Mihir Sangma vs The Union Of India And 2 Ors
2021 Latest Caselaw 623 Gua

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GAHC010026442017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/3502/2017

            MIHIR SANGMA.
            S/O- LATE BHALA RAM MARAK, VILL- SINGRIMARI GAROGAON, P.O-
            CHANDWAR, DIST- SONITPUR, ASSAM- 784103



            VERSUS

            THE UNION OF INDIA and 2 ORS.
            REP. BY THE SECY. TO THE GOVT. OF INDIA, MIN OF HOME AFFAIRS,
            NORTH BLOCK, NEW DELHI- 110001

            2:THE DIRECTOR GENERAL
            ASSAM RIFLES
             SHILLONG
             MEGHALAYA

            3:THE COMMANDANT
             28TH ASSAM RIFLES
             C/O- 99 AP

Advocate for the Petitioner   : MR.S BORA

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

JUDGMENT & ORDER (ORAL) Date : 23-02-2021 This writ petition under Article 226 of the Constitution of India is preferred by the Page No.# 2/9

petitioner seeking setting aside and quashing of a discharge order dated 31.10.1999 whereby the petitioner was discharged from the post of Rifleman/Cook in Assam Rifles and a direction has been sought for release of the pensionary benefits of the petitioner as per the provisions of Central Civil Services (Pension) Rules, 1972.

2. The relevant facts projected in this writ petition may be stated as under :

2.1. The petitioner was initially enrolled into Assam Rifles as F/2851282A Rifleman/Cook

on 27.09.1986 and was posted at 28th Assam Rifles on 10.11.1987 after completion of basic training. After being so enrolled, the petitioner was given the duty of cooking food for the Jawans in the Assam Rifles. In the year 1999, the petitioner was serving as a cook in signal

mess at Battalion Headquarter, 28th Assam Rifles. It is the further case of the petitioner that in one particular evening in June, 1999, the petitioner cooked dinner for all the Jawans and served them. At about 09-00 p.m. after finishing his duty, the petitioner went to his family quarter located in the unit area itself where his family used to reside.

2.2. An untoward incident had occurred that night as one Havildar Subhas Singh committed suicide by hanging in the dining hall of the mess. The incident was first witnessed by one of the signal operators in the morning hours. The petitioner came to the signal mess later on to attend his morning duties to cook breakfast, lunch, etc. In view of the untoward incident, the Commanding Officer asked all the Force personnel to attend before him. It is contended that the Commanding Officer specifically targeted the petitioner and abused and threatened him by calling him inside his office. The petitioner also contended that the Commanding Officer had forced him to sign on some papers with the assistance of his clerk.

2.3. On 31.10.1999, the petitioner stated to have received a verbal message from the

office of the Commanding Officer, 28 th Assam Rifles to attend his office and when the

petitioner reached the officer of the Commanding Officer, 28 th Assam Rifles, the petitioner was told that he was discharged from service on his own request. The petitioner was immediately asked to leave the Assam Rifles campus on and from 31.10.1999.

3. Heard Ms. S. Bora, learned counsel for the petitioner and Mr. S.K. Medhi, learned Page No.# 3/9

Central Government Counsel for all the respondents.

4. Ms. Bora has submitted that the Commanding Officer, 28 th Assam Rifles had put the whole blame in respect of the incident of suicide inside the signal mess on the petitioner illegally without any material basis and after threatening him, he obtained the petitioner's signature on some blank papers with the assistance of his clerk. It was only on 31.10.1999, the petitioner was informed orally that he was discharged from service on his own request. According to the petitioner, the petitioner never requested for discharge from service. The

contention of the petitioner is to the effect that the Commanding Officer, 28 th Assam Rifles on coercion collected the signatures of the petitioner on blank papers on 28.06.1999 and converted one of those blank papers into an application for resignation, thereby, making it an application as if it was made at the request of the petitioner. Even if it is assumed that it was an application made on his own request, no counseling was given to him prior to acceptance of such discharge.

4.1. Aggrieved by such action on the part of the respondent authorities, the petitioner stated to have submitted a representation on 20.08.2010 requesting the respondent authorities to release his GPF amount and to furnish a copy of the discharge certificate alleging that it was not given to him at the time of discharge.

4.2. The petitioner stated to have submitted another representation on 07.12.2011 wherein he alleged that he was terminated from service after obtaining his signature on blank

papers by the Commanding Officer, 28th Assam Rifles purportedly putting the blame on the petitioner with regard to the incident of suicide that happened in the signal mess in the night of 28.06.1999.

4.3. The prime contention of the learned counsel for the petitioner is that the alleged discharge from service was not made at his own request and it was the handywork of the

Commanding Officer, 28th Assam Rifles. Therefore, it cannot be considered to be a resignation which entailed forfeiture of past service.

5. Countering the above submissions of the learned counsel for the petitioner, learned Page No.# 4/9

Central Government Counsel has submitted, by referring to the affidavit-in-opposition, that the petitioner submitted an application on 28.06.1999 for discharge from service at his own request due to his domestic problems. The petitioner had also signed an undertaking dated 28.06.1999 stating that he was aware of the consequences that in the event of his discharge from service he would not be entitled to any pensionary benefit. The petitioner was interviewed by the competent authority explaining about the disadvantages in proceeding on discharge before completion of the period of service entitled for pensionary benefit.

5.1. When the petitioner insisted to process his application for discharge, the application was processed accordingly and the same was sent to the Directorate General, Assam Rifles through proper channel for approval by the competent authority. After due consideration, the competent authority had, by his communication dated 20.07.1999, approved the discharge of the petitioner along with five other Force personnel w.e.f. 30.10.1999.

5.2. After approval of discharge from service, the terminal benefits due to the petitioner were released. The petitioner in his application for discharge from service had cited his domestic problems as a ground for such application and did not apply for withdrawal of his resignation within the prescribed period, he submits. According to the respondents, the petitioner had put in a total of 11 years 11 months and 20 days service with the Assam Rifles and because of his resignation, the petitioner was not entitled for any pensionary benefit due to lack of mandatory 20 years of qualifying service.

5.3. Learned counsel for the respondents has submitted that the petitioner was discharged from service at his own request on 30.10.1999 and the petitioner did not challenge the said order of discharge in any manner till the year 2017. The petitioner has submitted few representations in relation to the matter of discharge with the first representation being filed on 07.12.2011 which too was after a period of more than 12 years. He has strenuously submitted that this writ petition cannot be entertained solely on the ground of delay and laches.

6. I have considered the submissions of the learned counsel for the parties and perused the materials on record.

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7. There is no dispute to the fact that the petitioner was enrolled into the Assam Rifles

on 27.09.1986 as a Recruit Cook and was posted at 28th Assam Rifles on 10.11.1987. It is noticed that the petitioner had submitted an application dated 28.06.1999, addressed to the Directorate General, Assam Rifles through the proper channel wherein it was stated that due to domestic problems at home, he was not in a position to continue his service any more in the Assam Rifles and requested the authorities to allow him to proceed on discharge to solve domestic problems at his home. On receipt of the said application, the Commanding Officer,

28th Assam Rifles recommended the case of the petitioner on 28.06.1999. An undertaking also appeared to have been given by the petitioner on 28.06.1999 wherein it was stated that the petitioner understood that in the event of his discharge at his own request on compassionate ground, he shall not be entitled to any pensionary benefits for the service rendered by him in the Assam Rifles. The said certificate was under the signature of the petitioner and his left thumb impression. It was countersigned by the Commanding Officer,

28th Assam Rifles.

8. The Commandant Interview Certificate dated 28.06.1999 is also found enclosed with the counter affidavit of the respondent authorities wherein it was mentioned that the

petitioner was personally interviewed by the Commandant, 28th Assam Rifles and the petitioner was apprised regarding discharge rule before recommending his discharge application. The petitioner was explained about non-entitlement of pensionary benefits irrespective of the length of service put in by him because of his resignation from service at his own request.

9. It further transpires from a communication dated 20.07.1999, annexed to the counter affidavit of the respondent authorities, that the competent authority in the office of the Directorate General, Assam Rifles had approved the discharge of six Assam Rifles Force personnel including the petitioner, on compassionate ground and such discharge would take effect from 30.10.1999. After approval of such discharge on 20.07.1999, the petitioner was released from service w.e.f. 30.10.1999.

10. Notwithstanding the contentions made by the petitioner in this writ petition, filed in Page No.# 6/9

the year 2017, it is an admitted position that the petitioner was discharged from service in the year 1999. It has further emerged from the materials on record that the petitioner had preferred his first representation in relation to his discharge from service only on 07.12.2011. In the said representation, the petitioner sought to apprise the respondent authorities that he and others had no connection with the alleged incident of suicide that occurred on 28.06.1999 but they were terminated from service without any proper reason and he prayed that he be exonerated from the allegations made against him. It has been averred on behalf of the respondents that the petitioner's discharge was not related the incident of suicide and was because of his own request. The said representation was responded to by the respondent authorities on 21.12.20011. Thereafter, the petitioner submitted another representation on 17.01.2017. After submission of the said representation on 17.01.2017, the petitioner had approached this Court by this writ petition on 08.06.2017.

11. It is settled legal position that the period of limitation commences from the date on which the cause of action first takes place. Mere submission of representation does not prolong the period of limitation. With regard to the period of limitation, the Supreme Court in State of Tripura and others vs. Arabinda Chakraborty and others reported in (2014) 6 SCC 460 has observed as under :

"15. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. In the instant case, it is a fact that the respondent was given a fresh appointment order on 22.11.1967, which is on record. The said appointment order gave a fresh appointment to the respondent and therefore, there could not have been any question with regard to continuity of service with effect from the first employment of the respondent.

16. It is pertinent to note that service of the respondent had been terminated because of his unauthorised absence. It was unfortunate that the suit had been Page No.# 7/9

filed after 13 years and therefore, the relevant record pertaining to the order of termination of the respondent had been destroyed or could not be traced but in such an event, no harm should be caused to the appellant-employer because the appellant-employer was not supposed to keep the record pertaining to the order terminating service of the respondent forever. Had the respondent filed the suit within the period of limitation i.e. within three years from the date when he was given a fresh appointment on 22.11.1967, possibly the Government could have placed on record an order whereby service of the respondent had been terminated. The respondent, after having additional qualification approached the concerned authority in the month of November, 1967 with a request for fresh appointment and therefore, by virtue of an order dated 22.11. 1967 he was given a fresh appointment as a librarian. In fact there was no question of losing his seniority because he was given a fresh appointment by virtue of the order dated 22.11. 1967."

12. In Life Insurance Corporation of India and others vs. Jyotish Chandra Biswas, reported in (2000) 6 SCC 562, the respondent therein was found guilty of unauthorized absence from duty for a long period and he was consequently dismissed from service. He submitted a representation seeking re-employment in the Corporation after a lapse of five years. After about six years from dismissal, the respondent therein filed a writ petition challenging his termination from service by filing a writ petition without any explanation for the inordinate delay of six years. The Hon'ble Supreme Court has observed that such inaction and inordinate delay only indicated that the respondent accepted the order of termination from service, if not expressly but impliedly. It is observed that the learned Single Judge was right in dismissing the writ petition when there was no explanation whatsoever given by the respondent in the writ petition for delay of about six years and accordingly, dismissed the writ petition on the ground of delay and laches.

13. In State Bank of Indore vs. Govindrao, reported in (1997) 2 SCC 617, the writ petition was filed challenging an order of dismissal from service after ten years from the date of the impugned order. A delay in challenging the dismissal order after a period of ten years was found fatal. It was held that the High Court should not have entertained the writ petition at all and it should have been dismissed in limine.

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14. In Chennai Metropolitan Water Supply and Sewerage Board and others vs. T.T. Murali Babu, reported in (2014) 4 SCC 108, the question of maintainability of the writ petition on the ground of delay and laches was considered wherein the writ petition was filed after four years delay challenging the order of dismissal. The Hon'ble Supreme Court of India has observed as under :

"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.

17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of Page No.# 9/9

probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."

15. Reverting back to the facts of the case, it is found that after the order of discharge of the petitioner passed in the year 1999 by releasing him from service, the petitioner preferred his first representation on 07.12.2011. The ground for delay that has been sought to be urged by the petitioner that he was suffering from mental illness during the period from 2000-2009 and in support of such contention, he has submitted a certificate from the Village Headman. In our considered view, the Village Headman is not competent to certify that a person had suffered from mental illness. Had it been certified from a registered medical practitioner, competent to certify about mental illness, it would have been a different consideration but the same is not the case here. The respondent authorities had responded to the said representation on 21.12.2011 stating in clear terms that he was discharged pursuant to his application dated 28.06.1999 and it was further intimated to him by another communication dated 06.03.2012 that his discharge from service at his own request took effect from 31.10.1999. After being so intimated, the petitioner waited for another 5/6 years till 08.06.2017 to file the present writ petition challenging his order of discharge. Apart from the ground of mental illness supported by the certificate of the Village Headman, no other specific ground for the delay has been urged in the writ petition.

16. In the aforesaid fact situation obtaining in the case, this Court finds that this writ petition has suffered from the view of inordinate and inexplicable delay and cannot be entertained at this point of time. Accordingly, this writ petition is liable to be dismissed and it is accordingly done. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant