Jammu & Kashmir High Court
Parkash Chander Chowdhary vs State Of J&K And Ors on 28 January, 2014
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPASW No. 194 OF 2011 Parkash Chander Chowdhary Petitioners State of J&K and ors. Respondent !Mr. Abhinav Sharma, Advocate ^Ms. Meeankshi Bhatyal, GA Honble Mr. Justice M. M. Kumar, Chief Justice. Honble Mr. Justice Dhiraj Singh Thakur, Judge Date: 28.01.2014 :J U D G M E N T :
M.M.Kumar, CJ
1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 30.08.2011 rendered by the learned Single Judge of this Court rejecting the claim made by the appellant. In the writ petition filed in the year 2008 the primary relief claimed was to set aside order dated 19.06.1974 terminating the service of the appellant, who was working as Assistant Registrar in the Co-operative Department of the State Government. The learned Writ Court held that the law leans in favour of those who are vigilant and it would be proper exercise of discretion to decline judicial review in respect of a stale claim. The writ petition was filed in the year 2008 challenging the order of termination passed on 19.06.1974. Thus there was delay of 34 years. The view of the learned Writ Court is discernible from the following paras of the judgment:-
2== The case set up by petitioner to explain long and inordinate delay of 34 years is that the termination order No.Adm/491-92 dated 19th June 1974 was not served on the petitioner. The explanation tendered by the petitioner is far from convincing. The petitioner was vide Order No.Adm/193-94 dated 19th June 1972 transferred and posted as Assistant Registrar, Cooperatives at Bani District Kathua. The petitioner did not obey the transfer order and failed to report at his new place of posting. The petitioner instead applied for casual leave followed by successive leave applications. However, leave was not sanctioned in his favour. The respondents instead placed the petitioner under suspension, framed chargesheet against him, which was duly published in Government Gazette of March 1973. The petitioner, aware of rejection of his successive leave applications, his suspension and charge-sheet, responded to chargesheet and filed his reply to it in May 1973. The petitioner thus was well aware of rejection of his successive leave applications, disciplinary proceedings having been initiated against him, and can be reasonably expected to have been conscious of outcome of the proceedings. The respondents admittedly did not pay any salary to petitioner after his failure to report to Bani in June, 1972, and was not paid any subsistence allowance after his suspension ordered in March 1973. The petitioner, in the circumstances, cannot be heard saying that he was not aware of termination order No.Adm/491-92 dated 19th June 1974.
The petitioner was working on a senior position in Cooperative Department and is presumed to be well aware of his rights including right to claim salary prior to his suspension and subsistence allowance after his suspension was ordered. Similarly, the petitioner is expected to have been aware of the course that disciplinary proceedings are to follow and how the results of such proceedings were to shape up. The petitioner cannot explain long delay of three and a half decades merely on the ground that he made successive applications for grant/extension in his leave from June 1972 to march 1973 (Annexures B to Q to the petition) or grant of suspension allowance in the year 1973 (Annexure T & V). The fact that the petitioner was fully aware of the termination order in the year 1974 itself is borne out by Annexure-X, annexed by the petitioner with the writ petition, whereby petitioner on 19th September 1974 submitted an application to the Registrar, Cooperative Societies, asking for a copy of termination order. The review petitions and representations filed by the petitioner thereafter, after intervals of one to two years do not indicate that the petitioner at any point of time intended to seriously question the termination order. The purpose appears to 3 have been only to keep the potnot boiling but on low intensity fire and allow the issue to be alive till the petitioner crossed the age of superannuation and would turnaround to seek the benefits that were never claimed, without rendering any actual service. The petitioner obviously after he did not chose to obey the transfer order and join as Assistant Registrar, Bani in June 1972 must have pursued a profession of his choice, feeling no urge to resume the duty or question the termination order.
2. We have heard Mr. Abhinav Sharma, learned counsel for the appellant and Ms. Meenakshi Bhatyal, learned Government counsel. We have reached the conclusion that the view taken by the learned Writ Court does not warrant interference. Once the appellant has preferred to keep quite for more than 34 years and there is sufficient material on record to show that he was aware of the order of termination passed in the year 1974, then the discretionary relief under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir would not be available. Mr. Sharma has placed reliance on a judgment of Honble the Supreme Court rendered in the case of Royal Orchid Hotels v. G. Jayarama Reddy, (2011)10 SCC 608, and has argued that there is no rule of law which may provide that delay and laches would defeat fundamental rights. According to Mr. Sharma, it is merely a rule of prudence that the Court shows disinclination to entertain stale claims. Mr. Sharma has maintained that an order which is void ab initio does not need to be challenged because such an order is a non existent order.4
3. We are not impressed with the arguments raised by Mr. Sharma and feel content to approve the observations made by the learned Single Judge. The appellant was transferred on 19.06.1972 but he disobeyed the order of transfer. He never joined at his new place of posting, instead applied for casual leave which was never approved. The respondents placed him under suspension, framed charge-sheet against him which was duly published in Government Gazette of March, 1973.
Therefore, the explanation that he never came to know about the order of termination is to be regarded as imaginary. It cannot be believed that a person working on a senior position would not be aware of his right including right to get salary. His claim is belied by the fact that he addressed a communication dated 19.09.1974 asking for supply of a copy of termination order which was followed by review petition and representation. Thus the appeal does not merit admission and is liable to be dismissed.
4. For the reasons aforementioned, this appeal fails and same is dismissed.
(Dhiraj Singh Thakur) (M. M. Kumar) Judge Chief Justice Jammu, 28.01.2014 Vinod.