaint and therefore delay and laches will not be applicable in such case. Reference in this regard, be made to the judgment rendered by the Hon'ble Apex Court in the case of M.R. Gupta v. Union of India [(1995) 5 SCC 628], wherein at paragraph 5, it has been held as under:
"5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of
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limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1-8-1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
55. Further, the Hon'ble Apex Court in the case of Union of India v. Tarsem Singh [(2008) 8 SCC 648] at paragraph 4 held as under:
4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong" refers to a single wrongful act which causes a continuing injury.
"Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC 798] explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963) : (AIR p. 807, para 31) "31. ... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the
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wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."
56. The law is already settled by Hon'ble Apex Court that the pension will be said to be recurring cause, reference in this regard be made to the judgment rendered in the case of M.L. Patil (Dead) through Legal Representatives v. State of Goa, (2023) 1 SCC 660. For ready reference the relevant paragraph of the aforesaid judgment is being quoted hereunder as:--
"6. As such, the High Court may be right and/or justified in denying any salary for the period of two extra years to the writ petitioners if they would have continued in service, on the ground of delay. However, as far as the pension is concerned, it is a continuous cause of action. There is no justification at all for denying the arrears of pension as if they would have been retired/superannuated at the age of 60 years. There is no justification at all by the High Court to deny the pension at the revised rates and payable only from 1-1-2020. Under the circumstances, the impugned judgment and order [Laxman J. Chavan v. State of Goa, 2020 SCC OnLine Bom 236] passed by the High Court is required to be modified to the aforesaid extent."
57. This issue has also been considered by Hon'ble Apex Court in the case of Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation, 2022
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SCC OnLine SC 641 wherein at paragraph 10 it has been held which is being referred and quoted hereunder as:--
"10. At the same time, the law recognises a „continuing‟ cause of action which may give rise to a „recurring‟ cause of action as in the case of salary or pension. This Court in M.R. Gupta v. Union of India10, has held that so long as the employee is in service, a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. If the employee's claim is found to be correct on merits, they would be entitled to be paid according to the properly fixed pay-scale in future and the question of limitation would arise for recovery of the arrears for the past period. The Court held that the arrears should be calculated and paid as long as they have not become time-barred. The entire claim for the past period should not be rejected."
58. This Court, on the basis of discussion made herein above and further taking in to consideration the settled position of law as rendered by the Hon‟ble Apex Cout particularly in the case of State of Madhya Pradesh & Ors Vs. Nandlal Jaiswal (supra), is of view that the order passed by the learned Single Judge needs to be interfered with.
59. Accordingly, the order/judgment dated 16.08.2024 passed by learned Single Judge in W.P.(S) No. 4477 of 2019 is hereby quashed and set aside.
60. Now, the question arises as to whether the writ petition be remitted before the learned Single Judge for
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adjudication of the matter on merit afresh or this Court is competent enough to decide the issue on merit?
61. Admittedly, the writ petitioner is facing the trauma of departmental proceeding since the year 1991 i.e., from the date of initiation of departmental proceeding and since then it has lapsed about 33 years. Further, the writ petitioner-appellant in the meanwhile has also retired from service on attaining the age of superannuation.
62. The law is well-settled that the intra-court appeal is in furtherance of the writ proceeding and it is not to be taken up as a regular appeal. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Baddula Lakshmaiah v. Sri. Anjaneya Swami Temple, (1996) 3 SCC 52. Relevant paragraph of the said judgment reads as under:
"2. ... A letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in execise of the same jurisdiction as was vested in the Single Bench. ..."
63. This Court, therefore, is of the view that since the court of intra-court appeal is in furtherance of the writ proceeding, as has been held by Hon‟ble Apex Court in the case of Baddula Lakshmaiah v. Sri. Anjaneya Swami Temple (supra), the issue needs to be decided on merit i.e., regarding the propriety of the impugned order
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of punishment passed by the disciplinary authority dated 22.09.1997 and appellate order dated 05.06.2006, by which two annual increments have been directed to be withheld with cumulative effect, in the intra-court appeal itself instead of remitting the matter back to learned Single Judge to decide the matter on merit.
64. This Court, therefore, in order to decide the matter on merit, has again gone into the factual aspect of the matter wherefrom it is evident that in this case case two enquiry proceedings were initiated against the appellant for the same set of charge.
65. In the first enquiry, the enquiry officer has not found any of the charges proved. But disagreeing with the enquiry report, the disciplinary authority asked other enquiry officer to re-enquire the matter, in turn, the enquiry officer submitted the report holding charge nos. 1 and 2 not proved whereas in respect of charge no. 3, the appellant was warned to be vigilant.
66. Thereafter, vide office order dated 13.02.1992, the respondent no. 4 imposed a punishment of withholding of five annual increments and denied for the salary of the period of suspension, against which, the appellant preferred departmental appeal, which was dismissed vide order dated 07.09.1993.
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67. Being aggrieved with the order passed by the disciplinary authority as well as the appellate authority, the appellant invoked the writ jurisdiction of this Court by filing CWJC No. 1953 of 1994(R), which was dismissed, against which the appellant preferred intra- court appeal, being LPA. No. 288 of 1995, which was allowed vide order dated 10.07.1996 and the matter was remitted to the disciplinary authority asking him to start the proceeding afresh from the stage of enquiry report after providing opportunity of being heard to the appellant and pass a reasoned order.
68. Accordingly, the respondent no. 3 modified the order of punishment vide order dated 22.09.1997 and reduced the same to withholding of two annual increments and salary during the period of suspension, against which the petitioner preferred departmental appeal which was dismissed vide order dated 05.06.2006.
69. Herein, it is pertinent to note that general principle while disagreeing with the enquiry report is that show cause notice is required to be issued with reasons for such disagreement, but it was not followed and further opportunity of hearing is required to be afforded to the delinquent but that principle has also not been followed, therefore the Co-ordinate Division Bench remitted the said matter to the disciplinary authority asking to start
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the proceeding afresh from the stage of enquiry report after providing opportunity of being heard to the appellant and pass a reasoned order.
70. In the disciplinary proceeding, the power of enquiry officer can also be exercised by the disciplinary authority or such power can be delegated to the enquiry officer. If the power of enquiry officer is also being exercised by the disciplinary authority, then there is no question of giving opportunity of hearing by the disciplinary authority before passing the order of punishment. But if the disciplinary authority is delegating the power to conduct the enquiry to an officer said to be enquiry officer and if any finding is being recorded by the enquiry officer and on receipt of it the disciplinary authority can accept or reject it. In case of acceptance the order of punishment is to be passed and in such circumstances, if requires the second show cause notice is to be issued to the delinquent employee. But if the enquiry officer has found none of the charges proved then in such circumstances the disciplinary authority can impose punishment but as per the requirement after giving opportunity to the delinquent employee with the difference of opinion so recorded by the disciplinary authority which is required to be given in black and while along with the specific reason(s) and the same is to be provided to the
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delinquent employee so that he may give reply in his defence, thereafter, only the order of punishment is to be passed.
71. It needs to refer herein that the day when the order of punishment dated 22.09.1997 was passed the said law was not pronounced by Hon‟ble Apex Court rather the same was passed by Hon‟ble Apex Court in the case of Punjab National Bank & Ors Vs. Kunj Behari Misra [(1998) 7 SCC 84], wherein it has been held as under:
17. These observations are clearly in tune with the observations in Bimal Kumar Pandit case [AIR 1963 SC 1612 : (1964) 2 SCR 1 : (1963) 1 LLJ 295] quoted earlier and would be applicable at the first stage itself. The aforesaid passages clearly bring out the necessity of the authority which is to finally record an adverse finding to give a hearing to the delinquent officer. If the enquiry officer had given an adverse finding, as per Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] the first stage required an opportunity to be given to the employee to represent to the disciplinary authority, even when an earlier opportunity had been granted to them by the enquiry officer. It will not stand to reason that when the finding in favour of the delinquent officers is proposed to be overturned by the disciplinary authority then no opportunity should be granted. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings.
The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When the enquiring officer holds the charges to be proved, then that report has to be given to the delinquent officer who can make a representation before the disciplinary authority takes further action which may be prejudicial
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to the delinquent officer. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions, then that authority which is deciding against the delinquent officer must give him an opportunity of being heard for otherwise he would be condemned unheard. In departmental proceedings, what is of ultimate importance is the finding of the disciplinary authority.
72. In the instant case the disciplinary authority has imposed the punishment of five annual increments upon the petitioner even though the charge was not found to be proved and further no difference of opinion has been shown by giving reason of difference, which was the reason for quashing of the order of punishment in the intra-court appeal being LPA. No. 288 of 1995. Subsequent thereto, the second enquiry was initiated in which two of the charges have not been found to be proved whereas charge no. 3 has been found to be proved. The enquiry officer has passed fresh order inflicting stoppage of two annual increments with cumulative effect vide order dated 22.09.1997, which was challenged by way of filing departmental appeal that was dismissed vide appellate order dated 05.06.2006.
73. The writ petition aggrieved thereof again invoked the writ jurisdiction of this Court conferred under Article 226 of the Constitution of India by filing writ petition being W.P.(S) No. 4477 of 2019, which was dismissed.
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74. This Court before entering into the legality and propriety of the order of punishment needs to refer herein that the departmental proceeding is to be initiated against the delinquent employee if there is any misconduct.
75. Misconduct has been defined that any conduct contrary to the assigned duty/conduct if have been performed, the disciplinary authority has got right to initiate departmental proceeding to deal with such employee.
76. The Hon'ble Apex Court in the case of State of Punjab and Ors. Vrs. Ram Singh Ex-Constable, reported in (1992) 4 SCC 5, has interpreted the word 'misconduct'. The relevant paragraphs thereof are being referred hereinbelow for ready reference:-
""5. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, wilful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behavior by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
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P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
6. Thus, it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be
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construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. --."
77. Further, the Hon‟ble Apex Court in the case of M.M. Malhotra v. Union of India, (2005) 8 SCC 351 has observed that misconduct must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character, for ready reference the relevant paragraph are being quoted as under:
17. The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.
19. In Baldev Singh Gandhi v. State of Punjab [(2002) 3 SCC 667] it was held that the expression "misconduct"
means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.
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20. Similarly, in State of Punjab v. Ram Singh Ex. Constable [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : AIR 1992 SC 2188] it was held that the term "misconduct" may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
21. "Misconduct" as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) "comprised positive acts and not mere neglects or failures". The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is:"A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness."
78. Thus, it is evident from the aforesaid proposition laid down that the misconduct will be said to have committed by the public servant, if any conduct which is contrary to the discipline would be committed in course of discharge of duty. The Hon‟ble Apex Court further held that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty.
79. The reference of the aforesaid judgment has been given herein for the particular purpose since the appellant has raised the ground in his reply filed in defence that he was not having assigned duty to either
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purchase cattle or disburse in favour of beneficiaries rather the writ petitioner has made out the defence that in the capacity of Jan Sewak his only duty was to collect the form of the beneficiaries and submit it to the office of Block Development Officer.
80. This Court has posed a specific question to the learned State Counsel that what is the basis of framing of charge no. 3 against the petitioner while working as Jan Sewak and whether he failed in discharging the duty said to be assigned in his favour.
81. Learned State Counsel has fair enough to submit that there is no such duty said to be assigned in favour of the petitioner [Jan Sewak] as given in charge no. 3. Such submission has been made based upon the original record available with him.
82. The question therefore would be that if such duty has not been assigned to the delinquent i.e., for disbursal of money from the bank or to purchase the cattle for the purpose of its distribution amongst the beneficiaries, then how can it be said to be misconduct so far discharge of duty in favour of petitioner is concerned.
83. The law has already been settled, as has been referred hereinabove, that any duty contrary to duty will only be said to be misconduct and when no duty has been assigned either for disbursal of the money from the
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bank or to purchase the cattle for the purpose of its distribution amongst the beneficiaries, since the writ petitioner was not the member of the purchase committee rather the Block Development Officers and others were the members of purchase committee which has also been found from the original record, then such charge cannot be said to be charge in the eye of law so far as the discharge of duty of present petitioner in the capacity of VLW is concerned.
84. For this purpose, we have gone through the original record minutely and found that there is no reference of duty said to be assigned in favour of petitioner either for disbursal of the money from the bank or to purchase the cattle for the purpose of its distribution amongst the beneficiaries rather it was vested upon the purchase committee as per the government norms. There is no allegation against the petitioner, as per the memo of charge, and no material has come that any irregularity has been committed by the petitioner in collecting application for extending the benefit of government scheme rather charge no. 1 and 2 which pertains to the irregularity said to be committed in filling up of the form has been found to be not proved. For ready reference, extract of the enquiry report is quoted as under
"xxxx xxxx xxxx
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vius c;ku ds dkj.k i`Nk dh lEiqf"V djrs gq, crk;k gS fd gslkx xzke esa rsjg ¼13½ O;fDr;ksa dks Hkwfe leryhdj.k ds fy;s vuqnku feyk gSA yxHkx 15] 20 ,dM+ tehu ij dk;Z gqvk FkkA mudk dk;Z ns[kus ds ckn gha _.k ,oa vuqnku ds fy, vuq'kalk fd;k FkkA tk¡p izfronsu ns[kus ls Li'V gksrk gS fd tk¡p vf/kdkjh us cSad ds dkxtkrksa ds vk/kkj ij gh vkjksi mBk;k gSA mUgksua s LFky fujh{k.k ugha fd;k FkkA vkjksi dh lEiqf"V ugha gksrh gSA vkjksi la[;k rhu ds ckjs esa mUgksua s dkj.k i`Nk esa crk;k gS fd tulsod dk dke ifjlEifr forj.k ds fy;s vkosnu i= Hkjuk gSA iz[k.M }kjk bu vkosnu i=ksa dks cSad esa Hkst fn;k tkrk gSA cSad ls Lohd`r iwoZ MksdqeUs Vs'ku ds ckn gh eos'kh [kjhnh tkrh gSA tulsod Ø; lfefr ds lnL; Hkh ugha gSA eos"kh [kjhnk x;k vFkok ugha blds fy;s Ø; lfefr dks ftEesokj Bgjk;k tkuk pkfg;sA vius c;ku esa Hkh mUgksua s bldh lEiqf'V djrs gq, crk;k gS fd eos'kh [kjhnk x;k gSA tulsod ds ukrs iapk;r ds yksxksa dk vkbZ0vkj0Mh0ih0] esa eos'kh dh [kjhn djus&djkus esa mudh dksbZ ftEesokjh ugha gSA bl dk;ZØe esa "kq: ls vUr rd mudk lfEefyr jguk vko';d ugha gSA tulsod dk mi;qZDr C;ku rFkk fopkj Lohdkj ;ksX; ugha izrhr gksrk gSA vkbZ0vkj0Mh0ih0] ds varxZr tulsod dk egRoiw.kZ Hkwfedk gSA ;g ckr lgh gS fd og Ø; lfefr dk lnL; ugha gSA ysfdu vkjEHk ls vUr rd bl dk;ZØe esa mudk lfEefyr jguk vko';d ekuk tk ldrk gSA blds fy;s mlls mEehn dh tk ldrh gS fd eos'kh dk Ø; ds lEcU/k esa mudks iw.kZ tkudkjh jguh pkfg;sA ;fn Ø; esa fdlh rjg dh xM+cM+h ik;h tkrh gS rks vizR;{k :i ls budk Hkh lk>knkjh ekuk tk ldrk gSA mi;qZDr rF;ksa ls Li'V gksrk gS fd vkjksi la[;k 1 ,oa 2 dh lEiqf'V ugha gksrh gSA vkjksi la[;k rhu ds lEcU/k esa mUgsa Hkfo'; esa lrdZ jgus ds fy;s psrkouh fn;k tk ldrk gSA vkns'kkFkZ %& gLrk{kj ftyk fodkl inkf/kdkjh] xqeykA mik;qDr d`I;k lafpdk ds i`'V la[;k&1] 2] 3 ij ftyk fodkl inkf/kdkjh dh fVIi.kh dk voyksdu djsAa Jh fnyhi dqekj lkgq] tulsod] jk;Mhg ds fo:) lesfdr xzkeh.k fodkl dk;ZØe ds lapkyu
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esa xM+cM+h ds Øe esa lEefyr jgus ds vkjksi ds dkj.k foHkkxh; dkjZokbZ lapkfyr fd;k x;kA tc Jh lkgq jk;Mhg iz[k.M esa inLFkkfir Fks rks ogk¡ eos'kh Ø; esa cSad rFkk eos"kh O;kikjh ij vkjksi yxkrs gq, mu ij Hkh foHkkxh; dkjZokbZ pykbZ xbZ FkhA tk¡p inkf/kdkjh us lacfa /kr tulsod dks bl dk;ZØe ds lapkyu esa foHkkxh; nkf;Ro ugha fuHkkus ds dkj.k psrkouh nsus dk lq>ko fn;k gSA vr% ;fn ekU; gks rks mudh lsok iqfLrdk esa psrkouh vafdr djus dk vkns"k fn;k tk ldrk gSA gLrk{kj mi fodkl vk;qDr] xqeyk
85. Thus, it is evident that it has been admitted by the disciplinary authority that the duty of Jan Sewak was to collect the form and after approval from the Bank the cattle was to be purchased. Further, it has also been admitted by the disciplinary authority that the petitioner was not the member of Purchase Committee, however, it is expected that he should have knowledge of purchase of cattle and if any irregularity is found then indirectly the Jan Sewak can be held responsible. But contrary to the duty assigned, as admitted by the administrative authority, charge no. 3 has been framed against the writ petitioner-appellant and basis upon which, only charge no. 3 has been found to be proved and order of punishment has been imposed.
86. We are conscious of the fact of jurisdiction conferred under Article 226 of the Constitution of India showing interference with the order of punishment if passed by the administrative authorities in discharge of the
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disciplinary authority. Further the scope of power of judicial review is very limited and to the extent that if there is perversity in the finding recorded by the enquiry officer or there is violation of principles of natural justice then only the decision taken by the disciplinary/administrative authority can be interfered with otherwise not. If finding of the enquiry officer is based upon the cogent evident then the High Court in exercise of power conferred under Article 226 of the Constitution of India cannot be supposed to re- apprise the evidence. The aforesaid proposition is well settled , however, the Hon'ble Apex Court has also carved out the guideline to which nature of cases, the interference is to be shown by the High Court in exercise of power conferred under Article 226 of Constitution of India and in which cases, the interference is not permissible, reference in this regard be made to the judgment rendered in the case of Union of India v. P. Gunasekaran (2015) 2 SCC 610, relevant paragraph 12 & 13 of the aforesaid judgment is quoted as under:
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a
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second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
87. It is thus evident that it is not that there is absolute bar under Article 226 of the Constitution of India in
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showing interference with the administrative decision of the disciplinary authority rather the same can be interfered with depending upon the facts and circumstances the particular case is coming under the guideline formulated by Hon'ble Apex Court in Union of India v. P. Gunasekaran (surpa) and others cases, as referred hereinabove, or not.
88. Further, the Hon'ble Apex Court in the judgment rendered in Allahabad Bank v. Krishna Narayan Tewari [(2017) 2 SCC 308]; wherein the law has been settled regarding the scope of judicial review which has been held to be very limited but it has been laid down therein that it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever, the writ Court would be justified, if not duty bound to examine the matter and grant relief in appropriate cases, for ready reference, relevant paragraph 7 of the judgment is quoted as under:
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-
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bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority."
89. This Court is now proceeding to examine the factual aspect of the given case. It is evident from the record that even the reply in the defence, which has been given by the petitioner has not been taken into consideration rather no finding has been given with respect to the
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nature of duty which was assigned to him in course of discharge of official duty in the capacity of Jan Sewak.
90. It is settled proposition of law that if any defence is being sought for from the delinquent employee the same is required to be properly considered either way then it will be said that the reply has been taken into consideration.
91. Further, the consideration does not mean a mere formality, rather, if any document or stand has been taken in defence, it is the bounden duty of the authority concerned to discuss and while accepting or refusing, the same must be based upon the well assigned reason, otherwise, it cannot be said to be a consideration in the eyes of law since consideration means active application of mind which can only be said to be there if the document/defence will be well considered by the authority concerned, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Chairman, Life Insurance Corporation of India v. A. Masilamani, (2013) 6 SCC 530 wherein at paragraph 19 it has been held that the term "consider" postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record, for ready
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reference the relevant paragraph of the aforesaid judgment is being quoted as under:
"19. The word „consider‟ is of great significance. The dictionary meaning of the same is, „to think over‟, „to regard as‟, or „deem to be‟. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term „consider‟ postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order."
92. From the interpretation made by the Hon'ble Supreme Court with respect to meaning of "consideration", it would be evident that consideration can only be said to be proper consideration if there is active application of mind.
93. In the instant case it is evident that the defence has been given by the petitioner that he has not been assigned the duty of distribution of cattle or distribution of cash amongst the beneficiaries rather the duty was assigned to collect the form from the beneficiaries for getting such benefit and submit the same to the office of Block Development Officer but there is no finding to that effect that as whether the duty of distribution of cattle or distribution of cash amongst the beneficiaries was
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assigned to the petitioner. Hence, this Court is of the view that the defence reply has not been considered.
94. Furthermore, the law is well settled that the order of punishment can be passed in the department proceeding on the basis of preponderance of probability. But it is not that merely on the basis of preponderance, the order of punishment is to be passed, rather, even in coming to the conclusion with respect to the issue of preponderance, the cogent evidence is to be there, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Karnataka v. Umesh, (2022) 6 SCC 563, wherein, at paragraphs-18 & 19 it has been held that mere on probabilities, no punishment can be imposed in the departmental proceeding. For ready reference, the same is being referred as under:--
"18. In the course of the submissions, the respondents placed reliance on the decision in Union of India v. Gyan Chand Chattar [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78]. In that case, six charges were framed against the respondent. One of the charges was that he demanded a commission of 1% for paying the railway staff. The enquiry officer found all the six charges proved. The disciplinary authority agreed with those findings and imposed the punishment of reversion to a lower rank. Allowing the petition under Article 226 of the Constitution, the High Court observed that there was no evidence to hold that he was guilty of the charge of bribery since the witnesses only said that the motive/reason for not making the payment could be
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the expectation of a commission amount. The respondent placed reliance on the following passages from the decision : (SCC pp. 85 & 87, paras 21 & 31) "21. Such a serious charge of corruption requires to be proved to the hilt as it brings both civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasicriminal nature was required to be proved beyond the shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. ... wherein it has been held that the punishment should always be proportionate to the gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences."
19. The observations in para 21 of Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78] are not the ratio decidendi of the case. These observations were made while discussing the judgment [Union of India v. Gyan Chand Chattar, 2002 SCC OnLine Guj 548] of the High Court. The ratio of the judgment emerges in the subsequent passages of the judgment, where the test of relevant material and compliance with natural justice as laid down in Rattan Singh [State of Haryana v. Rattan Singh, (1977) 2 SCC 491] was reiterated : (Gyan Chand Chattar case [Union of India v. Gyan Chand Chattar, (2009) 12 SCC 78], SCC p. 88, paras 35-36) "35. ... an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry
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has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.
36. In fact, initiation of the enquiry against the respondent appears to be the outcome of anguish of superior officers as there had been an agitation by the railway staff demanding the payment of pay and allowances and they detained the train illegally and there has been too much hue and cry for several hours on the railway station. The enquiry officer has taken into consideration the nonexisting material and failed to consider the relevant material and finding of all facts recorded by him cannot be sustained in the eye of the law." (emphasis supplied) On the charge of corruption, the Court observed in the above decision that there was no relevant material to sustain the conviction of the respondent since there was only hearsay evidence where the witnesses assumed that the motive for not paying the railway staff "could be"
corruption. Therefore, the standard that was applied by the Court for determining the validity of the departmental proceedings was whether (i) there was relevant material for arriving at the finding; and (ii) the principles of natural justice were complied with."
95. Further, in the case of High Court of Judicature at Bombay v. Uday Singh, (1997) 5 SCC 129, the law has been laid down that in the departmental proceeding the cogent evidence is required to be there for inflicting
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punishment. For ready reference, paragraph-10 is being referred as under:
"-------- the doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct-------."
96. Applying the aforesaid principle, this Court is of the view that it is a case where interference is required to be shown in exercise of power conferred under Article 226 of the Constitution of India.
97. Accordingly, the order passed by the disciplinary authority dated 22.09.1997 and appellate order dated 05.06.2006 are hereby quashed and aside. The consequence will follow.
98. At this stage, learned State counsel has submitted that arrears of difference of salary are to be restricted only for the period of three years. Such submission has been made based upon the law laid down in the case of Union of India & Ors Vs. Tarsem Singh [(2008) 8 SCC 648].
99. This Court has considered the said judgment. The law is well settled that the applicability of the judgment is to be tested on the basis of facts governing the case individually as per the ratio laid down by Hon‟ble Apex Court in the case of Dr. Subramanian Swamy vs. State of Tamil Nadu &Ors reported in (2014) 5 SCC 75. For
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ready reference the relevant of the aforesaid judgment is being quoted as under:
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
100. The factual aspect involved in the case of Union of India & Ors Vs. Tarsem Singh (supra) is that the said Tarsem Singh approached the Court of law after16 years before the court of law. The facts involved in that case was that said Tarsem Singh while working in the Indian Army was invalidated out of army service, in medical category, on 13-11-1983. But, he approached the High Court in 1999 seeking a direction to the appellants to pay him disability pension. The learned Single Judge by order dated 06.12.2000 allowed the writ petition and directed the appellants to grant him disability pension at the rates permissible. Insofar as arrears are concerned, the relief was restricted to thirty-eight months prior to the filing of the writ petition. The employee however being not satisfied filed a letters patent appeal which was allowed vide dated 06.12.2006.
101. The Division Bench held that the respondent was entitled to disability pension from the date it fell due,
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and it should not be restricted to a period of three years and two months prior to the filing of the writ petition. By a subsequent modification order dated 23-2-2007, the Division Bench also granted interest on the arrears at the rate of 6% per annum.
102. The said judgment and order of the Division Bench was challenged before the Hon‟ble Apex Court by filing appeal on the question that whether the High Court was justified in directing payment of arrears for a period of 16 years instead of restricting it to three years. The appeal was allowed directing payment of disability pension from the date it fell due, was set aside.
103. The factual aspect which has been taken by the Hon'ble Apex Court in that case that even though the appellant of the said case was conscious with his legal right of getting the disability pension but he has invoked the jurisdiction of the Court after the reasonable period but this Court by taking into consideration the mandate of the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, has passed the order on disability pension but the litigant has been imposed with arrears of salary only for the period of three years.
104. There is no dispute that if there is delay and laches then the government exchequer is not to be put on
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burden. But as has been discussed hereinabove that the applicability of judgment depends upon the facts and circumstances of case.
105. Herein, the fact which has been dealt with in detail herein above and this Court has come to the finding that the basis of charge itself has been found to be illegal based upon the discussion made hereinabove. The moment charge itself is found to be illegal then the question would be that why the concerned delinquent will be allowed to suffer. The disciplinary authority being the competent authority is to initiate a departmental proceeding by applying all consciously and applicability of mind.
106. The law if provides power upon the disciplinary authority it does not mean that the power is to be utilized arbitrarily and without any rationale and cogent reason(s). The fact about very genesis of charge regarding its veracity which has been dealt with in detail hereinabove that the duty of drawing money from the bank or purchase of the cattle has never been vested upon the petitioner, which fact has been admitted by the learned State counsel after going through the record.
107. Then the question is that what is the basis of framing such charge i.e., charge no. 3, which only was found to be proved. If, the duty has not been assigned, to
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the appellant/petitioner and this Court has already found that the said charge was wrongly framed then in such circumstances if the entitlement of the writ petitioner will be restricted for the three years then a wrong doer i.e., the authority concerned will be given advantage of its own wrong.
108. The law is well settled that a wrong doer cannot be allowed to take advantage of its own wrong, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Kusheshwar Prasad Singh v. State of Bihar, (2007) 11 SCC 447 wherein it has been held that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong. For ready reference paragraphs 15 and 16 are being quoted hereunder as:--
"15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127] the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue
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advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong".
109. Similar view has been reiterated by Hon'ble Apex Court in the case of Indore Development Authority v. Shailendra (Dead) through legal representatives, (2018) 3 SCC 412 at paragraph 143 which is being quoted hereunder as:
"143. When once the court has restrained the State authorities to take possession, or to maintain status quo they cannot pay the amount or do anything further, as such the consequences of interim orders cannot be used against the State. It is basic principle that when a party is disabled to perform a duty and it is not possible for him to perform a duty, is a good excuse. It is a settled proposition that one cannot be permitted to take
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advantage of his own wrong. The doctrine commodum ex injuria sua nemo habere debet means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. A litigant may be right or wrong. Normally merit of lis is to be seen on date of institution. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intends to give redress to the just causes; at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics."
110. Thus, it is evident from the factual aspect of the case of Union of India & Ors Vs. Tarsem Singh (supra) that it is with respect to entitlement of disability pension while the factual aspect of the present case is framing of the wrong charge, which is exclusively under the domain of disciplinary/appointing authority. The disciplinary/ appointing authority when conferred with the power to initiate the departmental proceeding to deal with the charge of dereliction in duty or commission of misconduct, then it is the accountability of the disciplinary/appointing authority to frame the charge by taking into consideration the very irregularity said to be committed by one or the other employee. The power does not mean that power is to be exercised arbitrarily, which is the factual aspect of the present case. Hence, factual aspect of the present case is different to that of Union of India & Ors Vs. Tarsem Singh (supra).
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111. Therefore, this Court is of the view that in the facts and circumstances of the instant case, the judgment rendered by Hon‟ble Apex Court in the case of Union of India & Ors Vs. Tarsem Singh (supra) is not applicable, as such the contention of learned State counsel that arrears of difference of salary are to be restricted only for the period of three years only to the petitioner/appellant is hereby rejected.
112. With the aforesaid observations and directions, the instant intra-court appeal stands allowed.
113. The original record, which was produced for perusal of the Court is returned to the State counsel for its onward transmission to the authority concerned.
114. Pending Interlocutory Application, if any, stands disposed of.
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.) Alankar / A.F.R.