Sushil Kumar vs Commissioner Of Police & Ors
2010 Latest Caselaw 2097 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             WP(C) No.13935/2009



%                          Date of Decision: 21.04.2010

Sushil Kumar                                                  .... Petitioner
                        Through Mr.Arun Bhardwaj, Advocate.


                                   Versus


Commissioner of Police & Ors                        .... Respondents
                  Through Mr.Rajiv Nanda and Mr.Zeyaul Haque and
                             Mrs.Rachna Saxena, Advocates.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be            YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported                 NO
      in the Digest?



ANIL KUMAR, J.

*

The petitioner, the constable of Delhi Police has challenged the

order dated 16th December, 1998 passed by the Central Administrative

Tribunal, Principal Bench in O.A No.2270/1992 dismissing his original

application assailing the order of termination of his services by order

dated 21st April, 1988.

The service of the petitioner was terminated in exercise of power

under sub Rule (1) of Rule 5 of CCS (Temporary Services) Rules, 1965.

The petitioner has assailed the order primarily on the ground that the

conditions of his service were governed by Delhi Police Act and Delhi

Police (Appointment and Recruitment) Rules and the Central Civil

Services (Temporary Services) Rules, 1965 would not apply and he

could not be terminated under those rules. The petitioner also assailed

the notification issued by the administrator of Delhi Administration by

which the Central Civil Services (Temporary Service) Rules, 1965 had

been made applicable to all the subordinates, civilian, employees and

class IV employees of Delhi Police in addition to the rules and

regulations made under the Delhi Police Act.

The petitioner had contended that under Sections 21 & 22 of

Delhi Police Act, the services of the police constable could be terminated

only after an enquiry, therefore, the provisions of temporary service

rules are in conflict with the said provisions and his termination is

invalid.

The case of the petitioner was contested on the ground that the

petitioner was terminated simply and was not removed from the service

as a measure of punishment.

The Tribunal had held that though there were allegations of

production of bogus employment exchange card, however, the petitioner

was a temporary public servant and, therefore, he could not claim the

benefit available to a permanent Government servant. The reliance was

also placed by the Tribunal on State of U.P v. K.K.Shukla, (1991) 1 SCC

691 holding that a temporary Government servant has no right to hold

the post.

The Tribunal also considered the plea of the respondent of delay

and laches in challenging the order dated 24th April, 1988 whereas the

original application was filed after more than 4 years without disclosing

any just and sufficient reason. The plea taken by the petitioner was that

a similar case was pending before the Tribunal and he was awaiting the

outcome of the other case which was decided on 26th April, 1991 and

thereafter, the original application filed by the petitioner on 29th July,

1992 was not accepted.

The Tribunal has held that pendency of another petition was not

a good ground and in any case even after the decision of another case

pending before the Tribunal on 26th April, 1991, the petitioner failed to

explain further delay from 26th April, 1991 to 29th July, 1992. The

Tribunal also noticed that the original application filed by the petitioner

was also dismissed in default on 17th November, 1997 and the

application for restoration was filed on 23rd February, 1998. Despite the

application for restoration being barred it was allowed subject to a cost

of Rs.4000/-, however, considering the overall facts and circumstances,

the Tribunal had declined to interfere with the order of simplicitor

termination dated 21st April, 1998.

We have heard the learned counsel for the parties. The original

application was dismissed on 16th December, 1998, however, the writ

petition had been filed by the petitioner on 3rd July, 2009 and refiled on

16th December, 2009. The petitioner has again not explained the delay

satisfactorily and the application for condonation of delay only

stipulates that the clerk of the counsel had to go to his village and,

therefore, there was delay even in refiling of the petition. The petitioner

has sought condonation of delay of 125 days by filing an application,

however, no reasons have been given for delay in filing the writ petition.

Along with the application, the affidavit of the clerk who is alleged to

have the file of the petitioner has not been filed. In the circumstances,

the petitioner has failed to explain the delay satisfactorily and there are

delay and laches even in challenging the order of termination before the

Tribunal and no cogent ground has been disclosed by the learned

counsel for the petitioner to interfere with the order of the Tribunal not

condoning the delay in filing the original application.

Even on merits this is not disputed and cannot be disputed that

the petitioner was terminated when he was not in the permanent

regular employment of the respondents. The learned counsel has also

failed to disclose any cogent grounds challenging the notification of the

respondents by which the Central Civil Services (Temporary Services)

Rules have been made applicable to all the Subordinate Civilian

Employees and Class IV employees of Delhi Police in addition to the

rules and regulations made under the Delhi Police Act.

On the facts and circumstances as disclosed, it is apparent that

the foundation of the termination of service of the petitioner is not the

forged registration card of employment exchange produced by the

petitioner though that could be a motive for the same. If the foundation

of termination simplicitor is not the bogus registration card of

employment, the petitioner cannot impugn the simplicitor termination.

No such facts have been disclosed by the petitioner which would show

that the foundation of the termination was the forged registration card

of employment produced by the petitioner.

For the foregoing reasons this Court does not find any illegality or

irregularity in the order of the Tribunal dismissing his original

application by order dated 16th December, 1998 in O.A No.2270/1992

so as to entail any interference by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India.

In the facts and circumstances, the writ petition is without any

merit and it is therefore dismissed.

ANIL KUMAR, J.

APRIL 21, 2010                                MOOL CHAND GARG, J.
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