Jammu & Kashmir High Court
State Of J And K And Ors. vs Ghulam Nabi Bhat And Ors. on 8 October, 2007
Equivalent citations: 2008(1)JKJ566
Author: Mansoor Ahmad Mir
Bench: Aftab Alam, Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. These Letters Patent Appeals are directed against the Judgment and order dated 23-3-2005, allowing bunch of writ petitions including writ petitions of the respondents herein and quashed the orders impugned therein. In order to decide the controversy involved in appeals, it is necessary to notice the brief facts of each case:
LPA No. 109/20062. Ghulam Nabi Bhat, writ petitioner--respondent herein was appointed as Constable vide order No. 988 of 1987 dated 27-12-1987 on probation for a period of three years and was terminated from service vide order No. 288 of 1990 dated 30-4-1990, during probation period. He challenged his order of termination before the writ court through the medium of SWP No. 2183/1998 on the grounds taken therein. Admittedly he has challenged the impugned order of termination after a lapse of more than 8 years. The writ petition was admitted to hearing at the motion stage on 16-11-1998 and notices were directed to be issued to the respondents.
LPA No. 218/2005.
3. Ghulam Mohammad Dar, writ petitioner--respondent herein was appointed as constable in the J & K Armed Police, came to be removed from service vide order No. 151 of 1988 dated 4-3-1988 by the Commandant, JKAP 6th Bn. He challenged the impugned order of his removal after lapse of seven years through the medium of SWP No. 1769/2005. The petition was admitted to hearing on 8-2-2001 subject to delay and laches, to be considered at the time of hearing of the petition.
LPA No. 219/2005.
4. Mohammad Majnoon Mir, writ petitioner--respondent herein was appointed as constable in J & K Police vide order No. 124/1987 dated 16-2-1987 and came to be discharged from service vide order No. 849 of 1990 dated 1-11-1990. He challenged the impugned order of his discharge through the medium of SWP No. 957/2000 after a lapse of ten years. The writ petition was admitted to hearing on 17-10-2000 subject to laches. The writ respondents-appellants herein have filed their counter at all the writ petition and resisted the petitions on various grounds including the delay and laches.
5. Heard learned Counsel for the parties. The respondents were working in a disciplined force and they had not chosen to raise a little finger against the impugned orders by challenging the same before appropriate forum at the earliest. They also did not choose to raise their voice against non-payment of their pay cues. It is a common sense that every public servant gets his salary every month and in terms of the impugned orders, the writ petitions have not received any salary right from the date, orders of discharge/termination/removal came to be passed. How could it lie in their mouth that the impugned orders were not served on them. They are caught by their own conduct and the writ petitions were liable to be dismissed on the ground of delay and laches alone. Apex court in case State of Maharashtra v. Digambar held that writ petitions are liable to be dismissed when there is inordinate delay. It is profitable to reproduce the relevant portion of paras 14 and 19 of the Judgment hereunder:
...Thus in our view, persons seeking relief against the state under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable there-under unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the state.
...
Powers of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the state or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblame worthy conduct of the person seeking relief, and the court refused to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
6. In case Sudhir Vishnu Panvalkar v. Bank of India , the apex court dismissed the writ petition which was filed after a lapse of 3 years and six months after the termination order was passed. In another case titled Scooters India and Ors. v. Vijai E.D. Eldred , the apex court has held that writ petition, which was filed six years after passing of the order of termination, was not maintainable. Same ratio has been laid by the apex court in cases reported as State of Orissa v. ZLochan Nayak . In case Life Insurance Corporation of India v. Jyotsh Chandra Biswas , the apex court has laid down the same ratio. In 2005 (11) SCC 546, the apex court has held that writ petition filed after a gap of three years was not maintainable and dismissed the same on the ground of delay.
7. Applying the ratio laid down in the judgements supra, the writ petitioners have not explained the delay, as discussed hereinabove. At the cost of repetition, it is apt to mention here as to how could it lie in the mouth of the petitioners that they were not having any knowledge of the impugned orders. Even if it be presumed that they had no knowledge of their orders of termination/removal/discharge from service, but when their salary/pay dues were not released to them, did they raise their voice for the non-payment of their salary/pay dues. Where were they from the date of termination till filing of the writ petition. A constable who remains in deep slumber for more than five years and in another case for about ten years, and one fine morning he comes to the court for quotient of the order of his termination/removal/discharge and for his reinstatement. Can such a person be allowed to serve in disciplined force. Thus all the three writ petitions were liable to be dismissed only on the ground of laches and delay.
8. It is worthwhile to mention here that the question of laches and delay was to be determined at the final hearing of the writ petition, as per interim orders, whereby writ petitions came to be admitted, subject to laches and delay. One writ petition was even admitted without notice. Thus it cannot be said that the writ respondents have waived the objection of delay and laches. The writ court has erred in allowing the writ petitions without considering the objection raised by the appellants that the writ petitions were not maintainable and liable to be dismissed on the ground of inordinate delay and laches. The writ court has lost sight of the said objection.
9. In case SDO, GRID Corporation of Orissa Ltd. v. Timudu Oram 2005 (6) SSC 156, the apex court has laid the same ratio. It is relevant to reproduce para 9 of the said Judgment hereunder:
...In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO). The High Court has also erred in awarding compensation in Civil Appeal No. 4552 of 2005. The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its N jurisdiction under Article 226 of the Constitution cannot be justified.
10. The apex court has also held in the Judgment reported as 1995 (4) SCC 68 J(supva.), that the relief granted by the writ court without taking into consideration delay and laches is arbitrary exercise of discretion. It is profitable to reproduce para 23 of the judgment hereunder:
...Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily.
11. Looking the cases from another angle, the petitioners are not only aught by delay and laches, but are also caught by principle of acquiescence waiver and conduct for the reasons that they have remained mute spectators for a pretty long time and virtually accepted the impugned orders and after a long time came out of deep slumber and filed the writ petitions. The apex court in case Chairman U.P. jal Nigam and Anr. v. Jasioant Singh 2007 AIR SCW 672 has laid down the same principle. It is profitable to reproduce paras 12 and 13 of the said Judgment hereunder:
...
12. The statement of law has also been summarized in Hslsbury's Laws of England, para 911, pg. 395 as follows:
In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
i. acquiescence on the claimant's part; and ii. any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.
12. In view of the statement of law as summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilance enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of he provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussion on the financial management of the Nigam. Why the court should come to the rescue of such persons when they themselves are guilty of waiver and acquiescence."
13. The writ petitions of Ghulam Nabi Bhat and Mohammad Majnoon were ateo liable to be dismissed on the count that both of them were on probation when their orders of discharge/termination/removal came to be passed. In terms of Rule 187 of the J & K Police Rules, they were neither required to be served with any notice nor were they entitled to be afforded an opportunity of being heard. It is profitable to reproduce Rule 187, so far it is relevant for the present, is reproduced hereunder:
187. Discharge of in-efficient: A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent of Police at any time within three years of enrolment.
14. Applying the test to the cases at hand, both the writ petitioners came to be discharged and the orders of discharge are in no way punitive, but are simpliciter orders of discharge. The apex court in case Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. AIR 2003 SC 1789 held that when an order is not punitive but a simpliciter order of discharge, notice is not required. It is profitable to reproduce relevant portion of para 10 of the Judgment hereunder:
Paras 1 to 3 of the show cause notice reflect about the unsatisfactory performance of the duty of the appellant. Paras 4 and 5 of the show cause notice were not taken into consideration in passing the order of termination of services as is evident from the termination order although reference is made to the show cause notice. The last para of the show cause notice also indicates that the action was proposed in terms of Clause 2 of the order of appointment namely, terminating the services during probationary period. The order of termination of services refers to relevant clause in the order of appointment and explanation given by the appellant to the show cause notice. The last paragraph of the said order shows that his explanation was found unsatisfactory. The appellant had wrongfully recommended acceptance of bad stock not once but several times; as such it was held that his services have been unsatisfactory. Hence, the order of termination was passed. From this order of termination, it is clear that the respondents did not rely on paras 4 and 5 of the show cause notice. The Division Bench in the impugned judgement, after perusal of the files observed that the appointing authority had abandoned those charges and concentrated only on the lapses committed by the appellant in wrongfully recommending acceptance of bad stock. We have no good reason to differ with this finding recorded by the Division Bench after perusal of the relevant files and records. Even otherwise, paras 4 and 5 of the show cause notice stand withdrawn as per the direction given by the High Court. This being the position, no prejudice is caused to the appellant to complain that High Court has exceeded its power to judicial review when such a deletion of paras 4 and 5 from the show cause notice is to the benefit and advantage of the appellant. This also protects the appellant from any adverse affect when he seeks employment elsewhere and prospective employer may not have any ground to take adverse view of the alleged misconduct contained in paras 4 and 5 of the show cause notice.
15. Apex court in Om Prakash Mann v. Director of Education (BASIC) and Ors. 2006 AIR SCW 4548, has held that requirement of issuing notice to a probationer and providing him an opportunity of hearing is not required. It is profitable to reproduce para 11 of the Judgment hereunder:
Admittedly, the enquiry was also initiated against the appellant when he was on probation. It is well settled principle of law that if the probationer is dismissed/terminated during the period of probation, no opportunity is required to be given and, therefore, the question of violation of principles of natural justice does not arise in the given facts of this case.
16. The appellants have averred in the counter that Mohammad Majnoon was having links with terrorists and arrested under TADA. He was also detained under the provisions of the Public Safety Act. A person who is allegedly involved in terrorist activities cannot prove to be a good police official. He was a probationer and no notice was required to be issued to him and was not to be heard at all. Even if he would not have been a probationer at that particular point of time, even then, no notice was required to be issued to him in terms of Judgment of the apex court in cases reported as 1999 (10) SCC 659, 20Q0 SLJ 603 and 2005 SLJ Vol. 1, 182.
17. The writ court has not discussed the case of Ghulam Mohammad Dar in the impugned judgement. Thus the writ court has fallen in error. Having glance over the above discussions, I am of the considered view that the appeals merit to be allowed and the impugned Judgment merits to be set aside and the writ petitions are to be dismissed. Accordingly these appeals are allowed and the Judgment of the writ court is set aside, so far it relates to the respondents and the writ petitions filed by them are also dismissed.