Delay and Laches – The employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present. The appeals are allowed and the judgment and orders passed by the High Court are set aside. There shall be no order as to costs.
Delay and Laches
AIR 2016 SC 3006 : JT 2015 (9) SC 214 : 2015 (10) Scale 575 : 2016 AIR (SCW) 3006 : 2015 (4) SCT 457 : 2015 (4) Law Herald (SC) 3039 : 2015 (3) CLR 603 : 2015 (4) JLJR 336 : 2015 All SCR 3392 : 2015 (10) ADJ 4 : 2015 (6) SLR 714 : 2015 (4) PLJR 480 : 2016 (1) JBCJ 147 : 2015 (33) LCD 3178
CIVIL APPELLATE JURISDICTION
[Dipak Misra] and [Prafulla C. Pant] JJ.
October 08, 2015
CIVIL APPEAL NOS. 8390-8391 OF 2015
(@ S.L.P.(C) NOS.11203-11204 OF 2014)
State of Jammu & Kashmir … Appellant
R.K. Zalpuri and others … Respondent
J U D G M E N T
Dipak Misra, J.
The first respondent was served with a Memorandum of Charges on 16th September, 1996, which was unequivocally refuted by him. The Disciplinary Authority considering the denial of charges, on 12th November, 1996, appointed an Inquiry Officer, who after conducting the enquiry, submitted a report to the Disciplinary Authority which contained a finding that the employee had misappropriated a sum of Rs.2,68,317.00. After the report was submitted, the Disciplinary Authority issued a show cause notice on 4th June, 1999, whereby it had proposed to terminate the services of the employee.
2. The first respondent submitted the reply and the Disciplinary Authority considering the explanation passed an order of dismissal on 6th September, 1999 and he stood dismissed from that day. The order passed by the State Government dismissing the employee read as follows:-
“Whereas the commissioner of Inquiries has submitted his report to the Government and has found him guilty of having embezzled Government money to the tune of Rs.2,68,317.00 (Rupees two lacs, sixty eight thousand, three hundred and seventeen only) besides being responsible for financial mis-conduct and complete lack of devotion to duties. Whereas, after considering the report of the inquiry officer the involvement of Shri R.K. Zalpur, Senior Assistant, has been established in the embezzlement of Government money as indicated above in the office of Resident Commissioner, J&K, New Delhi. Whereas after accepting the report of the inquiry officer and after establishing his involvement, the Government has decided to take action against Shri R.K. Zalpuri, Sr. Assistant in terms of clause (viii) of rule 30 of the J&K (Classification Control and Appeal) Rules, 1956 which provides dismissal from service. Whereas, Shri R.K. Zalpuri was informed about the decision of the Government vide communication No. GAD (Admn.) TA 3391-IV dated 04.06.1999 and was called upon under rules to show cause as to why the proposed action is not taken against him. Whereas Shri R.K. Zalpuri has furnished his reply to the notice served upon him, which has been considered by the Government and no merit was found in he same; Now, therefore, Shri R.K. Zalpur, Senior Assistant, in the office of the Resident Commissioner, J&K, New Delhi is hereby dismissed from Government service with immediate effect in terms of clause VIII of Rule 30 of J&K Civil Service (CCA) Rules, 1956.”
3. After the said order was passed, the first respondent did not prefer any departmental appeal nor did he approach any superior authority for redressal of his grievance. However, on 18th February, 2006, he filed a writ petition (S.W.P. No.352 of 2006) before the High Court challenging his dismissal from service. Various assertions were made in the writ petition with regard to the defects in conducting of the inquiry including the one that there had been violation of
Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956
for he had not been afforded an opportunity of hearing in the manner provided in the said Rules. In the writ petition nothing was stated what he had done from 1999 to 2006.
4. The State Government filed a counter affidavit wherein it had raised a preliminary objection relating to delay and laches. The stand taken by the State Government in the counter affidavit as regards the delay and laches is as follows:-
“That, the writ petition instituted by the petitioner is liable to be dismissed at its threshold, inasmuch as the same is suffering from inordinate and unexplainable delay and latches. By virtue of the writ petition instituted in the year 2006, the petitioner has come to the court to challenge an order passed by the answering respondents way back on 06.09.1999. It is submitted that pursuant to the issuance of order impugned, the petitioner chose to sleep over the matter and acquiesced whatever rights assumed to be available to him.”
5. After putting forth the submission with regard to the delay and laches, the State Government defended its action by asseverating many an aspect, which need not be adverted to.
6. The learned Single Judge vide order dated 14th May, 2010, opined that the show cause notice issued to the employee was not accompanied with the copies of the proceedings as envisaged under Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956 and that did tantamount to denial of reasonable opportunity to the delinquent official, as has been held by the Constitution Bench in