Chattisgarh High Court
D. R. Deshmukh vs Union Of India And Ors on 6 February, 2025
Author: Rajani Dubey
Bench: Rajani Dubey
1
2025:CGHC:6844
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on : 13-12-2024
Order passed on: 06-02-2025
WPS No. 1314 of 2015
D. R. Deshmukh S/o C.R. Deshmukh Aged About 42 Years Working As
Constable In Railway Protection Force, Durg No. 7100 R/o Kasaridih, Police
Station Durg, Civil And Revenue District Durg Chhattisgarh
... Petitioner
versus
1 - Union Of India through Secretary, Department Of Railway, Railway Board
Mantralaya, New Delhi.
2 - Chief Security Commissioner, Railway Protection Force R.P.F., South
Eastern Central Railway, Bilaspur Chhattisgarh
3 - Divisional Security Commissioner, Railway Protection Force R.P.F. Raipur
Chhattisgarh
4 - Assistant Security Commissioner, South Eastern Central Railway, Bilaspur
Chhattisgarh
... Respondents
For Petitioner : Mr. Arvind Shrivastava, Advocate.
For Respondents : Mr. Bhupendra Kumar Pandey, Advocate.
Hon'ble Smt. Justice Rajani Dubey, J
CAV Order
The petitioner has filed the instant petition for setting aside the order
dated 8.5.2008 (Annexure P/1) passed by respondent No.2 in his revision
petition as well as the orders dated 10.9.2007 (Annexure P/7) and 15.6.2007
(Annexure P/5) passed by respondents No. 3 & 4 respectively.
02. Case of the petitioner, in brief, is that a charge sheet was issued to the
petitioner on 19.8.2006 by the respondent-department on the allegation that
while he was on Sentry duty at RPF Post/Durg along with other constables,
accused namely Yunus @ Khamman who was arrested on permanent
warrant issued by SRM, Raipur in connection with Case No.02/92 under
RP(UP) was kept out side of Hazat with handcuff and the said accused could
manage to escape by removing the handcuff and absconded from the RPF
custody. The above act of the petitioner tantamount to violation of Rule
146.2(i) of RPF Rules, 1987 which renders him liable for disciplinary action.
Accordingly, departmental inquiry was conducted against the petitioner and
vide order dated 15.6.2007 (Annexure P/5) respondent No.4 held him guilty
of the charges and imposed punishment of reduction of pay in lower stage i.e.
Rs.3050 in scale of 3050-4590 for five years with cumulative effect.
03. The petitioner challenged the said order in appeal but the same was
also dismissed by respondent No.3 vide order dated 10.9.2007 (Annexure
P/7). Thereafter, the petitioner filed a revision before respondent No.2 which
also came to be dismissed vide order dated 8.5.2008 (Annexure P/1). The
petitioner then filed a mercy petition which was returned on 13.12.2013 vide
Annexure P/10. Hence this petition for the following relief:
"10.1 That, the Hon'ble Court may call the entire record from the office
of respondent authorities for its kind perusal.
10.2 That, the Hon'ble Court by issuing appropriate writ set
aside/quashed the impugned order dated 08.05.2008 passed by
respondent No.2 in Revision Petition as well as order dated
10.09.2007 and 15.06.2007 passed by respondent no.3 & 4
respectively.
10.3 Any other relief or relief(s) which this Hon'ble Court may think
proper in view of the facts and circumstances of the case may
also kindly be granted."
04. Learned counsel for the petitioner would submit that since there is no
eyewitness and the defence witness produced by the petitioner was also not
examined by the Inquiry Officer, the impugned orders passed by the
respondent authorities are illegal, arbitrary and liable to be set aside. The
contradictions and omissions in the statements of the witnesses have not
been properly appreciated by the respondents. The petitioner was not
afforded reasonable opportunity of hearing in the departmental inquiry. No
presenting officer was appointed in the said inquiry and the Inquiry Officer
himself played both the roles of Inquiry Officer and Presenting Officer, as
such the whole departmental inquiry stands vitiated. Further, the Inquiry
Officer heavily relied upon the statement of accused Yunus @ Khamman
allegedly got recorded during preliminary inquiry and before the petitioner
whereas it is a concocted statement and not recorded in presence of the
petitioner. Although his statement has been relied upon by the Inquiry Officer
but he was not examined as a witness during recording of evidence in the
departmental inquiry. In such circumstances, his statement could not have
been looked into because he was neither examined nor opportunity of his
cross-examination was afforded to the petitioner during departmental inquiry.
He further contended that when the petitioner submitted a list of
defence witnesses including the said Yunus @ Khamman as defence
witness, the Inquiry Officer declined to provide such opportunity on the
ground that the said statement is reliable because it has been stated by
Yunus @ Khamman in presence of the petitioner. This observation of the
Inquiry Officer is absolutely arbitrary and illegal because his statement was
recorded during preliminary inquiry and not in the concerned departmental
inquiry and no opportunity of his cross-examination was provided to the
petitioner. Thus, looking to the manner in which the departmental inquiry was
conducted against the petitioner de horse the principles of natural justice and
without appointment of Presenting Officer, the impugned punishment order as
also the appellate and revisional orders are liable to be set aside and the
matter needs to be remanded to the concerned authority for deciding the
matter after affording sufficient and reasonable opportunity of hearing and
defence to the petitioner.
05. On the other hand, learned counsel appearing for the
respondents/Railways would submit that the present petition is not
maintainable and is liable to be dismissed on the sole ground of delay and
laches as the grievance of the petitioner relates to the year 2007-08 whereas
it has been filed in the year 2015 with an inordinate delay of seven years
without any plausible explanation therefor.
As regards merits of the case, he submitted that there are concurrent
findings of fact recorded by the respondent authorities after proper
appreciation of oral and documentary evidence and affording sufficient
opportunity of hearing to the petitioner. He was found guilty in discharge of
his duties with due promptitude and diligence as a member of the disciplined
force. The punishment awarded to the petitioner is commensurate with the
misconduct on the part of the petitioner as in such profession integrity is of
paramount consideration. Learned counsel would next submit that statement
of the accused Yunus @ Khamman was recorded in presence of the
petitioner who put his signature on the same and it was also read over to him.
At that point of time, no objection was raised by the petitioner and therefore,
now he is estopped from taking a plea that principles of natural justice have
not been followed. Copy of statement of the accused is filed as Annexure R/1.
Statements of other witnesses were also recorded in presence of the
petitioner and he was provided opportunity to cross-examine them vide
Annexure R/2. The petitioner was, in fact, afforded ample opportunity to
contest his case by way of producing documentary evidence but he failed to
produce the same. The findings recorded by the Inquiry Officer are strictly in
accordance with law which were subsequently confirmed by the higher
authorities upon due appreciation of the material on record. Therefore, the
present petition being devoid of any substance is liable to be dismissed.
06. Replying to the contention of the respondents on the point of delay and
laches, learned counsel for the petitioner would submit that cause of action
arose in favour of the petitioner when his mercy petition was returned on
13.12.2013. This writ petition was filed on 27.3.2015 and as such, there is
delay of only about 1 year and 3 months which cannot be termed as an
inordinate delay. In fact, after passing of the impugned order, the petitioner
was in financial hardship because his pay scale was reduced and he was
maintaining his family with difficulties. It got tougher when he was posted in
Karanji and after one year transferred to Ambikapur whereas his family was
residing in Durg. There being no central school in Karanji, he was not in a
position to shift his family there and although there was central school in
Ambikapur but it being mid academic session, admission of his children was
not possible. He also has the responsibility of looking after his 70 years ailing
mother. Further, though the necessary papers were handed over to the then
counsel but for the reasons best known to him, inadvertently the petition
could be drafted, signed and filed on 27.3.2015. Thus, in the given set of facts
and circumstances of the case, the delay occurred in filing the petition was
beyond control of the petitioner and it being bonafide deserves to be
condoned.
Reliance has been placed on the decision of the Hon'ble Supreme
Court in the matter of Tukaram Kana Joshi and others Vs. Maharashtra
Industrial Development Corporation and others reported in (2013) 1 SCC
353.
07 Heard learned counsel for the parties and perused the material
available on record.
08. It is an admitted position in this case that the petitioner is working with
the respondent department. Charge sheet was issued to the petitioner on
19.8.2006 and thereafter Inquiry Officer was appointed who after conducting
departmental enquiry found the charges leveled against him proved. The
disciplinary authority imposed punishment of reduction of his pay in lower
stage i.e. Rs.3050 in scale of 3050-4590 for five years with cumulative effect
vide order dated 15.6.2007 (Annexure P/5). The petitioner then filed an
appeal against this order which was dismissed on 10.9.2007 (Annexure P/7)
and thereafter, the revision filed by the petitioner was also dismissed by
respondent No.2 vide order dated 8.5.2008 (Annexure P/1). The petitioner
then filed a mercy petition which was not entertained and returned on
13.12.2013 (Annexure P/10).
09. As per the petitioner, his revision was dismissed on 8.5.2008 and he
filed mercy petition on 1.8.2013 (Annexure P/9) and this petition was returned
by the respondent-department on 13.12.2013 (Annexure P/10) on the ground
that there is no provision for mercy petition and the petitioner has already
exhausted all the administrative channels. Thereafter, the petitioner filed the
instant writ petition on 27.3.2015.
It is thus clear from all the documents that the impugned order of
Annexure P/1 was passed by respondent No.2 on 8.5.2008 and the petitioner
filed the instant writ petition after around seven years.
10. The co-ordinate Bench of this Court in the matter of Aditya Narayan
Jaiswal Vs. State of CG, WPS No.8013/2011, decided on 16.03.2016, while
dealing with the issue of delay and laches in service matters observed in
paras 4 & 5 as under:
4. In the matter of S. S. Balu and another v. State of Kerala and
others (2009) 2 SCC 479, the Supreme Court has held that
even in cases where similar reliefs have been allowed in favour of
other persons, the candidate approaching the Court after
substantial length of time is not entitled to succeed on the
strength of similar order.
5. The writ petition suffers from delay and laches. The Supreme
Court in the matter of Chennai Metropolitan Water Supply and
Sewerage Board and others v. T.T. Murali Babu (2014) 4 SCC
108 has held thus:-
"15. In State of M.P. v. Nandlal Jaiswal the Court observed
that: (SCC p. 594, para 24)
"24. ... it is well settled that the power of the High Court
to issue an appropriate writ under Article 226 of the
Constitution is discretionary and the High Court in the
exercise of its discretion does not ordinarily assist the
tardy and the indolent or the acquiescent and the
lethargic."
It has been further stated therein that: (Nandlal Jaiswal
case, SCC p. 594, para 24)
"24. ... If there is inordinate delay on the part of the
petitioner in filing a writ petition and such delay is not
satisfactorily explained, the High
Court may decline to intervene and grant relief in the
exercise of its writ jurisdiction."
Emphasis was laid on the principle of delay and laches
stating that resort to the extraordinary remedy under the
writ jurisdiction at a belated stage is likely to cause
confusion and public inconvenience and bring in
injustice.
16. Thus, the doctrine of delay and laches should not be
lightly brushed aside. A writ court is required to weigh the
explanation offered and the acceptability of the same. The
court should bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the primary
principle that when an aggrieved person, without adequate
reason, approaches the court at his own leisure or pleasure,
the court would be under legal obligation to scrutinise
whether the lis at a belated stage should be entertained or
not. Be it noted, delay comes in the way of equity. In certain
circumstances delay and laches may not be fatal but in most
circumstances inordinate delay would only invite disaster for
the litigant who knocks at the doors of the court. Delay
reflects inactivity and inaction on the part of a litigant -- a
litigant who has forgotten the basic norms, namely,
"procrastination is the greatest thief of time" and
second, law does not permit one to sleep and rise like a
phoenix. Delay does bring in hazard and causes injury to the
lis."
11. It is evident that the petitioner filed the present petition with an
inordinate delay of seven years. As per the petitioner, there is delay of only 1
year and 3 months as his mercy petition was returned on 13.12.2013 and
thereafter this petition was filed on 27.3.2015. However, as is clear from
Annexure P/10, there is no provision for filing of mercy petition and the
petitioner has failed to offer any satisfactory explanation for approaching the
Court with such an inordinate delay. The judgment relied upon by the
petitioner being distinguishable on facts is of no help to him.
12. Having regard to the facts and circumstances of the case, in light of the
aforesaid decision of this Court, the present petition is liable to be dismissed
on the ground of delay and laches. It is accordingly dismissed.
Sd/
(Rajani Dubey)
Digitally Judge
MOHD signed
AKHTAR by
MOHD
KHAN AKHTAR
KHAN
Khan
