Allahabad High Court
Mohan Singh vs State Of U.P. & Another on 31 May, 2013
Bench: Ashok Bhushan, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD This is an appeal against the judgment and order dated 10.9.2004 passed by the learned Single Judge in Civil Misc. Writ Petition No.9912 of 1993 (Mohan Singh Vs. State of U.P. and others) by which order the learned Single Judge has dismissed the writ petition filed by the petitioner appellant.
Briefly stated the facts giving rise to the present appeal are that the the petitioner was a Constable in the Provincial Armed Constabulary and was allegedlyl involved in an incident along with others, which became known as the PAC revolt, which occurred on 21/22.5.1973. An FIR was lodged and the petitioner-appellant along with others were charged in Case Crime No.506 of 1973, under Sections 147,148 149, 302, 307, 324, 326, 330, 457, 492, 395,121,120-B and 409 I.P.C.
Notwithstanding the petitioner-appellant's involvement in the aforesaid subversive activity, the services of the petitioner appellant was terminated by an order of the Governor of U.P. date 14.11.1973 exercising the powers under Article 311(2)(c) of the Constitution of India on the ground that it was not in the interest of security of the State to keep the petitioner-appellant in service, and on the same reasoning, the inquiry contemplated under proviso to sub-clause (2) of Article 311 of the Constitution of India was also dispensed with.
The petitioner-appellant along with others were convicted by a judgment of the trial court dated 23.12.1981. The petitioner-appellant filed an appeal along with others being Appeal No.70 of 1982, which was allowed by the High Court by a judgment dated 21.12.1992 and the petitioner-appellant was acquitted. The State of U.P. preferred a Special Leave Petition, which was dismissed.
After his acquittal, the petitioner-appellant filed Civil Misc. Writ Petition No. 9912 of 1993 with the prayer for quashing the termination order dated 14.11.1973 and further prayed that he should be reinstated with continuity of service with full back wages. An interim order dated 1.10.2002 was passed in the said writ petition observing as under :
"Sri R.N.Tiwari is permitted to add Principal Secretary, Department of Home, State of U.P., Lucknow and the Director General of Police, P.A.C. Head Quarter, U.P., Lucknow as respondent no.5 and 6 in the writ petition. They may file counter affidavit within three weeks stating therein the action taken by them for implementation of the order of this Court as well as the Hon'ble Supreme Court. He shall also file the copies of the aforesaid judgments along with an affidavit on the next date of listing.
List on 25th October, 2002. In the meantime, the respondents no.1 to 6 are given one more opportunity to implement the directions of this Court and they reinstate the petitioners and pay them their salary with arrears in order to purge themselves."
Thereafter, by order of the State Government dated 27.10.2002 (Annexure-4) the concerned authorities were directed to ensure compliance of the order of this Court and to submit report of compliance to the State Government. In compliance to the above, an order dated 22.10.2002 was passed by the competent authority, whereby, the petitioner appellant was reinstated in service. However, ultimately, the aforesaid Writ Petition No.9912 of 1993 was dismissed by the learned Single Judge by judgment dated 10.9.2004 with the following observation :
"Thus, from the aforesaid it is clear that an acquittal in a criminal case does not give an automatic right to the petitioner for reinstatement. It is still open to the department to consider his case as to whether he should be reinstated or not after acquittal. In the present case the petitioner has not approached the department for reinstatement and has directly come to this Court. It is not open for the Court to step into the shoes of the department and consider the case of the reinstatement of the petitioner merely on the ground of acquittal from a criminal court. Such power only vests with the disciplinary authority.
However, in the present case, the termination is not based on the conviction of the petitioner in a criminal case. The petitioner's services had been dispensed on various charges by invoking the provisions of Article 311(2)(c) of the Constitution of India. The provisions of Article 311(2)(c) of the Constitution of India was not invoked while dismissing the services of the petitioner. Article 311 of the Constitution of India reads as under :
"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State :- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :
Provided further that this clause shall not apply]
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
From the aforesaid, it is clear, that Article 311(2)(a) and Article 311(2) Â(C) operate in different areas. Whereas, under Article 311(2)(a) a person can be dismissed without holding an inquiry o the ground of his conviction in a criminal case, on the other hand a person could be dismissed under Article 311(2)(c) where the President or the Governor is satisfied that in the interest of the security of the State it was not expedient to hold such an enquiry.
In the present case, the petitioner was dismissed on the ground that his continuance in employment was not in the interest of the security of the State. Therefore, in my view, the acquittal of the employee in a criminal case could not be made the basis of reinstatement. It would have been a different matter, if the dismissal of the services of the petitioner was based on a conviction by a criminal Court and subsequently the delinquent was acquitted in an appeal.
Accordingly, the petitioner is not entitled to be reinstated merely because he has been acquitted by a criminal court.
The petitioner is also not entitled to any relief on the ground of laches. The services of the petitioner was terminated on 14.11.1973. After his dismissal, the petitioner did not stir in the matter and remained quiet for almost 20 years and filed the present writ petition after his acquittal from a criminal court. The ground of acquittal is different from the ground of dismissal of the petitioner. If the petitioner was aggrieved by the order of dismissal, he should have challenged the said oder of dismissal before the appropriate forum. The delay of 20 years cannot be condoned on the ground that the petitioner has now been acquitted by a criminal court. In similar circumstances a large number of petitions were dismissed by judgment dated 24.10.2003 in writ petition No.3676 of 2003. Ram Briksha Singh vs. State of U.P. and others, wherein this Court held that the petitioners were not entitled to any relief of reinstatement or back wages as they have slept over their rights and no explanation of delay had been given in the petition. The Court held -
"The negligence or omission to assert a right, taken in conjunction lapse of time, more or less great, and other circumstances causing prejudice to the opposite parties operates as a bar in a Court of equity. Although Article 226 of the Constitution does not prescribe any period of limitation, but ordinarily no application can be entertained after a reasonable period of time. The discretionary relief cannot be granted to a person who does not seek his remedy with due diligence. Any person who invokes extra ordinary power under Article 226 of the Constitution of India must be vigilant and must approach the Court at the earliest."
Ram Briksha's case (supra ) is fully applicable to the present facts and circumstances of the case, and I am in complete agreement with the said decision. In the present case, no explanation whatsoever, has been given explaining the delay in filing the writ petition. Merely because the petitioner has been acquitted in a criminal case could not condone the delay in filing the writ petition. Consequently, the writ petition is also liable to be dismissed on the ground of laches.
In view of the aforesaid there is no merit in the writ petition and the writ petition is dismissed. However, in the circumstances of the case, there shall be no order as to cost."
Aggrieved with the aforesaid judgment dated 10.9.2004, the petitioner has filed the present special appeal. It is relevant to note here that in paragraph nos. 2 and 3 of the supplementary affidavit dated 25.11.2008, the appellant has alleged that he has retired from service on 31.8.2008 and no dues certificate dated 31.8.2008 (Annexure-1) was issued by the Company Commander.
We have heard Sri R.N.Tripathi, learned counsel for the petitioner-appellant and the learned Standing Counsel appearing for the respondents.
The learned counsel for the petitioner-appellant submitted as under :
(i) The impugned judgment is a common judgment passed in several writ petitions including Civil Misc. Writ Petition No.28752 of 2002 ( Satish Chandra Chaturvedi Vs. State of U.P. and others ). By judgment dated 8.12.2005 passed in Special Appeal No.757 of 2005 ( Satish Chandra Chaturvedi Vs. State of U.P. and others ), the impugned judgment was set aside by the Division Bench of this Court.
(ii) A Division Bench of this Court has considered the similar controversy and by judgment dated 9.11.2010 in Special Appeal No.697 (Defective ) of 2003 (Moti Lal Vs. State of U.P. and others ), allowed the special appeal after noticing several judgments passed in similar matters.
(iii) There was no laches on the part of the petitioner-appellant to file the writ petition, inasmuch as he was acquitted by the judgment of this Court dated 21.12.1992 and immediately thereafter, he filed a writ petition in the year 1993. In similar circumstances, the question of laches was considered by the Division Bench of this Court in the case of (Moti Lal Vs. State of U.P. and others ) (supra) and the Division Bench has held that the writ petition cannot be dismissed on the ground of laches in the facts and circumstances of the case. A large number of special appeals were filed by the State Government, leading appeal being Special Appeal No.110 of 2000 ( State of U.P. and others Vs. Gajadhar Pandey ) which were filed against the judgment of the learned Single Judge in similar circumstances quashing the termination order. These special appeals were allowed by a common judgment dated 15.11.2002 (Annexure-6) against which the Special Leave to Appeal No.4238 of 2003 was filed by the State of U.P., which was dismissed by the Hon'ble Supreme Court by order dated 7.5.2003 (Annexure-7).
(iv) He also referred and relied upon a judgment dated 13.3.1997 (Annexure-8) passed in Writ Petition No.4993 of 1992 (Chabi Nath Singh Vs. U.P. Public Service Tribunal ), judgment dated 28.7.2004 passed by the learned Single Judge in Writ Petition No.45896 of 2003 (Vikram Rai Vs. State of U.P. and others ) and the judgment dated 8.9.1999 ( Annexure-10) passed in Writ Petition No.40702 of 1998 (Radhey Lal Vs. State of U.P. and others ).
(v) The Government Order dated 7.9.1998 (Annexure-11) itself provides for reinstatement.
Learned Standing Counsel refuted the submissions of the learned counsel for the petitioner-appellant and fully supported the impugned judgment passed by the learned Single Judge. He further submitted that the petitioner appellant was reinstated under the interim order dated 1.10.2002 passed by the learned Single Judge in Civil Misc. Writ Petition No.9912 of 1993 and this writ petition itself having been dismissed by the impugned judgment, the petitioner-appellant is neither entitled for reinstatement nor for any retirement benefits. The writ petition was hit by laches. The termination of the petitioner-appellant was wholly in accordance with law and the termination order passed under Article 311(2)(c) of the Constitution of India cannot be set aside merely on the basis of the order of acquittal of the petitioner-appellant passed in criminal case by this Court.
Having heard the learned counsel for the parties and perused the record. We now proceed to examine the submissions of the learned counsel for the parties.
It is undisputed that the impugned common judgment was set aside in the case of Satish Chandra Chaturvedi (supra ).In the case of Satish Chandra Chaturvedi (supra) the Division Bench of this Court has held as under :
"On the basis of these facts, the appellant being already reinstated on the date of disposal of the writ petition, it had become wholly infructuous.
As such, the impugned order of the Hon'ble Single Judge is set aside and the writ petition is disposed of without any specific order as prayed therein. However, it is directed that the appellant should be treated in the same manner as other Constables have been treated, who have already been reinstated in service notwithstanding their alleged participation in the 1973 riots and the subsequent acquittal of them showing that participation was infact not there. Future steps will be taken by the parties in accordance with law."
By judgment dated 9.11.2010 passed in the Special Appeal No.697 of 2003 (Defective ), Moti Lal Vs. State of U.P. And others, the Division Bench of this Court has considered the various judgments passed by this Court in similar matters as well as the Government Orders issued from time to time on the issue involved in the present special appeal. The judgment passed by the Division Bench of this Court in the case of Moti Lal Vs. State of U.P. and others (supra ) is being reproduced below :
"The appellant, a Constable of the Provincial Armed Constabulary, was terminated from service on 8th of July, 1973 after giving him one month's notice. The appellant had been terminated in the background that he had participated in the PAC revolt which had occurred in the year 1973. A large number of such Constables who were similarly situate, had approached this Court and certain directions were issued by the High Court to decide their representations and some writ petitions were also disposed of with a direction to reinstate such terminated employees.
The Constables fell into two categories, one who were permanent in service and the others who were treated to be temporary and their services had been dispensed with after giving one month's notice. The matter had been engaging the attention of the State Government pursuant to the aforesaid litigation, which was being contested and ultimately the State Government on its own issued a Government Order on 7th September 1998 for reinstatement. This policy decision was followed by another clarification on 13th November, 1998 extending the benefit to permanent as well as temporary Constables, whose services had been dispensed with after giving one month's notice.
This policy decision led to a spate of writ petitions being filed before this Court. In some matters, the writ petitions were allowed and the termination orders were quashed, against which the State went up in Special Appeal. A bunch of these matters came to be decided by a Division Bench of this Court in the State of U.P. and Others Versus Gajadhar Pandey, reported in 2003(1) Education and Service Cases Page 221 (supra). The Special Leave Petition filed against the said decision has also been dismissed by the Apex Court. In the said decision, the State Government had taken a stand that these Police Constables had approached the Court after a lapse of more than 24 years, and therefore, this Court should decline to exercise discretion on the ground of laches. The aforesaid contention of the State was rejected by the Division Bench which is as follows:
"15. Having heard the learned counsel for the parties, we find that the services of the respondent - writ petitioners were terminated in the year 1973 by giving one month's pay in lieu of notice. They had approached this Court for the first time in the year 1997. All those police constables whose names were mentioned in the FIR and whose services were terminated on account of taking part in the PAC revolt after their acquittal were reinstated in service on account of the decision taken by the Government in the year 1996-97. These respondent - writ petitioners immediately thereafter approached this Court. In the first instance this Court directed the respondent - writ petitioners to make a representation before the concerned authorities. The representations were rejected and thereafter they had approached this Court by filing writ petitions giving rise to the present special appeals. Thus, it cannot be said that the respondent - writ petitioners are guilty of laches. It is to be remembered that our State is a welfare State. If the services of those constables, who took part in PAC revolt and indulged in criminal activities can be reinstated by the State Government without their termination order having been set aside on account of a policy decision, the cases of the respondent - writ petitioners, who did not indulge in any criminal activity and whose services were terminated by giving one month's pay in lieu of notice stood in a better footing. The State ought to have reinstated such persons also. Thus, we are of the view that the State has acted arbitrarily in not reinstating them while reinstating other set of persons whose services were terminated in specific charge, the cause being common i.e. PAC revolt, and they had to approach this Court. Thus, it cannot be said that the respondent - writ petitioners were guilty of laches. The decision of the Hon'ble Supreme Court as relied upon by the learned Standing Counsel would not be applicable in the peculiar facts of this case, as the Hon'ble Supreme Court had dismissed the special leave petition in respect of similarly situate employees, namely, Chhavi Nath Singh and Narottam Singh Tomar, who had filed the claim petition before the U.P. Public Service Tribunal where the order of discharge was simplicitor like the present one."
The appeals filed by the State were dismissed and as noted above, the said judgement has been affirmed by the Apex Court.
From the impugned judgment of the learned Single Judge, it is clear that the appellant filed Civil Misc. Writ Petition No.47192 of 1999 claiming parity of reinstatement and for setting aside the order of dismissal in view of the policy decision of the State Government as also the decisions of this Court in similar matters. The writ petition was disposed of on 28th November, 2000 with a direction to the competent authority to decide the representation of the appellant.
The representation was rejected by the Senior Superintendent of Police on 30th March, 2001 against which the appellant preferred Civil Misc. Writ Petition No.47080 of 2002, which has given rise to the present appeal. The writ petition filed by the appellant was clubbed along with a batch of writ petitions, in relation to such termination orders as also other Constables and all the writ petitions were dismissed. The appellant's writ petition was also dismissed on the ground of laches for having approached this Court challenging his termination after a lapse of more than 26 years.
Learned counsel for the appellant submits that the learned Single Judge had erroneously proceeded to reject the claim of the appellant on account of laches inasmuch as the appellant was similarly situate to those Constables in whose favour the decision had been rendered by this Court and affirmed in special appeal in the case of State of U.P. and Others Versus Gajadhar Pandey (supra). He further submits that they were also Constables who had approached this Court after a lapse more than 23 years and the State Government itself had taken a policy decision of reinstatement. In this view of the matter, it is urged that the State Government itself having taken a decision to extend the benefit after more than 25 years, therefore, there was no occasion for the learned Single Judge to have dismissed the petition of the appellant on the ground of laches.
Learned counsel for the appellant further submitted that the appellant is liable to be reinstated and further in view of the judgment of this Court passed in Special Appeal No.406 of 2010 (State of U.P. and Another Vs. Gopal Yadav) (supra), decided on 05.10.2010 the appellant deserves to be granted the reliefs as extended therein.
Learned Standing Counsel on the other hand submitted that the laches as indicated by the learned Single Judge in the impugned judgment leave no room for doubt that the delay was inordinate and remained unexplained and hence the appellant did not deserve any relief. He further submits that the impugned judgment does not call for any interference and the appeal deserves to be dismissed.
Having heard learned counsel for the parties, it is evident that the State Government itself came up with a policy to reinstate all such Constables. This policy decision was taken and accordingly those Constables who had not been given the benefit of the same, approached this Court by filing writ petitions. The writ petitions were allowed but the question of back wages was left open as the State Government came up with a plea that a decision shall be taken separately with regard to back wages. Later on, the State Government took a policy decision on 15th April, 2004 not to give back wages to those Constables who had been reinstated. This policy decision dated 15th April, 2004 was set aside in the case of Ayodhya Rai Versus State of U.P. and Another, passed in Civil Misc. Writ Petition No.60949 of 2005, decided on 29th July, 2009. The issue with regard to payment of back wages and reinstatement was considered by us in the case of State of U.P. and Another Vs. Gopal Yadav (supra) decided on 5th of October, 2010. The order passed by us is quoted herein below :
"The learned Single Judge by the impugned order 9.1.2003 noted that the respondent's services were terminated for his involvement in the PAC revolt which took place in May, 1973. The learned Judge then ordered that in the event the petitioner was not involved in criminal cases and no departmental enquiry was pending against him he shall be reinstated on his original post of Constable in PAC and will be taken back in service if he had not attained the age of superannuation and also the arrears of back wages shall be paid preferably within six months from the date of the order so recorded by the learned Judge.
The Court with regard to the back wages and retiral benefits was fully pleased to observe as under:
"Learned Standing Counsel has pointed out that the reference has been made to the State Government for taking the policy decision. The petitioner has to wait for the decision taken by the State Government. The advantage of back wages and other benefits of the petitioner shall depend upon the ultimate policy decision which may be taken by the State Government."
The writ petition was ultimately disposed of on that basis.
Thus, it is clear that though in the earlier part of the order the learned Single Judge directing payment of back wages, yet in the later part of the order stated that the same shall be depend upon the policy decision. After that judgment during the pendency of this appeal, the State Government has taken a policy decision by its G.O. dated 15th April 2004.
Considering the above, in our opinion, the State cannot be aggrieved by the order of the learned Single Judge, as the State itself by its G.O. dated 7th September 1998 and 13th November 1998 had took a policy decision to reinstate all those (permanent and temporary both) whose services were terminated under Article 311(2)(c) of the Constitution of India. If the respondent was not reinstated he shall be reinstated from the date of the order and he will be paid back wages from that date.
If the order of this Court has not been complied with on the date of the judgment dated 9.1.2003 the same will be treated for the purpose of payment of back wages and also for calculating other service benefits including post retiral benefits.
With the above observations the appeal is accordingly dismissed."
A perusal of the aforesaid order indicates that reinstatement has been allowed with effect from the date of the judgment as referred to therein namely 9th of January, 2003. Further the question of back wages has also been considered and the same date has been treated for the purpose of payment of back wages and calculation thereon.
The question relating to laches, in our opinion, would not arise inasmuch as the State Government itself took a policy decision in the year 1998 for the reinstatement of such Constables. This issue was raised and reinstatement was claimed, which culminated in the decision of State of U.P. and Others Versus Gajadhar Pandey (supra) and a number of Constables were reinstated. The Division Bench took notice of this fact that the Constables therein had approached immediately after there was an order of acquittal in respect of those who were involved in the criminal cases and a policy decision was taken by the Government. In the instant case, the appellant approached this Court immediately after the declaration of the policy by the State Government in the year 1998 by filing his writ petition in the year 1999. In such a situation, the cause of action which arose to claim the benefit according to the State Government itself was in the year 1998. The appellant, therefore, cannot be said to have committed any delay in approaching this Court claiming reinstatement. The writ petition filed by the appellant was disposed of for deciding his representation. The observation made by the learned Single Judge that delay and laches had not been condoned by this Court in the judgment dated 28.11.2000, therefore, became immaterial inasmuch as the direction of this Court was complied with by deciding the representation of the appellant. The said decision was taken on 30th March, 2001 which was promptly assailed by the appellant in the writ petition giving rise to the present appeal. Such being the facts of this case, the ground taken by the learned Single Judge to dismiss the writ petition on the point of laches and inordinate delay cannot be sustained.
Apart from this similarly situate Constables have been extended the benefit of reinstatement and back wages as noted above. Accordingly, in our opinion, the same relief deserves to be granted to the appellant. In that view of the matter, the impugned judgement insofar as it relates to the appellant Moti Lal passed in Civil Misc. Writ Petition No.47080 of 2002 dated 24.10.2003 is set aside. The termination of the appellant shall stand set aside. The appellant shall be entitled for reinstatement with effect from 9th of January, 2003, which is the date indicated in the judgment of State of U.P. and Another Versus Gopal Yadav (supra) and will also be entitled for payment of back wages to the aforesaid extent. The appellant, is stated to have attained the age of superannuation and therefore he shall be entitled to other emoluments in case the same is available in accordance with law, which shall be calculated accordingly within three months.
With the aforesaid observations, appeal is allowed."
We find that the controversy involved in the present special appeal is squarely covered by the Division Bench judgment of this Court in the case of Moti Lal (supra), which has the binding effect. The learned Standing Counsel could not point out any distinguishable feature and also could not place any judgment taking contrary view. However,under the facts and circumstances of the present case, the petitioner-appellant shall not be entitled to any back wages, since, by the order dated 1.10.2002 passed the learned Single Judge, the petitioner was reinstated by the competent authority by order dated 22.10.2002 (Annexure-5). In the case of Motilal (supra), this Court observed that the petitioner-appellant shall be entitled for reinstatement w.e.f. 9.1.2003, i.e., the date indicated in the judgment of State of U.P. And another Vs. Gopal Yadav and will be entitled for payment of back wages to the aforesaid extent. This judgment also supports the view taken by us.
The petitioner has already attained the age of superannuation and therefore, he shall be entitled to other emoluments, in case, the same is available to him in accordance with law which shall be calculated within three months.
In result, the impugned judgment of learned Single Judge is set aside and the special appeal is allowed in part to the extent indicated above.
The parties shall bear their own costs.