IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.298 of 2010 BIRENDRA KUMAR, AGED ABOUT --- YEARS, S/O LATE SURAJMUKH, RESIDENT AT PURANI BAZAR, MAHARAJGANJ, P.S. MAHARAJGANJ, DISTT.- SIWAN … Petitioner-Appellant Versus 1. THE BIHAR STATE ELECTRICITY BOARD THROUGH ITS CHAIRMAN, BAILEY ROAD, PATNA, P.O. G.P.O. DISTRICT PATNA 2. THE CHAIRMAN, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA, P.O. G.P.O. DISTT.- PATNA 3. THE SECRETARY, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA, P.O. G.P.O., DISTT.- PATNA 4. THE JOINT SECRETARY, BIHAR STATE ELECTRICITY BOARD, BAILEY ROAD, PATNA P.O. G.P.O. DISTT.- PATNA 5. THE CHIEF MANAGER-CUM-CHIEF ENGINEER B.T.P.C. BEGUSARAI, P.O. BEGUSARAI, DISTT.- BEGUSARAI 6. THE PERSONAL MANAGER-CUM-CHIEF ENGINEER, TRANSMISSION CONSTRUCTION, PATNA P.O. G.P.O., DISTT.- PATNA 7. THE ELECTRICAL EXECUTIVE ENGINEER, TRANSMISSION CONSTRUCTION DIVISION, MUZAFFARPUR, P.O. & DISTT.- MUZAFFARPUR … Respondents-Respondents ----------- For the Appellant : Sri Bipin Bihari Singh, Advocate For the Respondent: Sri Vinay Keerti Singh, Advocate ------------- 2. 15.2.2010 I.A.No. 1454/2010 Having heard counsel for the parties as also upon taking the facts and circumstances mentioned in this application, the delay of 29 days in filing of this appeal is condoned. 2 I.A.No. 1454/2010 is, accordingly, allowed. L.P.A. No. 298 of 2010 In view of the fact that we have condoned the delay, we, with the consent of the parties, are also inclined to dispose of this appeal at the stage of admission itself. By the impugned order dated 9.11.2009 in C.W.J.C.No. 13297/2003 the learned Single Judge has dismissed the writ application of the appellant- writ petitioner on the ground that it was suffering from the vice of unexplained laches and delay of a period of more than nine years. Learned counsel for the appellant- writ petitioner, however, had tried to impress upon us that there was no delay on the part of the appellant- writ petitioner in moving this Court, inasmuch as the impugned order dated 3.1.1994 terminating his services was served on him only in the year 2003 and therefore, the writ application filed on 2.12.2003 could not have been thrown out on the ground of delay alone. Counsel for the Bihar State Electricity Board 3 (hereinafter referred to as ‘the Board’), however, has submitted that in the writ application a plea was taken by the appellant- writ petitioner in paragraph no.13 that the order of termination of his service dated 3.1.1994 was never communicated and/or served on him and the plea that the petitioner was not aware of the steps taken with regard to termination of his service is also incorrect, inasmuch as by the two newspaper publications the petitioner and similarly situated five other Junior Engineers absent from the duty were directed to submit their joining within 15 days, failing which it was to be deemed that they had voluntarily abandoned the service of the Board leaving no option for the Board but to terminate their service. Learned Counsel in this context had stressed on the aspect that such specific stand of the Board set out in its counter affidavits as with regard to the appellant- writ petitioner having notice of his termination of service in newspaper communiqué on account of his absence was also not controverted by him filing any reply to the supplementary counter affidavit and as such, the notices published in the newspaper by 4 itself would be sufficient to prove as with regard to knowledge of termination of service of the petitioner. This Court having given anxious consideration to the aforementioned submissions as also materials on record would find that the appellant- writ petitioner had remained absent from service without any sanction leave to his credit with effect from 26.11.1991 and when he had not reported on duty in the next 12 to 13 years, a notice was published in the newspaper giving him 15 days time to rejoin the services of the Board and when he did not do so his services were terminated on 3.1.1994 with effect from the date he had been continuously absenting himself in the service of the Board i.e. 26.11.1981. Thus, the plea of the petitioner that he was not aware of his order of termination dated 3.1.1994 till 22.10.2003 cannot be believed. In the opinion of this Court learned counsel for the Board is also correct in relying on an unreported judgment of this Court dated 11.3.2002 in C.W.J.C.No. 8755/2000 (S.H.Faruque vs. Bihar State Electricity Board & ors.), wherein an order of termination dated 5 29.11.1982 assailed in the year 2000 by filing C.W.J.C.No. 8755/2000 has been held to be not maintainable on the ground of un-explain delay and laches. The said order of the learned Single Judge dated 11.3.2002 in C.W.J.C.No. 8755/2000 has also been affirmed by a judgment dated 30.1.2003 in L.P.A.No. 646/2002 (Sabir Hussain Faruque vs. Bihar State Electricity Board & ors.). In fact there would be also an additional reason for affirming the order of the learned Single Judge, inasmuch as on the plea of the appellant-writ petitioner of having no knowledge of his termination of his service for a period over nine years in view of its being not explained in the writ application, an order was passed on 3.2.2004 in the connected writ application itself wherein he was directed to file a detailed affidavit on the specific points as noted in the impugned order but the appellant- writ petitioner had not filed any affidavit and as such, the delay in filing of the writ application despite an opportunity given to the appellant- writ petitioner had remained unexplained. 6 The only explanation given before us by the learned counsel for the appellant- writ petitioner that the representations were being filed by the appellant- writ petitioner for his being taken back in service in the aforementioned period of nine years also does not inspire confidence and in fact would by itself would be a pointer to the fact that the appellant- writ petitioner was aware of his order of termination. More over it is well settled that by the mere plea of submitting of the representation/ memorials is not sufficient to condone the gross delay in filing of the writ application. Reference in this connection may be made to the judgment of the Apex Court in the case of Jagdish Narain Maltiar vs. the State of Bihar & ors., reported in AIR 1973 S.C. 1343. That being so, this Court must hold that when the appellant- writ petitioner had himself abandoned the service of the Board and did not join the post held by him by remaining unauthorizedly absent for a period of more than 12 years, his termination of service on 3.1.1994 could not have been assailed by him by filing a writ application on 2.12.2003. Thus, the conduct of the 7 appellant- writ petitioner coupled with the delay of more than nine years in filing of the writ application by itself was sufficient for dismissal of the writ application. We, accordingly, find no error in the impugned order of the learned Single Judge and accordingly concur with the findings and reasonings given therein. That being so, there is no merit in this appeal which must be and is hereby dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/