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2016 Supreme(J&K) 354
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.S. Walia, J.
Vijay Kumar – Petitioner
Vs.
State and ors. – Respondents
SWP No.1012 of 2007
Decided On : 26-07-2016
For the Petitioner:Mr. Sachin Sharma Advocate.
For the Respondent: Mr. W.S. Nargal AAG.
The main legal point established in the judgment is that delay and laches in invoking the jurisdiction of the court can be fatal to a petitioner's claim, and the court may decline to entertain a petition due to delay and laches.
Headnote:
Delay and Laches - Service Discharge - Rule 208(g), Rule 335, Rule 336 - The court dismissed the writ petition on the ground of delay and laches, as the petitioner invoked the jurisdiction of the court after an inordinate and unexplained delay of 5 years from the date of accrual of cause of action. The claim was found to be clearly hit by delay and laches.
Fact of the Case:
The petitioner, a Constable in the J&K Police, was discharged from service due to unauthorized absence. The petitioner filed a writ petition seeking quashing of the discharge order and reinstatement with consequential benefits. The petitioner argued that the discharge order was illegal and sought reinstatement.
Finding of the Court:
The court found that the writ petition was filed after an inordinate and unexplained delay of 5 years from the date of accrual of cause of action. The court dismissed the writ petition on the ground of delay and laches, without going into the merits of the case.
Issues: The main issue was the delay and laches in filing the writ petition, as the petitioner invoked the jurisdiction of the court after 5 years from the date of accrual of cause of action.
Ratio Decidendi: The court held that the delay and laches in filing the writ petition were fatal to the petitioner's claim, and the court declined to entertain the petition due to the delay and laches.
Final Decision: The court dismissed the writ petition on the ground of delay and laches, without considering the merits of the case.
1. Writ petition seeks quashing of order No. 278 of 2002 dated 08.02.2002 i.e. Annexure J whereby petitioner who was working as a Constable in the J&K Police was discharged from service as also for quashing of order No.314 of 2002 dated 24.10.2002 i.e. Annexure K passed by the Deputy Inspector General of Police dismissing the mercy petition filed against the order discharging the petitioner from service. Prayer is also for the issuance of a writ, order or direction especially in the nature of Mandamus commanding the respondents to reinstate the petitioner in service w.e.f. 08.02.2002 with all consequential benefits.
2. Brief facts of the case leading to the filing of the writ petition are that pursuant to his recruitment as a Constable vide order No. 674 of 2000 dated 09.6.2000 i.e. Annexure A, the petitioner, joined service at District Police Line's Jammu. Pursuant to order No. 18310-15/DPOB dated 18.08.2000 deputing the petitioner for basic training course, the petitioner reported at Police Training College, Sheri Baramulla, Srinagar (hereinafter referred to as the College) on the same day.
3. That as further averred in the writ petition, after joining the College, the petitioner fell ill, therefore approached his Ustaad to get him medically treated or in the alternative, to grant him leave, but no heed was paid to his request nor was it possible for him to avail treatment from outside the Police Training College. Consequentially, on oral permission being granted by his Ustaad, the petitioner proceeded home and got himself treated at Sub District Hospital Bishnah from 23rd August 2000 till his recovery on 3rd September, 2000 (Medical certificate Annexure B for the period 23.08.2000 to 03.09.2000 is handwritten and does not bear any number of registration of the petitioner for treatment at the hospital concerned nor contains any endorsement number) where after he proceeded to the Police Line's to collect his salary on 4th September, 2000. However, salary was not paid to him. Thereupon, the petitioner proceeded to the College but was not allowed to join and was instead discharged from the College. The petitioner thereafter suffered from pain in the neck and right leg (Medical certificate Annexure E for the period 17.09.2000 to 18.05.2001 is also handwritten besides does not bear any number of registration of the petitioner for treatment at the hospital concerned nor contains any endorsement number). Eventually vide order No.294 of 2000 dated 25.10.2000 i.e. Annexure D, passed by the Senior Superintendent of Police, Jammu, the petitioner was discharged from service.
4. That appeal against order Annexure-D was accepted by the Deputy Inspector General of Police vide order No. 482 of 2001 dated 08.09.2001, petitioner was reinstated and Senior Superintendent of Police, Border was directed to hold a fresh Departmental Enquiry as per Rules. Pursuant thereto, the petitioner was served summary of allegations followed by charge-sheet Annexure-G to which he submitted reply-Annexure-H.
5. Grievance of the petitioner is that pursuant to the fresh Departmental Enquiry, the Enquiry Officer forwarded enquiry report along with recommendations to respondent No.5, who while concurring with the same ordered his discharge from service vide order No. 278 of 2002 dated 08.02.2002 i.e. Annexure-J and ordered treating period of absence as dies-non without recording any evidence or giving any opportunity to him to adduce any evidence in defence, that although the word used in the impugned order was discharge, yet the same had to be construed as removal since the same did not debar him from service. Appeal i.e. mercy petition filed by the petitioner before the DIG Jammu was rejected vide order No.314 of 2002 dated 24.10.2002 i.e. Annexure K. Representation against rejection of the mercy petition was submitted by the petitioners father to respondent No.4, who forwarded the same to respondent No.3 vide communication dated 21.01.2004 i.e. Annexure L
