Punjab-Haryana High Court
Ganesh Kumar vs Registrar General High Court Of Punjab ... on 23 January, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:008990
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
2024:PHHC:008990
(108) CWP-28690-2023
Date of Decision: 23.01.2024
Ganesh Kumar --Petitioner
Versus
Registrar General, High Court of Punjab &
Haryana and others --Respondents
CORAM:- HON'BLE MR. JUSTICE VIKAS BAHL.
Present:- Ms. Malkit Kaur, Advocate for petitioner.
Ms. Deepali Kaur, Advocate for respondents.
***
VIKAS BAHL.J (Oral)
1. This is a Civil Writ Petition filed under Articles 226/227 of the
Constitution of India for issuance of a writ in the nature of certiorari for
quashing the order dated 27.03.2014 (Annexure P-1A), whereby penalty of
stoppage of two annual increments of pay with cumulative effect has been
imposed on the petitioner. Challenge is also to the order dated 09.09.2016
(Annexure P-2) whereby a penalty of withholding of five increments of pay
with cumulative effect has been ordered. Further challenge has been made
to the order dated 27.07.2018 (Annexure P-3) whereby a penalty of
withholding of six increments with cumulative effect has been imposed
upon the petitioner and also to the order dated 27.07.2018 (Annexure P-4)
whereby penalty of withholding of one increment without cumulative effect
has been ordered by respondent no.2.
2. Brief facts of the present case are that the petitioner had joined
the office of respondent no.2 as a Peon and an inquiry was initiated against
the petitioner while he was posted as Water Man in the court of Addl. Civil
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Judge (Sr. Divn.), Ferozepur Jhirka under Rule 7 read with Rule 4 of the
Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter
to be referred to as the "1987 Rules") and Rule 12(2) of the Haryana
Subordinate Courts Establishment (Recruitment and General Conditions of
Service) Rules, 1997 (hereinafter to be referred to as the "1997 Rules") on
the charge that the petitioner had willfully absented himself from duty w.e.f.
27.4.2010 to 19.5.2010 and that he was not available at the headquarter on
9.8.2010 and 10.8.2010. After the conclusion of the departmental
proceedings, an inquiry report dated 9.3.2011 was submitted by the Inquiry
Officer Jasbir Singh, who was the then JMIC, Nuh in which the charges
against the petitioner were proved. The relevant portion to the said inquiry
report has been reproduced at page 29 in Annexure P-1, however, neither
the said inquiry report has been annexed in the present petition nor the same
has been challenged before this Court. The District & Sessions Judge,
Gurgaon vide order dated 17.03.2011 agreed with the Inquiry Report and
issued a show cause notice to the petitioner as to why enquiry report be not
accepted. The petitioner filed his reply dated 09.04.2011 to the said show
cause notice and one of the pleas taken in the said reply was that he was ill
but the District & Sessions Judge, Gurgaon vide order dated 02.01.2012
(Annexure P-1) rejected the said reply on the ground that the petitioner had
failed to produce any document or to examine any doctor in his defence.
The District & Sessions Judge, Gurgaon vide order dated 02.01.2012
(Annexure P-1) agreed with the report of the Inquiry Officer and imposed a
penalty of stoppage of one increment with cumulative effect for the said
unauthorized absence.
3. For a period of more than 10 years the said order has not
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been challenged nor the same is sought to be challenged in the present writ
petition.
4. Another charge sheet under Rule 7 read with Rule 4 of the 1987
Rules read with Rule 12(2) of the 1997 Rules was issued against the
petitioner for willful absence from duty w.e.f. 02.07.2012. In the said case
also regular departmental inquiry was held and the Inquiry Officer vide
Inquiry Report dated 10.02.2014 found the petitioner guilty of willful
absence from duty w.e.f. 02.07.2012 to 16.09.2013 without prior permission
or intimation. The said inquiry report was supplied to the petitioner and the
petitioner in response had submitted that his absence was on account of his
wife being ill and had further submitted that he had no medical certificate
regarding the same and also sought unconditional apology. The District &
Sessions Judge, Mewat vide order dated 27.03.2014 (Annexure P-1/A)
considered all the facts and circumstances and agreed with the Inquiry
Report dated 10.02.2014 submitted by the Inquiry Officer and observed that
the petitioner had remained absent for a long period and could not produce
any medical certificate regarding illness of his wife and thus a penalty of
stoppage of two annual increments with cumulative effect was imposed
upon the petitioner. Even the said order which was passed in the year 2014,
was not challenged for a period of more than 8 years and even the Inquiry
Report dated 10.02.2014 in the said case has neither been placed on record
nor is sought to be challenged.
5. A third charge sheet was issued for creating ruckus in the court
premises under the influence of liquor on 18.05.2015 at 10:08 PM. A reply
was filed to the said charge sheet in which the factum of petitioner having
consumed liquor was not disputed and after the disciplinary proceedings the
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Inquiry Report dated 14.01.2016 was submitted holding the petitioner
guilty. A copy of the said Inquiry Report was supplied to the petitioner and
the petitioner in his reply submitted that he would give assurance that he
would not consume alcohol in future. The District & Sessions Judge,
Mewat vide order dated 09.09.2016 (Annexure P-2) observed that the said
misconduct which had been duly proved warranted removal of the petitioner
from service, yet, by taking a lenient view imposed the penalty of
withholding of five increments with cumulative effect. Even the said order
passed on 09.09.2016 for a period of more than 6 years was not challenged.
6. A fourth inquiry was initiated against the petitioner for absence
from duty w.e.f. 10.03.2015 to 18.03.2015, 06.04.2015 to 06.06.2015 and
01.07.2015 to 16.07.2015 and a charge sheet was issued to the petitioner
regarding the same, to which a reply was filed, which was found
unsatisfactory and a regular departmental inquiry was ordered vide order
dated 09.05.2016 and the Inquiry Officer submitted a detailed Inquiry
Report dated 21.08.2017 holding that the charges were proved. Thereafter,
a show cause notice was issued to the petitioner to which a reply was filed
and the District & Sessions Judge, Mewat vide order dated 27.07.2018
(Annexure P-3) after giving personal hearing to the petitioner, observed that
there was no dispute that the petitioner had remained absent for a
considerable period of time without prior permission or getting the leave
sanctioned and that the plea sought to be raised of his illness is not
believable and was in contradiction to the earlier stand taken by the
petitioner in his reply in which he had stated that his wife was ill. It was
further observed that no medical proof supporting the said plea was
produced and that the petitioner was habitually absent from duty without
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intimation or prior permission and accordingly a penalty of withholding of
six annual increments with cumulative effect was imposed upon the
petitioner.
7. The fifth inquiry and punishment which is sought to be
challenged before this Court was for remaining absent from duty on
31.07.2017, 01.08.2017 and on 2.8.2017 without any prior permission or
intimation. With respect to the same, petitioner was charge sheeted and a
reply to the same was filed by the petitioner and a personal hearing was also
given and it was found that there was no substance in the pleas of the
petitioner as neither any medical proof nor any intimation qua his absence
from duty was produced by the petitioner and thus penalty of withholding of
one increment without cumulative effect was imposed after following the
due procedure vide order dated 27.07.2018 (Annexure P-4). The orders
Annexures P-3 and P-4 were also not challenged for a period of more than
four years without any explanation. The respective inquiry reports have
neither been placed on record nor have been sought to be challenged in the
present writ petition. A mercy appeal without reference to any provision of
law is stated to have been filed by the petitioner before respondent no.1.
8. On a pointed query raised, counsel for the petitioner was not
able to point out the exact date on which the said mercy appeal was filed but
the counsel appearing for the respondents has submitted that the said mercy
appeal was filed on 7.3.2022 and the same is not referable to any provision
of law and has been rejected vide letter dated 21.10.2022.
9. Learned counsel appearing for the respondents has informed
the Court that the petitioner had not preferred any service appeal against any
of the five orders which were sought to be challenged before this Court
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under Rule 14 of the 1997 Rules and has further submitted there there is no
provision regarding filing of a mercy appeal against the five orders passed
by the District & Sessions Judge, more so in a single petition/application as
has been done by the petitioner. It has been further submitted that the
service appeal is also barred by limitation as the appeal under Rule 14(c)(i)
of the 1997 Rules is to be presented to the District & Sessions Judge within
a period of 45 days of the date of the said order, which has not been done.
The mercy appeal filed challenging all the five orders by filing a single
petition has not been entertained as there is no rule providing for the same.
10. Learned counsel for the petitioner has not been able to refer to
any rule to show that the mercy appeal filed after several years and
challenging all the five orders in one mercy appeal is maintainable.
11. The only ground sought to be raised before this Court is that
the petitioner was an illiterate person and thus he was not aware of the facts
that service appeal was to be filed and the same was to be filed within a
period of 45 days and was also not aware that on account of his absence the
punishments imposed could be passed against him. It is further submitted
that the petitioner and his wife were not well and it is for the said reasons
that he remained absent from duty and for the same a lenient view may be
taken.
12. Learned counsel for the respondents, on the other hand, has
submitted that the petitioner is a govt. employee and has a service of more
than 17 years. It is further submitted that in the proceedings the petitioner
was issued various show cause notices to which he filed replies and thus the
pleas raised by counsel for petitioner are an afterthought.
13. This Court has heard learned counsel for the parties and has
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perused the paper book and finds that the present writ petition is meritless
and deserves to be dismissed for the following reasons:-
(i) Four different proceedings culminating into the passing of four
different orders are sought to be challenged in one writ petition. Neither the
Inquiry Report in the said four proceedings nor the show cause notices nor
replies to the said show cause notices nor the documents/evidence on the
basis of which the authorities have passed the impugned orders, have been
placed on record nor the same are under challenge. No argument has been
raised to show that the proceedings in any of the four cases were in
violation of any statutory provision of law or the findings arrived at were
perverse or in violation of law.
(ii) Three of the four proceedings culminating into passing of the
orders dated 27.03.2014 (Annexure P-1/A), 27.07.2018 (Annexure P-3) and
27.07.2018 (Annexure P-4) were with respect to the absence of the
petitioner from duty for various periods of time without prior intimation and
without getting the leave sanctioned. The plea taken in the said proceedings
by the petitioner was that the absence was on account of his illness or the
illness of his wife. After due inquiry in each of the said proceedings the
Inquiry Officer had come to the conclusion that there was no medical
evidence or defence witness produced by the petitioner in support of the
same and had thus found the said plea to be false and the inquiry report had
been duly accepted by the punishing authority. Even with the present writ
petition no such medical evidence/document has been annexed. Thus, no
fault can be found in the said proceedings or in the impugned orders.
(iii) Admittedly, no service appeal in accordance with law has been
filed against any of the said orders and only a mercy appeal has been filed
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on 07.03.2022 against all the orders, which is not referable to any
rule/regulation.
(iv) The present writ petition also deserves to be dismissed on the
ground of unexplained delay and laches inasmuch as the impugned orders
have been passed in the years 2014, 2016 and 2018 and the same are being
sought to be challenged now after much delay. The Hon'ble Supreme Court
has repeatedly held that a petition filed after an unexplained lapse of time
should not be entertained and mere filing of repeated representations or
even directions to decide said representations would not give rise to a fresh
cause of action. Reference in this respect may be made to the judgment
passed by Hon'ble Supreme Court of India in "Chennai Metropolitan
Water Supply and Sewerage Board and others v. T.T. Murali Babu"
reported as 2014(4) SCC 108 in which one of the grounds for setting aside
the judgment of the High Court was the fact that the petitioner therein had
approached the High Court after a delay of 4 years and it was observed by
the Hon'ble Supreme Court that it was the duty of the Court to scrutinize
whether such an enormous delay is to be ignored without any justification
and the Hon'ble Supreme Court came to the conclusion that interference by
the High Court after a lapse of 4 years was unjustified and that the writ
petition should not have been entertained. The Hon'ble Supreme Court of
India in the case "State of Uttaranchal and another v. Sri Shiv Charan
Singh Bhandari and others" reported as 2013(12) SCC 179 had observed
that repeated representations or reply to such representations cannot furnish
a fresh cause of action or revive a stale or dead claim and that the issue of
limitation or delay should be considered with reference to the original cause
of action and not with reference to the date on which an order was passed in
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compliance of the Court's directions and neither a court's direction to
consider a representation issued without examining the merits, nor a
decision given in compliance with such direction, will extend the limitation,
or erase the delay and laches. In "Chairman, U.P. Jal Nigam and Anr. v.
Jaswant Singh & Anr." reported as 2006(11) SCC 464, the Hon'ble
Supreme Court had rejected the claim of the persons who were guilty of
delay and had approached the Courts after some years and had sought to
raise the plea that similarly situated persons, who had filed the writ petitions
earlier, had been granted the relief. The judgment of the Hon'ble Supreme
Court in "State of Uttaranchal's case (supra)" has further been referred to
in the latest judgment of the Hon'ble Supreme Court passed in State of
West Bengal Vs. Debabrata Tiwari and Others reported as 2023-SCC-
Online-SC-219. The relevant portion of the same is reproduced
hereinbelow:-
"37. Whether the above doctrine of laches which
dis-entitled grant of relief to a party by Equity Court of
England, could disentitle the grant of relief to a person by the
High Court in the exercise of its power under Article 226 of
our Constitution came up for consideration before a
Constitution Bench of this Court in Moon Mills Ltd. v. M. R.
Meher, President, Industrial Court, Bombay, AIR 1967 SC
1450. In the said case, it was regarded as a principle that dis-
entitled a party for grant of relief from a High Court in the
exercise of its discretionary power under A Article 226 Â of the
Constitution. 38. In State of M.P. v. Nandlal Jaiswal, (1986)
4 SCC 566 this Court restated the principle articulated in
earlier pronouncements in the following words:
9. ... the High Court in exercise of its discretion
does not ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is inordinate delay on
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the part of the Petitioner and such delay is not satisfactorily
explained, the High Court may decline to intervene and grant
relief in exercise of its writ jurisdiction. It was stated that this
Rule is premised on a number of factors. The High Court does
not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public
inconvenience and bring, in its train new injustices, and if writ
jurisdiction is exercised after unreasonable delay. it may have
the effect of inflicting not only hardship and inconvenience but
also injustice on third parties. It was pointed out that when
writ jurisdiction is invoked, unexplained delay coupled with the
creation of third party rights in the meantime is an important
factor which also weighs with the High Court in deciding
whether or not to exercise such jurisdiction."
xxx xxx xxx
40. Further, simply because the Respondents-Writ
Petitioners submitted their applications to the relevant
authority in the year 2005- 2006, it cannot be said that they
diligently perused the matter and had not slept over their
rights. In this regard, it may be apposite to refer to the decision
of this Court in State of Uttaranchal v. Shiv Charan Singh
Bhandari, (2013) 12 SCC 179, wherein the following
observations were made:
19. From the aforesaid authorities it is clear as
crystal that even if the court or tribunal directs for
consideration of representations relating to a stale claim or
dead grievance it does not give rise to a fresh cause of action.
The dead cause of action cannot rise like a phoenix. Similarly,
a mere submission of representation to the competent authority
does not arrest time."
The plea raised by the counsel for the petitioner with respect to
not approaching the Court or filing a statutory appeal within time, is
completely unfounded and deserves to be rejected.
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14. Keeping in view the above said facts and circumstances, the
present petition is dismissed.
(VIKAS BAHL)
JUDGE
23.01.2024
lucky
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
Neutral Citation No:=2024:PHHC:008990
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