Gujarat High Court
Vikrambhai vs State on 10 July, 2006
Author: A.L.Dave
Bench: A.L.Dave
LPA/95/2012 7/ 7 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 95 of 2012 In SPECIAL CIVIL APPLICATION No. 18097 of 2011 With CIVIL APPLICATION No. 1338 of 2012 In LETTERS PATENT APPEAL No. 95 of 2012 ========================================================= VIKRAMBHAI MATHURBHAI RATHWA - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR IS SUPEHIA for Appellant(s) : 1, MS TRUSHA MEHTA, AGP for Respondent(s) : 1 - 2, None for Respondent(s) : 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 02/02/2012 ORAL ORDER
(Per : HONOURABLE MR.JUSTICE A.L.DAVE) The appellant challenges the order passed by learned Single Judge in Special Civil Application No.18097 of 2011 on 22.12.2011. The appellant approached the learned Single Judge making following prayers :
"(A) Quashing and setting aside the order of dismissal dt. 5.8.2005 and the order of compulsory retirement dt.18.9.2007, as also the order of the Gujarat Civil Services Tribunal, Gandhinagar, dt.10.7.2006 in Appeal No.217 of 2005, and to reinstate the petitioner in service with continuity but without back wages for the period of delay;
(B) Quashing and setting aside the disciplinary proceedings held against the petitioner;
(C) During the pendency and final disposal of this petition, the Respondent No.2 may be directed to reinstate the petitioner in service;
(D) To grant such and further relief as may be deemed fit and proper;"
2. The appellant was working as a driver with the respondent from 26.04.1990, and came to be dismissed from service by order dated 10.07.2006, passed by the competent authority, on a charge, which stood proved appropriately, after holding the departmental inquiry. The charge against the appellant was of repeated and prolonged absence from the duty. The appellant was arrested on the charge of a murder, and was in judicial custody, pursuant to the FIR being CR-I No.115 of 2004 registered with Chhota-Udepur Police Station. He was placed under suspension and continued as such. The departmental inquiry was also conducted against him, and after following the due procedure of supplying report of the inquiry officer, etc.; the show-cause notice was served on him on 08.06.2005, which was replied by the appellant on 21.06.2005, and after considering the relevant aspects, the disciplinary authority imposed penalty of dismissal by order dated 05.08.2005, in exercise of powers under the Gujarat Civil Services (Discipline and Appeal) Rules. The appellant challenged the said order of dismissal before the Gujarat Civil Services Tribunal, Gandhinagar by filing Appeal No.217 of 2005, and the Tribunal, after considering the relevant material on record and submissions made on behalf of the appellant, modified the said punishment of dismissal to compulsory retirement, by order dated 10.07.2006.
2.1 The appellant chose not to challenge the order of compulsory retirement dated 10.07.2006. However, the appellant applied for compassionate pension and being unable to secure compassionate pension, the appellant, then approached the learned Single Judge to assail the order of dismissal, compulsory retirement and order of Gujarat Civil Services Tribunal, Gandhinagar passed in Appeal No.217 of 2005 and sought reinstatement in service with continuity, but, without back wages for the period of delay.
2.2 The learned Single Judge, after considering the submissions made on behalf of appellant and considering the fact that the order of dismissal which was altered to compulsory retirement remained unchallenged by the appellant and the challenge was is made only after a long lapse of about five and half years, dismissed the petition.
3. We have heard learned advocate Mr. Supehia for the appellant. He submitted that the learned Single Judge has dismissed the petition mainly on the ground of delay. According to learned advocate Mr. Supehia, as per the decision of Supreme Court, mere delay is not sufficient to dismiss the petition, there has to be laches also, and here in the instant case, there is no question of any laches and therefore, the learned Single Judge committed an error in not entertaining the petition. Learned advocate Mr. Supehia has relied on the decision of the Apex Court in case of Smt. Sudama Devi versus The Commissioner and others, AIR 1983 SC 653, and the decision of this Court in case of Kiritkumar D. Vyas versus State and Another as reported in 1982 (2) GLR 79 in support of his argument.
3.1 Learned advocate Mr. Supehia submitted that on merit also, the appellant has a sound case. He submitted that the inquiry was conducted in prison while the appellant was an under-trial prisoner, and the appellant did not have any help of an assistant. He further submitted that the appellant's contentions have not been appropriately dealt with by the respondent authorities, which they are supposed to do, and, therefore also, the decision taken by the respondent -authorities stands vitiated. Therefore, the present appeal may be entertained.
4. We have given our thoughtful consideration to the matter on hand. Indisputably, the appellant had not challenged the order of dismissal or order of compulsory retirement for a long period of about five and half years. Differently put, he accepted the said decision and waived or abandoned his right to challenge the order on any count. The appellant, instead of challenging the order within reasonable time, pursued the relief of compassionate pension, and when that was rejected, instead of challenging that rejection of compassionate pension, the appellant has challenged the order of dismissal as well as order of compulsory retirement. The appellant's attempt, now, is to have best of both. He tried to secure compassionate pension and having failed, he wants revival of a right to challenge the order of dismissal, which he had already abandoned for a long spell of five and half years. In our view, therefore, learned Single Judge was right in not entertaining the petition and refusing to exercise the jurisdiction under Article 226 of the Constitution of India.
5. So far as the decision relied upon by learned advocate Mr. Supehia holding that delay and laches both must be present in the case are concerned, in our view, though the appellant belongs to the post of a driver, we have no material to know if any new appointments have been made and whether there is any vacancy available, if the reinstatement is to be granted. If there is no vacancy in the post of a driver and, if reinstatement is granted, then, somebody else would obviously be thrown out of the job. In these circumstances, it cannot be said that it is a case of mere delay.
6. So far as other aspects on merit are concerned, in our view, when the petition suffered from the defect of delayed approach, the learned Single Judge decided not to use his discretion or exercise the powers under Article 226 of the Constitution of India. Hence, the present appeal cannot be entertained. The appeal must fail and stands dismissed.
7. In view of dismissal of appeal, the Civil Application does not survive and stands disposed of accordingly.
[A.L. Dave, J.] [Mohinder Pal, J.] #MH Dave : 200%; text-decoration: none"> #MH Dave