WP(C) 1154/2009 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA THE HON’BLE MR JUSTICE P.K. SAIKIA 1. The petitioner who was removed from service by order dated 24.09 .1999 pursuant to a departmental proceeding on various charges, has put to chall enge the said order by filing the instant writ petition after nearly 10 years of the said order. On being asked about the cause of delay of 10 years, learned c ounsel for the petitioner seeks to explain the same in reference to the averment s made in paragraph-12 of the writ petition. In the said paragraph it has been s tated that the petitioner did not challenge the impugned order of removal from service in view of the pedency of a criminal case in which judgment of acquitta l was passed on 28.03.2008. As to whether the very pendency of the criminal pro ceeding can debar initiation and finalization of the departmental proceeding and on conclusion of the same whether a penalty can be imposed and whether the deli nquent can wait till the outcome of the ciminial proceeding, will be discussed a little later. 2. The petitioner has a chequered history of his service career. He had jo ined as Lower Division Assistant -cum- Typist in the establishment of the respon dent No. 2, i.e. the District and Sessions Judge, Hailakandi on 22.11.1992. He w as discharged from service by order dated 05.01.1994 on the basis of certain all egations against him. He filed a writ petition being CR No. 352/1994 challenging the order of termination. On the basis of the judgment passed in the writ petit ion, he was reinstated in service on 01.11.1994. 3. In the year 1995 and to be precise on 18.01.1995, a fresh proceeding was initiated against the petitioner on the basis of certain allegations. Thereafte r he was dismissed from service on 22.02.1995. The challenge put to the said ord er of dismissal from service vide writ petition being CR No. 4231/1995 was unsuc cessful inasmuch as the said writ petition was dismissed by order dated 24.04.19 97. 4. During the pendency of the writ petition, the petitioner was temporarily appointed in the establishment as LDA-cum-Typist clearly stipulating that same would be subject to the outcome of the judgment in the pending writ petition. Th us, naturally with the dismissal of the writ petition, the service of the petiti oner was to be terminated. However, in the meantime fresh proceeding was initiat ed against him. He was placed under suspension by order dated 16.03.1999. Therea fter, he was served with the charge sheet dated 16.03.1999 levelling the followi ng charges: Charges: 1) That after rejection of your petition dated 25.02.99 praying for earned leave for 30 days with effect from 01.03.99 to 30.03.99 you were asked vide this office order No. 19 dated 01.03.99 for want of requisite particulars, you were asked to resume duties immediately further directing to furnish reasonable cause for unauthorized absent in the office from 27.02.99 and till resumption of duti es and sent on the same date through Dak Book but you were not found present in your house and the inmates of your house refused to receive it on the plea that you had gone to Guwahati without seeking prior permission to leave the headquart ers from this end. 2. That the said rejection order was sent vide this office order No. 20 dat ed 04.03.99 by registered post but the same was neither received by any inmate o f your house nor it could be delivered endorsing in the cover of the letter that you were absent and a notice in this regard was also endorsed not claimed . 3. That for giving coverage of your flouting of the aforesaid orders you, b y adopting falsehood, sent an ante-dated letter giving date as on 01.03.99 by fo rwarding the same by another letter dated 05.03.99 seeking medical leave from 01 .03.99 to 31.03.99 falsely stating that you sent it by your younger brother to t he office when the Sheristadar refused to receive it which was not a fact and th e same also contradicts your previous petition for earned leave. A false medical certificate was also enclosed with that medical leave petition and the same was rejected for adopting the above falsehood. 4. That there was a news caption published in the ’Dainik Sonar Cachar’ dat ed 12th March, 99 that you were involved in some criminal offences U/Ss 419/420/ 468 IPC and huge incriminating materials were recovered from your house by raid when you were found absconded and the matter was on investigation. Another claim case in the District Consumers Form, Hailakindi was instituted by one Kripapani Bhattacharjee of Lakhisohor, Hailakandi, stating that you realized a substantia l amount from that person for wrongful gain as a Govt. servant and the petition further bears some money receipts showing to realize a substantial amount by iss uing receipts of your own hand. Such profiteering business violates the service rules and the official norms since the same was done without the knowledge of th e undersigned which you cannot do as a Govt. servant. 5. That it appears from official records that previously your service was t erminated by learned Predecessor Mr. S.K. Kar for your gross misconduct against which you directly preferred a writ petition before the Hon’ble High Court and d uring pendency of the same learned Predecessor Mr. G.M. Paul very graciously app ointed you in a vacant post of this establishment subject to termination of your service without assigning any reason or as per decision of the Hon’ble High Cou rt in your writ petition, and again you are found flouting the orders of the und er signed as asserted above which is clear insubordination and gross misconduct on your part. 5. In response to the charges leveled against him, the petitioner submitted his reply dated 15.05.99. Being not satisfied with the reply furnished by the p etitioner, the disciplinary authority conducted a departmental enquiry in which the enquiry officer found all the charges against the petitioner to have been es tablished. Pursuant thereto, the petitioner was imposed with the penalty of remo val from service by the impugned order dated 24.09.99 (Annexure-8) followed by h is release order dated 24.09.99 (Anenxure-9). 6. After the aforesaid impugned order, the petitioner slept over the matter and did not make any challenge to the same. Long 10 years thereafter he filed the instant writ petition challenging the said order. The only explanation furni shed, as noted above, is in paragraph-12 of the writ petition in which a statem ent has been made that the petitioner did not challenge the order of removal fro m service due to pendency of the criminal case being GR Case No. 130/99. 7. As to what were the charges against the petitioner has been noted above. It ranges from unauthorized absence from duty, insubordination and involvement in criminal case to service being dispensable in terms of the offer of appointme nt made, etc. The criminal case was not relating to the charges other than the c harge No. 4 in which his involvement in criminal case being offence under Sectio n 419/420/468 IPC was indicted. 8. In the above position, the plea of the petitioner that he did not file the writ petition because of the pendency of the criminal case, does not explain the delay and latches in challenging the order of removal impugned in the wri t petition. Needless to say that mere pendency of a criminal case does not debar the disciplinary authority to proceed against a delinquent with a departmental proceeding. Needless also to say that there is no absolute rule that the depart mental proceeding must be stayed during the pendency of the criminal case. If an y authority is required in this regard, we may gainfully refer to the decision o f the Apex Court as reported in (1996) 6 SCC 417 (State of Rajasthan vs. B.K. Me ena and ors.) ; (2004) 6 SCC 482(Allahabad District Co-operative Bank Ltd. Vs. Vidhya Varidh Mishra); (2001) 6 SCC 584(K.C. Sareen Vs. CBI, Chandigarh) and (19 96) 6 SCC 455 (State of Karnataka and anr. Vs. T. Venkataramanappa) 9. Above apart and as noted above, the charges in the departmental proceedi ng and the criminal proceeding were not based on the same set of facts and they were completely different. There is no explanation whatsoever in the writ petiti on about the cause of delay in filing the writ petition. As has been held by th e Apex Court in Rantan Chandra Sammanta and ors. Vs. Union of India and ors. rep orted in AIR 1993 SC 2276, a writ is issued in favour of a person who has some r ight and not for sake of roving enquiry leaving scope for maneuvering. Delay its elf deprives a person of his remedy available in law. 10. In the said case the petitioner a retrenched employee claimed for same b enefit like that of the other retrenched railway employees. However, having rega rd to the fact that there was delay of 15 years, the Apex Court declined to gran t the relief to the petitioner. Irrespective of delay in filing the writ petitio n, we have considered the case of the petitioner on merit as well. There is no a llegation of any procedural irregularity in conducting the enquiry proceeding. I n the departmental proceeding the petitioner duly participated and on the basis of the findings recorded by the enquiry officer, the disciplinary authority impo sed the penalty of removal from service. 11. Even otherwise also, the service of the petitioner was to be dispensed w ith in terms of his condition of appointment which was subject to the outcome of the writ petition being CR No. 4231/95 in which his earlier order of dismissal from service was under challenge. It was during the pendency of the writ petitio n, he was reappointed temporarily with the clear stipulation that his such appoi ntment would be subject to the outcome of the writ petition. The writ petition having been dismissed, the service of the petitioner was, even otherwise also l iable to be dispensed with. 12. Mr. HRA Choudhury, learned Sr. counsel appearing for the petitioner subm its that since the petitioner was not furnished with the copy of the enquiry rep ort, he could not make representation against the same and the same deprived him of his right of reasonable opportunity of being heard. 13. We have considered this submission in the light of the prejudice, if any , that has been shown by the petitioner. Except the statement that a copy of the enquiry report was not furnished to the petitioner, there is no whisper as to h ow the same caused any prejudice to him. In absence of any prejudice shown, mere non furnishing of the copy of the enquiry report, may not lead to irresistible inference that the petitioner’s defence was grossly prejudiced. 14. Above aspect of the matter will also have be considered in the touchtone of the attending facts and circumstances recorded above. From the very inceptio n of the service of the petitioner, it has been the story of the continuous liti gation. Challenging the order of dismissal from service, the petitioner had ear lier approached this Court by filing a writ petition being CR No. 4231/95. The s aid writ petition was dismissed upholding the order of dismissal from service. T hat being the position, even otherwise also his service was liable to be dispens ed with. However, the incumbent District and Session Judge favoured him with the appointment with a clear stipulation that his such appointment would be subject to the outcome of the writ petition. The petitioner could not avail the opportu nity given to him and again indulged in misconduct attributed to him through the aforementioned charges. The charges having been established in the enquiry, the disciplinary authority imposed the penalty of removal from service by the impug ned order dated 24.09.1999. Long 10 years thereafter, the petitioner invoked the writ jurisdiction of this court. In the meantime, 3rd party right might have a lso accrued. 15. For all the aforesaid reasons, we do not find any merit in the writ peti tion and accordingly, it is dismissed.