Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Ors vs Mohammad Syed Khan on 17 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 130 of 2010 IA No. 225 of 2010 State of J&K and ors Petitioners Mohammad Syed Khan Respondents !Mr. A. M. Magray, Advocate Mr. Shah Aamir, Advocate ^Mr. M. S. Reshi, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:17/07/2012 : J U D G M E N T :
M. M. Kumar, CJ
1. The State is in appeal against the judgment and order dated 30.04.2010 rendered by the learned Single Judge of this Court while allowing SWP no. 232/2008. Accordingly the learned Single Judge has quashed Order No. 369 of 1990 dated 17.05.1990 removing the writ petitioner-respondent from service by dispensing with the regular departmental enquiry.
FACTS:
2. In order to put the controversy in its right perspective it would be necessary to notice some facts. The writ petitioner-respondent was appointed as a Constable on 15.03.1984. He claimed to have proceeded on ten days casual leave w.e.f. 17.05.1990. On the expiry of leave on 27.05.1990 he moved an application before the Competent Authority, asserting that he had left an application for station leave but in daily register he was shown absent. Therefore, he requested that he may be permitted to mark his presence. According to the allegations, no response was sent and he served a legal notice through his Advocate on 27.07.1995. In response to the legal notice, appellant no.3 in his communication to appellant no.4 informed that the writ petitioner had already been removed from service under Article 335 of the J&K Police Manual without giving him a show cause notice. It was also indicated that issuance of show cause notice was a mandatory requirement and the order may not stand the test of law before the Court. Likewise, the appellant no.3 also sent a communication to appellant no.4 on 05.04.1996 in the same terms and with the same advice. Views of the Learned Single Judge
3. The writ petitioner-respondent was able to persuade the learned Single Judge to ignore the laches and delay. The learned Single Judge sustained his plea that enquiry could not be dispensed with. Accordingly, the order of dismissal was set aside. The view of the learned Single Judge with regard to laches is discernible from the following para, which reads thus:-
The question of latches looses significance which the same are pitted against substantial justice. The latches loose significance in the instant case because of two counts, first the petitioner on 27.5.1990 had moved a proper application before the respondent No. 5 but no response was given. It is only when notice was served through Advocate on 26.7.1995, he came to know that the order of removal has been passed and immediately filed the civil suit.
The filling of the civil suit was absolutely on the legal advice. When it took long time with no expectation of its result in sight in near future, the petitioner has been advised to file the writ petition as there was no question of fact in dispute. Legal position was involved which had infringed his rights and same was available to be enforced by having recourse to the writ jurisdiction of this Court. In other words the acts of the petitioner in pursuing the matter by no standards can be said to be indolent which indolence could stand in his way in seeking the relief. It is true that during the pendency of the suit writ petition has been filed but said fact has not been concealed. Same has been made mention of in the memo of the petition. The contents of the withdrawal application as filed before the Court of Munsiff, available on the record, would indicate that the petitioner in view of the prolonged delay, on right advice, has withdrawn the suit. The same position cannot be said to be with any ulterior motive so as to blame the conduct of the petitioner. The petition as such cannot be termed to be hit by latches.
4. A perusal of the aforesaid para of the impugned judgment would show that the learned Single Judge has been taken over by two reasons for condoning the delay. Firstly the learned Single Judge held that the writ petitioner-respondent had moved an application before the Commandant-appellant no.4 on 27.05.1990 to which no response was given. The second ground is service of legal notice on 27.07.1995 and acquisition of knowledge of termination order which was disclosed in the reply to the legal notice and the fact that thereafter a civil suit was filed. The learned Single Judge then proceeded to consider the question whether the order of removal could have been passed by dispensing with the enquiry and the view expressed by the learned Single Judge is available in the following paras:-
The removal of the Constable from service is permissible but for such removal the procedure as it prescribed has to be followed. Rule 359 (11) (2) of the J&K Police Manual provides that no police officer shall be dismissed, removed or reduced in rank until he has given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him excepting certain situations as mentioned in clause (a), (b) and (c) to sub-rule 2 of Rule 11 of Rule 359 which does not apply to the petitioner.
Admittedly no show cause notice has been issued to the petitioner, resultantly the order impugned is bad, so same is liable to be quashed, as such, is quashed.
5. We have heard learned counsel for the parties at a considerable length and are of the view that the judgment of the learned Single Judge would be unsustainable.
CONCLUSION
6. In order to appreciate the contention of delay and laches advanced by Mr. A.M.Magray, learned Sr. Additional Advocate General, it would be necessary to advert to the pleadings in SWP no. 232/2008, which was filed on 28.02.2008. The relevant paras of pleadings which need to be considered are para no. 1 (c), 3, 4 and 5, which reads as under:-
1 (c) The petitioner by way of the present Writ Petition is inter alia seeking direction to the respondents to quash the impugned order no. 369 of 1990 dated 17.05.1990, whereby the service of the petitioner came be terminated and he was removed from the service of the respondent Department without holding any Departmental Enquiry. A copy of the said impugned order dated 17.05.1990 is annexed hereto and marked as Annexure P-1.
03. On 17.05.1990, the impugned order No. 369 of 1990 came to be issued by the respondent no. 5, thereby removing the petitioner from the service without holding any Departmental Enquiry as envisaged under various provisions of J&K Police Manual. It is noteworthy that the date of issuance of the said impugned order has been wrongly shown as 17.05.1995, which seems to be due to inadvertent clerical mistake, whereas the said impugned order has been raised on 17.05.1990 and it is further noteworthy that in the said impugned order dated 17.05.1990, the petitioner has been wrongly shown to have absented himself from 04.01.1990, whereas he had proceeded towards his home on ten days leave on 17.05.1990 after proper sanction was granted in his favour by the respondent no. 5. A copy of the said impugned order dated 17.05.1990, highlighting the above said facts, is annexed heretofore and marked as Annexure P-1, supra.
04. On 27.05.1990 the petitioner made a representation to the respondent no. 5 that he had proceeded on sanctioned leave & he has been wrongly shown in Roznamcha to have absented himself from job & proceeded towards his home without any sanctioned leave. Thereafter the petitioner made several other representations before the respondents and left no stone unturned to be allowed to rejoin the respondent department and to resume his duties. A Copy of the said representation dated 27.05.1990, highlighting the above said facts, is annexed hereto and marked as AnnexuxreP-2.
05. On 24.07.1995, the petitioner made an application before the respondent no. 2 thereby, inter alia, requesting him to issue a copy of the basic appointment order of the petitioner, order of discharge from service and other relevant record & documents pertaining to the service of the petitioner, but the said documents were never made available to the petitioner.
7. The corresponding paras of the reply filed by the appellant-State reads as under:-
1. In reply to para 1 of the writ petition, it is submitted that the petitioner was appointed as Constable in J&K Armed Police and joined in JKAP 6th Bn on 13.01.1986. The petitioner absented unauthorisedly from his legitimate duties on 04.01.1990. He was directed so many times to report back for duties and to face departmental enquiry, but he failed to do so and continuously absented from duty. He did not inform his superiors regarding his whereabouts and as such he was removed from service for his prolonged absence.
3. Para 3 of the writ petition is already applied hereinabove at para 1.
4. In reply to para 4, it is submitted that the petitioner after deserting from the department did not bother to resume his duties and also did not inform the office with regard to his whereabouts. The question of submitting representation does not arise at all. Rest of the averments stand replied in the preceding.
5. In reply to para 5, it is submitted that the petitioner never appeared before the respondent no. 5 i.e., Commandant JKAP 6th Bn in person or through an application for obtaining copy of removal order, which in question is under challenge through the medium of the present petition.
8. The stand taken by the appellant is categorical. It has been stated that the writ petitioner-respondent absented himself unauthorisedly from his duties on 04.01.1990 and he was directed so many times to report back for duty and to face the departmental enquiry but he continued to absent himself. He did not inform his superiors regarding his whereabouts and location. As such he was removed from service for his prolonged absence vide order no. 369 of 1990 dated 17.05.1990. The order of removal was admittedly passed on 17.05.1990 and the writ petition was filed in the year 2008. It is unbelievable that for 18 years an employee would not know the reasons of his removal from service or would not be able to secure a copy of the order. Even if some of the explanation given by the writ petitioner-respondent is taken into account the same cannot be considered sufficient. For example in ground D of his writ petition he stated that he was never put under suspension before his removal and the Deputy Inspector General of Police was asked to look into the matter in the year 1996. That will not give the writ petitioner- respondent a licence to file the petition after unexplained delay of 12 years.
9. By a catena of judgments it is now well settled that the maximum period for filing a writ petition cannot be more than the period prescribed for filing a civil suit. In case of State of Madhya Pradesh and anr v. Bhailal Bhai AIR 1964 SC 1006 a 5-Judge Constitution Bench of Honble the Supreme Court has authoritatively held that the maximum period fixed for filing a suit in a Civil Court must also be read as a reasonable period for filing the writ petition. The aforesaid view is discernible from a bare perusal of para no. 21, which deserves to be set out in ex tenso:-
Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.(Emphasis added)
10. The aforesaid view has been followed in a catena of judgments, including State of Jharkhand and ors v. K.N.Farms and Industries Pvt. Ltd. (2012) 5 SCC 297, R & M Trust v. Koramangala Residents Vigilance Group and ors (2005) 3 SCC 91 and Leelawanti and ors v. State of Haryana and ors (2012) 1 SCC 66.
11. It is further appropriate to mention that a 7-Judge Bench of Honble the Supreme Court in case of S. S. Rathore v. State of Madhya Pradesh AIR 1990 SC 10 has clarified the position of law that filing of memorial or representation are not to be taken into consideration in the matter of reckoning the period of limitation. In other words, the non-statutory representation would not extend the period of limitation.
12. Learned counsel for the writ petitioner-respondent has supported the order passed by the learned Single Judge. However the reasons given by the learned Single Judge are totally unsustainable in the eyes of law. The filing of representation has no roots in statutory provisions and would not extend the period of limitation. The aforesaid issue was answered in the negative by Honble the Supreme Court in S. S. Rathores case as has been already noticed in the preceding para. Likewise, the filing of civil suit would also not extend the period of limitation especially when he suit itself was filed after five years. Moreover, the factum of filing the suit, although disclosed in ground H, but it was admitted that the suit was filed in the year 1995 and was still pending when the writ petition was filed in the year 2008. The suit of the writ petitioner-respondent was itself time barred as Article 113 of the Limitation Act provides for maximum time limit of three years to challenge the termination order. The other argument that a void order does not need to be challenged has been answered by Honble the Supreme Court in para no. 7 and 8 of the judgment rendered in case of State of Punjab v. Gurdev Singh (1991)4 SCC 1. The aforesaid paras reads as under:-
7. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside.
The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not quash so as to produce a new state of affairs.
8. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or court
13. The view taken by Honble the Supreme Court in State of Madhya Pradesh v. Syed Qamarali 1967 S.L.R (SC) 228 has been examined in detail in Gurdev Singhs case (supra) and it has been held that a suit for declaration by a dismissed employee, on the ground that his dismissal is void, is governed by Article 120 of the Limitation Act and placed reliance on the judgment of the Allahabad High Court in Jagdish Prasad Mathur and ors v. United Provinces Government AIR 1956 Allahabad 114 and also approved the view taken by Oudh Chief Court in Abdul Vakil v. Secretary of State, AIR 1943 Oudh 368. Then it was held that a suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, is governed by Article 113 of the Limitation Act. The decision to the contrary rendered by Punjab and Haryana High Court in cases of State of Punjab v. Ajit Singh (1988) 1 SLR 96 and State of Punjab v. Ram Singh (1986) 3 SLR 379 were overruled. Accordingly, the judgment in Syed Qamaralis case has been considerably diluted and there is no rule of law laid down that a void order is not required to be challenged and the provisions of the Limitation Act would not apply to such an order presuming that the order dated 17.05.1990 suffered from some illegality.
14. Accordingly, we do not find any substance in the submissions made by Mr. M. S. Reshi, learned counsel for the writ petitioner- respondent.
15. As a sequel to the above discussions, the appeal is allowed. The judgment and directions issued by the learned Single Judge dated 30.04.2010 are set aside. The writ petition is held to be time barred and thus is not maintainable.
16. Accordingly, SWP no. 232/2008 is dismissed and order dated 17.05.1990 is up held.
17. No costs.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Srinagar
17.07.2012
Anil Raina, Secy