* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No.104/2012
% Date of Decision: 06.01.2012
Vimal Chandra Mishra .... Petitioner
Through Mr. Ron Bastian, Advocate
Versus
Union of India & Ors. .... Respondents
Through Mr. Sumeet Pushkarna, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA
ANIL KUMAR, J.
*
1. The petitioner has sought the recall of the Court of Inquiry which allegedly took place and the quashing of his order of dismissal, if any, from the service w.e.f. 31st August, 2005. The petitioner has also prayed for directions to the respondents to reinstate the petitioner with continuity in service and to grant all the benefits of the service to him as if the he was in the service throughout the period starting from the date of his dismissal from service.
2. Brief facts to comprehend the controversies are that the petitioner was appointed as Class IV Staff Cook with the Border WP(C) No.104/2012 Page 1 of 10 Security Force on the basis of the proceedings taken by the Commandant, Headquarter 11 Bn. BSF, Panjipara, West Dinajpur, West Bengal.
3. The petitioner asserted that he has served the Force with utmost sincerity and efficiency and even a certificate of appreciation was given to him when he was serving with the 91 Bn.
4. According to the petitioner, he served the BSF for a period of 17 years. While he was posted at Bn. No.91, Headquarters Kalakot (Poonch-Rajouri Sector) in Jammu & Kashmir, he was given 60 days leave w.e.f. 22nd February, 2005 to 23rd April, 2005 for the treatment of his son who had been suffering from severe brain disease.
5. The petitioner contended that he too had undergone treatment from 19th April, 2005 to 11th July, 2005 on account of jaundice and acute spinal pain. He pleaded that during the period he was recuperating from his ailment, a flood of unprecedented scale had broken out in Northern Bihar which severely affected his village, namely, Panch Bodh, which got totally submerged. According to him, such devastating flood was never witnessed in the past 30 years. WP(C) No.104/2012 Page 2 of 10
6. The petitioner's plea is that the flood worsened his situation as he was already struggling with the treatment of his son and himself and in addition he lost all of his belongings to the flood. In the circumstances, he could not report his predicament to the Rear Headquarter of BSF or any other superior officer as all the communication networks were disrupted during the flood. The petitioner relied on the news report in Dainik Jagran dated 29th August, 2005 reporting the drowning of 16 persons on account of the capsizing of a boat in the Darbhanga district He has also produced a copy of a certificate given by Dr. M.M. Kohlay, DMS stating that Sh. Vikas Chandra Mishra, S/o Sh. Vimal Chandra Mishra was undergoing treatment since 8th January, 2005. The petitioner has also produced a certificate of Dr. B. Mishra, MBBS, a General Physician dated 11th July, 2005 stipulating that Sh. Vimal Chandra Mishra was under his treatment from 19th April, 2005 to 11th July, 2005 for jaundice and UTD and that now he is fit to resume his normal work.
7. The contention of the petitioner is that when he reported to the Transit Camp, Jammu on 1st September, 2005, he was directed to report to the Under Bn. Commandant, Rear Headquarter, Nowessara (91 Bn.). He was however, not allowed to report by the Yellow Bn. Havildar Major and was informed orally that he had been dismissed WP(C) No.104/2012 Page 3 of 10 from service by order No. 1592 (OSL-V.C. MOS) 10244294 dated 31st August, 2005. The petitioner was further directed to go to Headquarter at Kalakot. The 21-C, Offg. Commandant Sh. R.K. Dua also orally informed him that he had been dismissed from service and therefore the explanation that the petitioner had wanted to give was not accepted nor was he given any opportunity to justify that his absence was for the reasons beyond his control.
8. The petitioner, therefore, made a representation dated 1st October, 2005 regarding his reinstatement which was rejected by the DC/DDO for IG, BSF, Jammu by letter dated 6th December, 2005.
9. After the rejection of the petitioner's representation dated 1st October, 2005, the petitioner made an appeal for his reinstatement to the Dy. Inspector General (Personnel) on 29th January, 2009 and also sent a legal notice dated 23rd July, 2010 which was replied to by communication dated 20th October, 2010.
10. In the reply given on behalf of the respondents, it was categorically disclosed that the petitioner was sanctioned 60 days leave w.e.f. 21st February, 2005 to 21st April, 2005 with permission to avail suffix 22nd April, 2005 being Sunday and that he had to rejoin the duty on 23rd April, 2005. As he failed to rejoin the duty on 23rd WP(C) No.104/2012 Page 4 of 10 April, 2005, the Court of Inquiry was conducted in accordance with Section 62 of the BSF Act, 1968. A show cause notice was also issued to the petitioner but he did not respond to the same.
11. The respondents also disclosed about the past record of the petitioner, which revealed that the petitioner had been awarded four punishments under Section 19 (b) of the BSF Act, 1968. It was also disclosed that he had overstayed the leave granted to him on nine previous occasions. However, in the past, a lenient view was taken and his overstay was regularized. The respondents also disclosed that the petitioner had submitted a petition to the DG BSF, for his reinstatement which was rejected by the Competent Authority on 8th September, 2006. Since the petitioner has been a habitual defaulter, he was dismissed from service w.e.f. 31st August, 2005 after observing all the legal formalities as prescribed in the BSF Act and Rules.
12. The petitioner has challenged his dismissal by order dated 31st August, 2005, inter alia, on the ground that he was unaware of whether the Court of Inquiry or any other legal formalities had ever taken place, as he had not received any show cause notice. The petitioner has also urged that he has not been served with any notice intimating that he had been dismissed from the service. The WP(C) No.104/2012 Page 5 of 10 petitioner's plea is that the letter dated 20th October, 2010 in reply to the legal notice sent on his behalf, is totally evasive and does not disclose any details regarding the mode of the service of notice. The petitioner also asserted that the penalty of the termination of his service is disproportionate to his alleged delinquency as he had overstayed on account of the illness of his son and his own illness and the unprecedented floods in his village.
13. The learned counsel for the respondents, Mr. Sumeet Pushkarna, who has appeared on advance notice has contended that the pleas taken by the petitioner are incorrect as the termination order dated 30th August, 2005 was given to him on 1st September, 2005 when he had come back to join his duties. He contended that the petitioner had made a representation dated 1st October, 2005 almost after 30 days which representation was rejected on 6th December, 2005. Therefore, it is contended that the petitioner could not have made the representations without the copy of the order of his dismissal.
14. The learned counsel has also contended that the petitioner is not entitled for any discretionary relief as he has deliberately concealed about the previous punishments, as he was punished four times earlier and had overstayed on nine occasions prior to this. The WP(C) No.104/2012 Page 6 of 10 counsel has also contended that the petition should not be entertained on account of delay and latches, as even according to the averments made by the petitioner, his plea for reinstatement after dismissal from service on 31st August, 2005 was rejected by letter dated 6th August, 2005. From 6th August, 2005, the petitioner has not averred as to why he did not take any steps or do anything and waited till 29th January, 2009 to make another representation to the Dy. Inspector General and thereafter, again waited for almost 17 months for sending the legal notice. The learned counsel for the respondents, in the circumstances, has contended that the petitioner has failed to give any cogent reason for the delay on his part and therefore the petition is liable to be dismissed.
15. This Court has heard the learned counsel for the parties in detail. From the perusal of the petition it is apparent that the petitioner did not disclose that he had been punished four times earlier under Section 19(B) of the BSF Act, 1968 and that he had overstayed the leave granted to him on nine occasions. What has been stated is that on a few occasions he had overstayed on account of his son's illness. It appears that the petitioner has deliberately not disclosed the detailed facts about his overstaying the leave and the nature of the illness of his son. The certificate produced by the petitioner regarding the illness of his son is also by a Doctor who is WP(C) No.104/2012 Page 7 of 10 DMS. The learned counsel for the petitioner is further unable to disclose the alleged illness with which the son of the petitioner was suffering. The certificate about the illness of the son of the petitioner does not inspire any confidence. Similarly, the certificate produced by the petitioner about his own illness does not inspire much confidence either. If the petitioner was sick and his leave was expiring on 21st April, 2005, the petitioner should have sent the certificate about is alleged illness which started on 19th April, 2005 before the expiry of his leave.
16. The learned counsel for the respondent's plea that the petition suffers from delay and latches is also to be accepted as no cogent reason has been given by the petitioner to file the petition almost after six years after his plea for reinstatement was rejected on 6th December, 2005. It is not denied by the petitioner that the communication dated 6th December, 2005 was received by him, nor is it contended that the copy was obtained by him later on. If the petitioner had received the communication dated 6th December, 2005, at the address given in the communication, which was also the address of the petitioner in the official record, it cannot be believed that the petitioner had not received the other communications sent to him by the respondents for conducting the inquiry against him. WP(C) No.104/2012 Page 8 of 10
17. It has been held in a number of cases by the Supreme Court as also this Court that stale claims should not be entertained by the Courts and that the failure to make out grounds to condone the delay in seeking remedy in law is sufficient in itself to oust the petitioner. In this connection, reference can be made to the following precedents:
(i) Rajalakshmiah v. State of Mysore AIR 1967 SC 993
(ii) J.N. Maltiar v. State of Bihar MANU/SC/0382/1973
(iii) C.B.S.E. v. B.R. Uppal and Ors. MANU/DE/8142/2006
(iv) Savitri Sahni v. Lt. Governor, NCT of Delhi and Ors.
MANU/DE/8673/2006 The petitioner, therefore, is not entitled for any relief on the ground of delay and latches as he has not disclosed any reason for the delay. Hence, the writ petition is liable to be dismissed on the ground of delay and latches itself.
18. In the totality of the facts and circumstances, this Court does not find any sufficient reason to interfere with the decision of the respondents to dismiss the petitioner from the service. The learned counsel for the petitioner has also failed to show any illegality, irregularity or such perversity in the decision of the respondents WP(C) No.104/2012 Page 9 of 10 which will require the interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
19. The writ petition is without any merit and it is, therefore, dismissed.
ANIL KUMAR, J.
J.R.MIDHA, J.
January 06, 2012 rs WP(C) No.104/2012 Page 10 of 10