^ f ^ c^C^i 5 3 o/c ^ 'it BeFORfi THE STME AOME STaATIVE r&IBUNAi._AT JABAU> O.A.No. APPUCANT i ae3Po»£OTSs Dasfaraatb Sa.ngh soaof Bangiali.t Slngfe Miwasi GQE^ aged aisoat 47 years B/o vxllage Pathakpur Pest Kalyan Pur.Bistriet Sarguja N.P. -Versus— 1» Stats of Hadhya pradesh Thrs The Seeretary, OepartfBent of Forest, Vallabh Bfaawaa, Bhopajl M.P. 2. Sub-Sivisional OffieaaE,^Forest) ] Seytb J9ro<iacti®a,SazgHjaVan Maadaa Anbikapyar, Sargaja M.P, •^» 3. Oivi.signal Forest Offieer, »,>a?th Sarguja BivisioB,Airiaikapa3? MstrietSarguja M.P. 4. Gonservator af Forest, ProGluetion Sarguja Vaa Aian^al, Ambikapyr, Bistrlet Sarguja a.P. ,,fe M f'- J.'?^' APPUGAIION U/S l? OF THE ADMIgXS-raATIVE TRIRiNALS ACT.I isas. OE.I&LiS QF APPLICATEiN: 1. Partieylars of the appltcant: Na.l asaentioned ai»ove» Parfciculars of th®respoRdea&s. No.l to 4 asaentiaRed aaove. ^itwhfB^wi.^^ -~s ^ian^a HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (Sl N0.1530/2005 APPLICANT Dashnath Singh Versus RESPONDENTS State of Madhya Pradesh and others Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. FOR PRONOUNCMENT OF ORDER Sd/- »»udl"s> Stirivastava //'^ ii" S •'•s •Itfe '^lv,^^ HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.1530/2005 APPLICANT Dashnath Singh Versus State of Madhya Pradesh and others RESPONDENTS Sjnale^enchLj-lon'ble Shri Manindra WIohan Shrivastava, J. Present: - Shri Ashok Kumar Shukla, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondents. ORDER (Passed on this Ib"' dav of February, 2010) Instant petition has been filed by the petitioner aggrieved by inaction on the part of respondents in not considering representations for his reinstatement. (2) The facts necessary for adjudication of controversy involved in the petition are that the petitioner was initially appointed as Tendu Patta Guard in the year 1968 but on allegations that the petitioner was involved in committing theft of timber, an enquiry was made and petitioner's services were terminated vide order dated 10-08-1980 (Annexure A-1). At the same time, as there was allegation of theft, matter was also reported to the police and offence under Section 379 of I.P.C. was also registered against the petitioner. He was subjected to trial in the Court of Judicial Magistrate First Class, Ambikapur in Criminal Case No.512/1992. After completion oftrial, vide judgment dated 11-12- 1993 (Annexure A-2), the petitioner was acquitted of criminal charges of theft. The petitioner submits that after his acquittal, he made several representations before the respondents particularly the respondent No.3 that in vjew of his acquittal of the criminal charges, he may be reinstated in service. Those representations have been placed on record as Annexure A-3 and A-4. ^- •^" (3) In the return filed by the respondents, it has been stated that the petitioner was appointed as Coup Guard and his appointment was temporary in nature which is reflected from appointment order dated 29-04-1972 (Annexure R-1). It was found that on 08-05-1 980 when the petitioner was working as Coup Guard in Ambikapur Timber Depot, he was allotted to receive the timber transported by transporter from departmental coups. On 08-05-1980, he gave receipt to one Paramjit Singh despite the fact that timber was not received in the depot. Vide his application dated 13-05-1980, the petitioner also accepted that receipts were issued without receiving timber. On account of such finding of fraudulent act of issuance of receipt to Paramjit Singh, a show cause notice was issued to the petitioner on 16-06-1980 granting him 15 days time to submit reply and explanation. As the petitioner did not file any reply to the show cause notice though received on 26-06-1980 bythe petitioner, taking into consideration that in his application dated 13-05-1980, he admitted that he had issued receipts without issuing timber in the depot, his services were terminated vide order dated 16-06- 80 by the competent authority being Divisional Forest Officer (Production), Ambikapur. It is stated that the services of the petitioner are temporary in nature. He admitted that he had issued receipt without issuing timber in the depot, and therefore, in the circumstances, the petitioner has been rightly terminated from service. It has also been stated that the criminal case was decided on 11-12- 1993 in which it has been held that dispute is of nature which would be subject matter of departmental action and therefore, the petitioner is not entitled to reinstatement on the ground of acquittal. It has also been stated that finding the appellant guilty, he was terminated from service and against the said order of termination, the petitioner has not filed any appeal or representation. I1 ir fa"'"^\ "tliiBEiii. l"t:!!!S^|| ^ (4) Learned counsel for the petitioner submitted that the impugned order was passed without affording him an opportunity of hearing. Learned counsel submits that as the petitioner has worked for long time and he had became permanent employee, his services could not be dispensed with on the allegation of misconduct without holding a regular departmental enquiry in accordance with the disciplinary rules in force. He refers to the order of termination dated 10-08- 1980 (Annexure A-1) to submit that from the perusal of the order, it is borne out that the impugned order of termination was not simplicitor but was passed on allegations of misconduct, and therefore, respondents ought to have held a departmental enquiry on the allegations of misconduct as the impugned order of termination was not simplicitor but it was founded on the allegations of misconduct and cast stigma. Learned counsel further submits that though he was appointed on 24-09-1972 and his services were temporary in nature but he has continuously served the department up to his date of termination and looking to the long tenure of his service, he may be treated as permanent employee and he may not fall within the category of adhoc or contingent employee.' It is further submitted that the show cause notice was only served upon him and thereafter termination order was issued without affording him opportunity of hearing. (5) It is submitted that the petition was filed after 17 years of termination and though it suffered from delay and laches but the reason of such delay has been explained plausibly inasmuch as a fresh cause of action arose upon acquitta] in crimmal case. Learned counsel further submits that if the orderof termination is bad in law, it could not be allowed to stand and the question of delay and laches goes and reinstatement/quashment of termination order cannot be denied only on the ground of delay. (6) Learned State counsel submits that the petitioner was only a temporary employee and upon departmental enquiry, it was found that he had issued forged >» '-i, j •:»»ltI ./:.'' ./',••'' T^ receipts and this fact was admitted by the petitioner in his letter dated 13-05- 1980, therefore, there is no illegality in the order of termination from service. He further submits that the petitioner has not even challenged the order of termination dated 10-08-1980 and has only prayed that his reinstatement in service only on the ground of acquittal from criminal charges. In his submission, termination of service of the petitioner was not founded on conviction in criminal case but in the departmental enquiry, the petitioner was found to have issued forged receipts. He further submits that from the conduct of the petitioner, it is clear that he acquiesced in the action of the respondents in terminating his service on 10-08-1980 as he has neither preferred any representation nor any departmental appeal against the said order. It is also submitted that he did not take recourse to remedy available to him under the law by filing a petition before the competent forum, and therefore, the order attained finality. He further submits that in essence, the petitioner claims reinstatement on the ground of acquittal from criminal charges. There is no challenge to the initial order of termination as such and that is the reason why no prayer for quashing the order of termination is prayed in the petition. (7) I have considered rival submissions made by the parties and perused the records. (8) What is reflected from the record is that the petitioner while continuing as Coup Guard, was charged with certain allegations and upon an enquiry, it was found that he had issued forged receipts. As a result, the respondents came to a conclusion that as the petitioner was considered to be a temporary employee, his services were terminated with effect from 10-08-1980. This order was never challenged by the petitioner in any forum. There is no material on record to show that against the order of termination,the petitioner has filed any appeal or representation. There are no pleadings of the petitioner to the effect that after .iEteSJfc^—-,.. ''•'•i i. passing of the termination order, the petitioner raised any dispute against the said termination order. (9) In the criminal case filed against the petitioner on the allegation of theft of timber, the learned trial Court vide its judgment dated 11-12-1993 acquitted the petitioner by giving him benefit of doubt. Eversince the date of his termination or since the date of his acquittal from criminal charges, the petitioner has neither preferred any representation nor preferred any appeal nor filed any petition before any Court of law challenging the order of termination. Present is not a case where service was terminated on account of conviction. As a matter of fact, services of the petitioner were terminated long back i.e. in the year 1980 whereas the order of acquittal came to be passed in the year 1993. It was only after his acquittal, the petitioner started making representation for his reinstatement on the ground that once he has been acquitted from criminal charges, he is entitled to be reinstated. The first representation was made by the petitioner on 06-01-1994 (Annexure A-3) to the Divisional Forest Officer followed by another representation dated 07-01-1994 to the Conservator of Forest. (10) The petitioner filed the instant petition on 17-03-1997praying that respondents may be directed to reinstate the petitioner in service as also to make payment of arrears of salary from the year 1980 till date and other consequential benefits with interest. No relief has been prayed for quashing the order of termination. There are no pleadings to show that the petitioner preferred any appea! or representation challenging the order of termination and relief claimed in substance are to the effect that since he has been acquitted from the criminal charges, he is entitled to be reinstated in service. Though, during the course of arguments, an attempt has been made by learned counsel for the petitioner to assail the legality and validity of the termination order passed way back in the \; year1980, it is not borne out frorn the petition. Pleadings made in the petition to 9 the effect that the order of termination was passed without proper enquiry and opportunity of hearing without any specific prayer for quashing the order of termination but only prayer for reinstatement on the pleading that now he has been acquitted from criminal charges only show that without there being any challenge to the original order of termination passed on 10-08-1980, reinstatement has been claimed on account of acquittal from criminal charges vide judgment dated 11-12-1993. (11) It is worthwhile to note that the instant .petition was filed before the State Administrative Tribunal and it was stated that the petition is well within limitation. Pteadings of the petitioner taken together considered in totality would show that as the petitioner's claim for reinstatement on account of acquittal from criminal charges was not paid any heed to, petitioner approached the Tribunal. (12) Learned counsel for the petitioner submitted that the order is bad in law, as he has been dismissed from service without proper opportunity of hearing. Learned counsel further submits that the petition could not be dismissed on the ground that it suffers from delay and laches. 1 am unable to accept the submission. It is apparent that when the order of termination was passed, the petitioner did not challenge it and acquiesced in the same. He started making representation to the concerned authorities for his reinstatement on the ground of acquittal. From the pleadings, it cannot be said that the petitioner challenged the order of termination passed on 10-08-1980 on whatever grounds which were availabte to him under the law. (13) Learned counsel for the petitioner has relied upon decision in the case of Anoop Jaiswal vs. Government of India and another, AIR 1984 SC 636, Chandreshwar Narain Dubey and others vs. Union oflndia and others, 1998 SC-SLR-393, A.P. State Federafion of Co-op. Spinning Mills Ltd. And !:], •••••;)• & l%Jl;^! another vs. P. V. Swaminathan, 2001 SC-SLR-784, Arif Hussain Siddiqui vs. State of M.P. & others, 2002 (1) C.G.L.J. 218, Satwati Deswal vs. State of Haryana & Others, 2009 AIR SCW 6874, Hari Ram Maurya vs. Union oflndia and others, 2006 SCC (L&S) 1677 to buttress his submission that as the order of termination was founded on misconduct it cast stigma on him, and therefore, a detailed departmental enquiry ought to have been held and he should have been given opportunity of hearing. It is well settled that where the order of termination is founded on misconduct and cast stigma, opportunity of hearing is required to be afforded and departmental enquiry is required to be held. However, in the present case, the petitioner did not challenge the order of termination passed on 10-08-1980. It is not a case that eversince the order of termination was passed, the petitioner has been agitating his grievance assailing the legality and validity of the said order of termination in force and in the meantime, acquittal was granted. Present is a case where petitioner took no steps to challenge the order of termination. Even after his acquittal vide judgment dated 11-12-1993, the petitioner claimed reinstatement only on the submission that now he has been acquitted from criminal charges, order oftermination is liable to be recalled. (14) Assuming for the sake of argument that the petitioner challenged the legality and validity of the order of termination passed on 10-08-1980 by filing the instant petition, there are no pleading in the petition to offer any plausible explanation as to why petitioner did not challenge the order of termination on whatsoever grounds which were available to him under the law. If the petitioner was aggrieved by theorder of termination on the ground that the same is passed on allegations of misconduct and cast stigma, it was always open for him to take recourse to appropriate remedy available to him under the law. Irrespective of pendency of criminal case, it was always open for the petitioner to challenge the order of termination on grounds available to him under the law as termination •"1~-~— 'l s.a^ '^ •[;.!;) 11 order was not based on conviction but on certain allegations that the petitioner had issued forged receipts. Reliance placed on the decision of the Supreme Court in the case of Sub-Divisional Officer, Telegraph, Bijnor vs. Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court, Kanpur & Another, 2006 AIR SCW 900, is misplaced, inasmuch as in the said case, award of reinstatement with full backwages passed in the year 1992, was initially challenged before the Central Administrative Tribunal and the case remained pending there until it was dismissed as not maintainable in the year 1997. When the writ petition was filed thereafter within two months, the same was dismissed as highly belated on the ground that the award was passed on 1992. In the peculiar circumstances of the said case finding that as the award was challenged before the Centra] Administrative Tribunal and vide order dated 17-12-1997, the case was dismissed as not maintainable and thereafter writ petition was filed within two months, the Supreme Court came to the conclusion that the dismissal of the petition on the ground of delay was not proper. Such is not a situation here. (15) In the case of Uttaranchal Forest Development Corpn. And another vs. Jabar Singh and others, (2007) 2 SCC 112, it was observed as under: 43. The termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches. Further, in fhe case of ^ew Delhi Municipal Council v. Pan Singh and others,(2007) 9 SCC 278, the Supreme Court reiterating the principles relating to interference in cases where petitioner approached the Court with unexplained delay held as below: ^6 16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not daim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable Jurisdiction. (See Govt. of WB. v. Tarun K. Roy2, U.P. Jal Nigam v. Jaswant Singh3 and Karnataka Power Corpn. Ltd. v. K. Thangappani.) In the case of P. S. Sadasivaswamy vs. State of Tamil Nadu, (1975) 1 SCC 152, it has been held as under;- "It is not that there is any period of limitation for the Courts to exercise their powers underArticle 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the pas.sage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allowthings to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal." In the case of Bhoop Singh v. Union oflndia, (1992) 3 SCC 136, it was held as under: 8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to ~ the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filted promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result oftheir earlier petitions being allowed. •^s, 10 ?-? ..'"^ In view of above settled legal position with regard to aspect of delay and laches in filing petition, 1 am of the view that the petitioner at this stage could not be allowed to assail the legality and validity of termination effected vide order dated 10-08-1980. (16) It is next urged by tearned counsel for the petitioner that once he has been acquitted from criminal charges, respondents are bound to reinstate him in service. He has placed reliance on the decision ofthe Supreme Court in the case of Managing Director, State Bank of Hyderabad & Another vs. P. Kata Rao, 2008 AIR SCW 3143 in which following was observed as under:- 18. There cannot be any doubt whatsoever that the jurisdiction of superior Courts in interfering with a finding of fact arrived at by the enquiry officer is [imited. The High Court, it is trite, would also ordinarily not interfere with the quantum of punishment. There cannot, furthermore, be any doubt or dispute that on[y because the delinquent employee who was also facing a criminal charge stands acquitted, the same by itself would not debar the disciplinary authority in initiating a fresh department proceeding and/or where the departmental proceedings had already been initiated or to continue therewith. 20. The tegal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. N1. Paul Anthony vs. Bharat Gold Nlines Limited and another, 1999 (3) SCC 679, however remains unshaken although the applicability thereof had been found to be dependant on the fact situation obtaining in each case. (17) Taking into consideration the facts of that case in hand, it was observed as under: 21. The case at hand is an exceptional one. Respondent was a responsible officer. He was holding a position of trust and confidence. He was proceeded with both on the charges of criminal misconduct as also civil misconduct on the same set of facts, subject, ofcourse, to the exception that charges nos. 1 1 & 15 sfr/cto sensu were not the subject matter of criminal proceedings, as integrity and diligence, however, were not in question. Before us also it has not been contended that he had made any personal gain. -:i'^ 'v?^---^. ^f ^'-•'- 11 ^ 22. The High Court in its judgment categorically opined that he merely had committed some inadvertent mistakes. He did not have any intention to commit any misconduct. The purported misconduct on his part was neither willful nor their existed any fraudulent intention on his part to falsify the account. The High court opined that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubts for the offences punishable under the provisions under the Indian PenalCode. The judgment of the High Court states a definite view. It opined that the finding of the learned trial Judge holding him guilty under Section 477 A of the Indian Penal Code and the provisions of the Prevention of Corruption Act was perverse. The circumstances in favour of the accused, the hligh Court inferred, had wrongly been attributed against him by the trial Judge. (18) Further, after considering the developments of the case in hand and various orders passed, it was further observed as under: In that case, it was held: "13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be ground not to initiate a departmental proceeding against him orto drop the same in the event an order of acquittal is passed." This Court therein considered the nature of the confessions made by the delinquent officer and the implication thereof having regard to Sections 25 & 26 of the Evidence Act to hold that the Tribunal was not correct in holding that the confessional statement was not admissible in the departmental proceeding. In G. M. Tank vs. State of Gujarat and others, 2006 (5) SCC 446, noticing a large number of decisions operating in the field, itwas observed: "30. The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on