Shambhu Nath vs Lt. Governor, Delhi & Ors.
1999 Latest Caselaw 993 Del

ORDER

N.G. Nandi, J.

1. The enquiry report by the Enquiry Officer (Water) (Annexure 'B') along with the impugned order of punishment dated 14.5.1985 (Annexure 'E') and the order of the appellate authority dated 5.11.1985 (Annexure 'G') and the final order dated 29.6.1992 (Annexure 'K') are prayed to be quashed invoking the jurisdiction under Article 226 of the Constitution of India.

2. It is suggested that the petitioner while working as Chowkidar in the office of Executive Engineer (S & P) Jhandewalan during the year 1975 to allegedly committed acts of omission and omission of misconduct. With the result, he was served with the charge sheet (Annexure 'A') on 29.10.1983; that after conducting the departmental enquiry, the petitioner was found to have contravened Rule 3(a),18(1)(a) and 18(1)(i) of the Delhi Water Supply and Sewage Disposal Undertaking Service (Conduct) Rules, 1970 and was found liable to be dealt with under Section 95 of the D.M.C. Act, 1957; that after completion of the things required, the petitioner was visited with the penalty of removal from service by service of the office order dated 14.5.1985; that the petitioner unsuccessfully appealed to the Commissioner of Municipal Corporation and that his representation for re-entry into service came to be rejected on 11.10.1989.

3. The arguments advanced by the learned counsel for the respondents is that the petitioner is not entitled to the relief since the petition suffer from latches and delay inasmuch as the present petition has been filed in July, 1993, whereas the petitioner's service came to be terminated by order dated 14.5.1985 by the Deputy Director of Vigilance (Annexure 'E'). Even the petitioner's appeal to the Lt. Governor of Delhi came to be dismissed on 5.11.1985 and thereafter the present writ petition came to be filed on 8.7.1993 after 8 years, 1 month and 23 days.

4. It is pertinent to note that the petitioner has not explained the inordinate delay in filing the writ petition on 8.7.1993. In my opinion, the petitioner can be held guilty of latches and delay inasmuch as the petitioner has filed this petition belatedly as there does not appear any justifiable reason which can be said to have prevented this petitioner from filing the writ petition till 8.7.1993. It need hardly be said tht law helps those who are vigilant and not the indolent and the exercise of discretion depending upon the facts and circumstances of the act, to the persons who are not guilty of latches and delay. Thus, the petitioner on this count alone would not be entitled to discretion invoking extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India.

In view of the above, the rest of the questions would pale in insignificance and assume academic importance.

5. It is submitted by learned counsel for the petitioner that the leave of 70 days availed by the petitioner has been sanctioned by the competent authority as found by the competent authority since out of 70 days leave, 12 days was considered as casual leave and the rest as earned leave and the respondents cannot now contend that availing of 70 day's leave by the petitioner is misconduct since the competent authority has regularised/sanctioned the entire leave period as casual leave and earned leave respectively.

6. In this regard, reliance is placed on the decision in the case of The State of Punjab & Ors. Vs. Bakshish Singh . In para 11 whereof it is observed:-

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The trial court also recorded a finding that unauthorised absence from duty having been regularised by treating the period of absence as leave without pay, the charge of misconduct did not survive.

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The lower appellate court confirmed the finding that since the period of unauthorised absence from duty was regularised, the charge did not survive but it did not say a word about the finding relating to the opportunity of hearing the departmental proceedings. Since those findings were not specifically set aside and the lower appellate court was silent about them, the same shall be treated to have been affirmed in the face of these findings, it was not open to the lower appellate court to remand the case to the punishing authority for passing a fresh order of punishment. The High Court, before which the second appeal was filed by the State of Punjab, did not avert itself to this inconsistency as it dismissed the appeal summarily, which indirectly reflects that it allowed an inconsistent judgment to pass through its scrutiny."

7. It is not the say of the respondents in the counter-affidavit that the period of unauthorised absence was not regularised by treating the same as casual leave for 12 days and earned leave for the remaining period.

8. Enquiry report (Annexure 'B') suggests that charge No. 4 is in respect of the delinquent having asked for the charge-sheet dated 28.12.1982 to be served upon him in Hindi. Charge Nos. 2 & 3 are with regard to the delinquent indulging in the acts of misconduct and misbehavior in past i.e. about 10 years back prior to the filing of the charge-sheet dated 28.12.1982. As far as act of misconduct/misbehaviour which has allegedly taken place 10 years back, the charge-sheet for the same filed a decade thereafter cannot be taken cognizance of. Firstly for the reason that it is not suggested from Annexure 'B' as to what acts of misconduct and misbehavior allegedly took place 10 years back and secondly the charge-sheet having been served belatedly i.e. after 10 years of the alleged act of misconduct when the delay is not explained for the belated service of charge-sheet to the delinquent.

9. As far as charge No. 4 is concerned, the same cannot be regarded as a misconduct since asking for Hindi version of the charge sheet dated 28.12.1982 will not in itself tantamount to misconduct because the delinquent is entitled to know the imputation of charges.

10. In the result, the petitioner would not be entitled to relief on the ground of delay and latches and the petition is liable to be dismissed with no order as to costs.

11. Order accordingly.