Jammu & Kashmir High Court - Srinagar Bench
State Of J&K And Ors vs Constable Sanjeet Kumar on 16 July, 2012
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR LPA No. 102 of 2006 IA No. 158 of 2006 State of J&K and ors Petitioners Constable Sanjeet Kumar Respondents !Mr. A. M. Magray, Advocate Mr. Shah Aamir, Advocate ^Mr. Zahoor A. Shah, Advocate Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Hasnain Massodi, Judge Date:16/07/2012 : J U D G M E N T :
1. The State has filed the instant appeal under Clause 12 of the Letters Patent Rules against the judgment and order dated 27.04.2005 passed by the learned Single Judge while allowing SWP no. 11/1998. Accordingly the learned Single Judge has quashed Order No. 161 of 1990 dated 08.02.1990 terminating the service of the writ petitioner- respondent by dispensing with the enquiry.
2. The undisputed facts are that the writ petitioner was working as a Constable and was posted as such at Police Station Pantha Chowk, Srinagar with effect from 07.10.1989. He absented from duties without any sanctioned leave w.e.f. 24.04.1990. On account of the precarious conditions prevailing in the Kashmir Valley in the year 1990, the Competent Authority invoked the powers under Section 126(2)(b) of Jammu and Kashmir Constitution and dismissed him from service on 08.12.1990. The aforesaid order makes an interesting reading and deserves to be set out in ex tenso, which reads thus:-
Order no. 161 of 1990 Dated: 8.2.1990 Whereas you Const. Sajeet Kumar no. 453 were posted in Police Station P. Chowk Srinagar with affect from 7.10.1989.
Whereas you absented yourself from duties un-authorisedly with effect from 24.4.1990 and your continued absence has adversely effected the department.
Whereas in view of present condition prevailing in J&K, in general and the Valley in particular, I am satisfied that it is not reasonably practicable to held enquiry into your conduct.
Therefore, I, K. Rajendra Kumar, IPS, Superintendent of Police, city (South) Srinagar in exercise of powers vested in me under 126 (2) of J&K, Constitution hereby order termination of your service from the department the date you have absented yourself from duty in view of gross misconduct committed by you.
3. In his writ petition, the writ petitioner-respondent has made categorical averments in para nos. 6 and 7, which read as under:-
6. That on 12.6.1993, the petitioner made an application before the concerned official and requested him that since the petitioner had settled his family members at Jammu and that his ailing parents had recovered to some extent from their ailments therefore the petitioner be assigned his duties and he be allowed to mark his attendance in the daily Roznamcha but instead therefore he was verbally communicated that his services have been terminated and therefore he was not allowed to join his duties. A copy of the said application is annexed herewith the writ petition and is marked as Annexure P-2.
7. That thereafter the petitioner requested the respondents to supply him the order of termination but the same was not made available to him however the petitioner managed to get a copy of the said order. A copy of the order is annexed herewith the writ petition and is marked as Annexure P-3.
4. In its reply by way of affidavit the appellant-State raised various preliminary objections. However, the objection with regard to delay and laches has been taken in para no.4. According to the preliminary objection, it has been asserted that the order of dismissal was passed in the year 1990 but the writ petition was filed in the year 1998 after lapse of 8 years and the delay has remained unexplained. It has also been pointed out in para no.5 of the preliminary objections that a remedy of appeal was available and the writ petitioner-respondent could have gone to the authority under the Jammu and Kashmir Police Rules. In corresponding para 6 and 7 of the reply affidavit the averments made by the writ petitioner-respondent were controverted. The version of the writ petitioner-respondent was called a concocted excuse with a further assertion that the order was communicated to him. The aforesaid paras 6 and 7 of the reply-affidavit are set out below for ready reference:- 6. In reply to para no.6 of the writ petition, it is submitted that after about three years petitioner has made an application as projected in the para under reply though no such application was received, though the contents of the said application wherein he mentions that due to mental agony and disturbed conditions he could not resume his duty. Joining of services and leaving of the duty is not on the sweet will of the employee but in the para under reply he put up a cock and bull story about ailment of his parents.
The services of the petitioner in view of his continued absence, were already terminated in accordance with law, as such there was no occasion for him to join the duty as he was no more in the services of the police department.
7. Contents of para no. 7 is baseless and concocted, as order of termination was sent on the non-official address of the petitioner and he has received the same, which he challenged by medium of the present writ petition.
5. The learned Single Judge, without adverting to the preliminary objection of delay, reached a conclusion that dispensing with enquiry by invoking Section 126 (1)(b) of the State Constitution [equivalent to Article 311(2)(b) of the Constitution of India] was not warranted because the disciplinary authority was required to record reasons in writing for dispensing with the enquiry. The learned Single Judge placed reliance on the celebrated judgments of Honble the Supreme Court in Union of India v. Tulsi Ram Patel AIR 1985 SC 1416 and Jaswant Singh v. State of Punjab and ors AIR 1991 SC 385. The learned Single Judge also placed reliance on various Division Bench judgments of this Court to conclude that the ground of prevailing law and order scenario to base the satisfaction for dispensing with holding of regular departmental enquiry was not available and on that score the writ petition was allowed and the order dated 08./12.1990 was set aside. The concluding portion of the judgment delivered by the learned Single Judge reads thus:-
Thus, the consistent view of this Court is that the prevailing situation or the security scenario of the State was no ground muchless a sufficient ground to dispense with the enquiry under the provisions of the Constitution.
In the present case the authority has not given any details as to how the prevailing situation in the State prevented it from holding the enquiry. No material has been placed on file to show that there was any nexus between the prevailing situation in the State and the charge against the petitioner. Thus, the ground taken by authority appears to be imaginary one and not based on any material at all.
In view of the facts and circumstances of the case, the impugned order cannot stand which is hereby quashed. Quashment of the impugned order, however, shall not prevent the authorities from holding a regular enquiry against the petitioner. This order shall also not entitle the petitioner to any wages/pay or salary for the period he remained out of service.
Such period may be decided by the authorities on the basis of the findings arrived at in the enquiry if held against the petitioner.
6. Mr. A. M. Magray, learned Senior Additional Advocate General, has argued that despite the preliminary objection raised by the State regarding long delay of 8 years, the learned Single Judge has failed to return any finding on the issue. According to the learned counsel, no writ petition was maintainable in the year 1998 against an order passed in the year 1990. In support of his submissions he has placed reliance on two Division Bench judgments of this Court rendered in the case of State of J&K and ors v. Ghulam Nabi Bhat and ors 2008(1) JKJ 566 and State and ors v. Ghulam Mohmad Wani 2011(4) JKJ 147. Learned counsel has also asserted that the order of dismissal was communicated to the writ petitioner-respondent as is averred in para no.7 of the reply filed in the form of affidavit. He has maintained that the aforesaid averment has not been controverted by filing any rejoinder which amounts to accepting the factual position. However, Mr. Magray states that even if it is accepted that the writ petitioner-respondent did not receive the order then according to his own showing he came to know about the order of termination in the year 1993 as per his averments made in para 6 of the writ petition, therefore, none prevented him from filing either the appeal before the Competent Authority as per the Police Rules or invoke the writ jurisdiction of this Court. Taking June 1993 as the date of knowledge, the writ petition is still delayed by 4= years. The writ petition has been filed 4= years thereafter which is much beyond the period of three years.
7. Mr. Zahoor A. Shah, learned counsel for the writ petitioner- respondent has vehemently argued that the order has never been communicated and if the duty to communicate the order has not been discharged then such an order would not be binding as has been held by Honble the Supreme Court in the case of State of Punjab v. Amar Singh Harika AIR 1966 SC 1313. According to the learned counsel, non- communication of the order would create a situation which is as good as non-passing of the order because an order kept in the drawer of an officer is no order. He has further argued that a void order, which is based on infraction of the mandatory provisions of holding of enquiry, can be ignored and it need not be challenged at any time.
8. Having heard learned counsel for the parties and perusing the averments made in the pleadings with their able assistance, we are of the view that the learned Single Judge has committed grave error in law by abandoning to record any finding on the question of delay and maintainability of the writ petition filed in the year 1998 against the order dated 08.02.1990.
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. Firstly, adverting to the pleadings of the parties, as set out in the preceding paras of this judgment, it becomes abundantly clear that the order was passed on 08.02.1990. The writ petitioner filed an application on 12.06.1993 for assigning him duties. An important fact has been conceded in para no. 6 of the writ petition that he was verbally communicated that his services stood terminated at that time in 1993. Eventually he filed the writ petition in the year 1998, alleging in para no. 7 that despite request made by him to furnish a copy of order of termination, the same was not made available to him, yet a copy of the order has been placed on record. In the reply-affidavit filed by the appellant it was specifically stated that a concocted version had been put forward by the writ petitioner-respondent and it was specifically asserted in para no. 5 of the preliminary objections that the writ petition was hopelessly time barred and the delay of 8 years has remained un-explained. Therefore, we are of the view that if we take the commencement of the limitation period from the date of passing of the order on 08.02.1990, the writ petition was delayed by 8 years. Even if it is assumed that the writ petitioner- respondent has acquired knowledge of his termination as per his own version on 12.06.1993 than the writ petition is delayed by 4= years.
10. 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)
11. 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.
12. 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.
13. Mr. Zahoor A. Shah, learned counsel for the writ petitioner- respondent has argued that order dated 08.02.1990, dismissing the writ petitioner-respondent from service, is a void order and is not required to be challenged. However, the submission made by learned counsel does not merit acceptance. It is appropriate to mention that a 5-Judge Constitution Bench in State of Madhya Pradesh v. Syed Qamarali 1967 S.L.R (SC) 228 has held that if an order of dismissal is passed in breach of a mandatory provision of the rules, then such an order would have no legal existence and it was not necessary for the employee to have the order set aside from a Court of law. The contention raised to the contrary was rejected. The aforesaid view has not met approval of Honble the Supreme Court in the case of State of Punjab v. Gurdev Singh (1991) 4 SCC 1. In para nos. 7 and 8 of the judgment the following pertinent observations have been made:-
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
14. Their lordships of the Supreme Court then proceeded to examine the judgment rendered in Syed Qamaralis case (supra) and 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 08.02.1990 suffered from some illegality.
16. Accordingly, we do not find any substance in the submissions made by Mr. Zahoor A. Shah, learned counsel for the writ petitioner- respondent.
17. As a sequel to the above discussions, the appeal is allowed. The judgment and directions issued by the learned Single Judge dated 27.04.2005 are set aside. The writ petition is held to be time barred and thus is not maintainable.
18. Accordingly, SWP no. 11/1998 is dismissed and order dated 08.02.1990 is up held.
19. No costs.
(Hasnain Massodi) (M. M. Kumar)
Judge Chief Justice
Srinagar
16.07.2012
Anil Raina, Secy