Jagdish Kumar vs Uoi & Ors.
2009 Latest Caselaw 4653 Del

#48

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Decision : 16th November, 2009

+                       W.P.(C) 3320/1997

JAGDISH KUMAR                                  ..... Petitioner
                          Through: Mr.Arjun Mitra, Advocate

                    versus

UOI & ORS.                                ..... Respondents
                          Through: Ms.Raman Oberoi, Advocate

            CORAM:
            HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
            HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                           No
     3. Whether the judgment should be reported in the Digest? No

PRADEEP NANDRAJOG, J. (Oral)

CM No. 14267/2009

1. On 10.11.2009 the writ petition was dismissed in default

passing the following order:-

'1. The petitioner appears to be playing a cat and mouse game with the Court.

2. Having got a notice issued in the writ petition, there were initial hick-ups, in that, process fee was not filed. Inspite thereof counsel appeared for the respondents on the next date of hearing.

3. On the third date, neither counsel appeared. Rule was issued in the writ petition.

4. None appeared for the petitioner on 02.02.2006 resulting in the writ petition being dismissed in default.

5. A belated application seeking restoration of the

writ petition was filed along with an accompanying application seeking the delay to be condoned. The delay in seeking restoration was of 3 years and 42 days.

6. Taking a lenient view of the matter, on 04.11.2009, delay in seeking restoration was condoned and the order dated 02.02.2006, dismissing the writ petition in default, was recalled. The writ petition was restored for adjudication on merits.

7. A short date was notified so that the counsel does not run away as we are noticing that in a large number of matters, counsel are not appearing. Matters are being dismissed in default. They are being restored. They are being re-dismissed in default. They are being re-restored. We have come across matters where writ petitions have been dismissed in default on as many as five occasions but each time the writ petitions are restored and the hope of the Court that on the next date the counsel would argue the matter is belied.

8. None appeared for the petitioner today at the first call when the matter was called out. It was passed over. None appears even at the second call.

9. We have no option but to dismiss the writ petition in default once again.

10. Dismissed.'

2. Vide CM No. 14267/2009, restoration of the writ petition

has been prayed for.

3. Notice. Counsel as above accepts notice for the

respondents.

4. Though we are not satisfied with the reason given for

non-appearance on 10.11.2009, in the interest of justice, we

allow the application and recall the order dated 10.11.2009 on

the assurance that learned counsel would argue the writ

petition today itself.

W.P.(C) 3320/1997

1. The petitioner was enrolled as Constable in C.R.P.F. and

on 18.09.1995 was a part of a group proceeding from Delhi to

Srinagar. They were travelling in a train which was to

terminate at Jammu.

2. The petitioner was found absconding en-route when the

train left Ambala Cantt. Railway Station.

3. Various notices issued to the petitioner at his residential

address requiring him to report back to duty went un-

responded, resulting in a charge memo dated 18.03.1996

being issued and served upon the petitioner. The gravement of

the allegations against the petitioner was that he was

absconding since 18.09.1995.

4. The petitioner did not participate in the inquiry

proceedings. On 06.08.1996 he wrote a letter stating that,

suffering from epileptic fits, he was medically incapacitated to

join duty.

5. The letter in question was without enclosing any medical

papers. The inquiry officer concluded the inquiry proceedings

and submitted a report on 23.08.1996. Needless to state,

the inquiry conducted was ex parte.

6. An order of dismissal running into two pages was passed

on 03.10.1996.

7. The order of dismissal notes that the inquiry officer has

conducted the inquiry and has returned a finding that the

petitioner had without any reasonable excuse or cause

absconding w.e.f. 18.09.1995.

8. It may be noted at this stage, that the order dated

03.10.1996 was preceded with an opportunity granted to the

petitioner to submit a response to the report of the inquiry

officer. Inspite of being served by Regd. A.D.post, the

petitioner did not submit any response to the report of the

inquiry.

9. We note that the order of dismissal dated 03.10.1996 is a

speaking and reasoned order.

10. Against the order of dismissal the petitioner filed a

statutory appeal to the Inspector General Police, C.R.P.F. at

Srinagar, which was rejected/dismissed vide order dated

11.02.1997. The instant petition was filed.

11. Along with instant petition, the petitioner had filed some

medical papers obtained from a Government doctor which

shows that the petitioner suffers from epileptic fits.

12. We note that the petitioner has not annexed a copy of

the dismissal order. The petitioner has suppressed the fact

that he had filed an appeal against the order of dismissal

before IG, C.R.P.F., Srinagar which was dismissed vide order

dated 11.02.1997. Said order has not even been challenged.

13. In fact, the petitioner has completely suppressed the fact

of filing of the appeal which was dismissed. A colouration has

been given in the instant petition as it the statutory appeal

dated 18.11.1996 (Annexure-P-2) has been filed before the

Director General Police at Delhi and remains undecided. The

impression given is that the said appeal is the statutory appeal

filed.

14. From the afore-noted facts, it is apparent that the

petitioner has suppressed relevant facts. It is apparent that a

proper inquiry has been conducted against the petitioner and

after following the procedures of law a speaking and a

reasoned order of dismissal has been passed.

15. We note that the statutory appeal filed against the order

of dismissal has been dismissed and the said order of dismissal

has not been challenged in the instant writ petition.

16. An attempt has been made to confer jurisdiction upon

this Court by relying upon some alleged statutory appeal to

the Director General, C.R.P.F. at Delhi; the fact being

otherwise. The true fact is that the statutory appeal was filed

before the IG, C.R.P.F. at Srinagar which was rejected.

17. It is a case where this Court would have no territorial

jurisdiction.

18. But, since this petition has remained languishing in this

Court since the year 1997, not due to the reason that the

Court could not spare time to decide the case but on account

of the negligent manner in which the same has been

prosecuted evidenced by the fact that the same suffered

repeated dismissal followed by repeated restorations, we

decide on merits.

19. On merits we note that the epileptic fits are not akin to

schizophrenia. A person who suffers from epileptic fits loses

control of the body during the duration of the fit and when the

same is over, he is as good as a normal person.

20. It is apparent that the petitioner chose not to defend

himself before the inquiry officer. It is apparent that the

petitioner absconded w.e.f. 18.9.1995 and never re-joined

service till he was served with a charge memo and even during

the inquiry chose to sit in his house. It is also apparent that the

order dismissing the statutory appeal filed by the petitioner i.e.

the order dated 11.02.1997 passed by the IG, C.R.P.F.,

Srinagar has not been challenged.

21. The writ petition is dismissed.

PRADEEP NANDRAJOG, J

SURESH KAIT, J NOVEMBER 16, 2009 'hk'