Vimal Chandra Mishra vs Union Of India & Ors.
2012 Latest Caselaw 117 Del

*            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

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.

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

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

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

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

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

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.

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

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