Delhi High Court
Japan Singh vs Union Of India & Ors. on 16 October, 2017
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 9005/2015
Date of decision: 16th October, 2017
JAPAN SINGH ..... Petitioner
Through: Mr.Bharat Bhushan and Mr.Anish
Kulshrestha, Advs.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr.Arun Bhardwaj, CGSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
The petitioner is Ex-Head Constable who was charge sheeted under
the Border Security Force Act for deserting service between 14.12.2006
and 03.09.2008 and for doing an act with intent to cause wrongful gain for
self.
2. The petitioner vide order dated 28.12.2008, which has not been
placed on record, after trial in the Summary Security Force Code, was
WP(C) 9005/2015 Page 1
dismissed from service.
3. The petitioner filed an appeal which was dismissed vide order dated
24.08.2009. This order records that the offence of overstay for very long
duration of 628 days was with the ulterior motive to avoid trial on the
serious offence of smuggling and an in-disciplined person was unfit to be
retained in a force like BSF.
4. Learned counsel for the petitioner submits that the petitioner was
held to be guilty for the second charge i.e. for doing a thing with the intent
to cause wrongful gain to himself, however, the finding of guilty was
reversed by the DIG, Reviewing Officer, vide order dated 16.02.2009.
This fact was duly noticed in the order dated 24.08.2009 passed by the
Appellant Authority. The fact that the petitioner has been held not guilty
for the second charge would not per-se make the finding of the Appellant
Authority on the first charge null and void or bad in law.
5. The petitioner, it is apparent before us, had accepted the order of
dismissal and did not challenge the same for nearly 7 years till the present
writ petition was filed on 17.08.2015.
6. The petition is clearly bad on account of delay and laches as well as
acquiescence. The writ petition does not set out and give reasons as to
why the petitioner could not approach the Court between the period 2009
to 2015, to challenge his dismissal.
7. The charge against the petitioner was of desertion and unauthorized
absence for 628 days, which as per the findings recorded, was with the
malafide intention and ulterior motive to avoid trial in the charge of
smuggling which the petitioner was then facing. The petitioner had faced
the trial in which dismissal order was passed after he was apprehended by
WP(C) 9005/2015 Page 2
the police. In light of the charge, we are not inclined to overlook and
condone the delay.
8. Learned counsel for the petitioner prays that time may be granted
for filing additional affidavit explaining the delay. It is submitted that the
petitioner was unwell. This writ petition has remained at the stage of
admission from 25.09.2015 and has been adjourned at the petitioner's
request from time to time. It was once also dismissed in default and then
restored vide order dated 10.01.2017. Thus, we find that enough time and
opportunity was given to the petitioner. In case the petitioner had any
ground or reason and good explanation for the delay, the same should
have been set out and given in the writ petition with relevant documents in
support.
9. In view of the aforesaid, we find no merit in the writ petition.
The same is dismissed with no order as to cost.
SANJIV KHANNA, J
NAVIN CHAWLA, J
OCTOBER 16, 2017/vp
WP(C) 9005/2015 Page 3
