State Of Jammu And Kashmir vs R.K. Zalpuri And Ors

The first respondent was served with a Memorandum of Charges on 16th September, 1996, which was unequivocally refuted by him. The Disciplinary Authority considering the denial of charges, on 12th November, 1996, appointed an Inquiry Officer, who after conducting the enquiry, submitted a report to the Disciplinary Authority which contained a finding that the employee had misappropriated a sum of Rs.2,68,317.00. After the report was submitted, the Disciplinary Authority issued a show cause notice on 4th June, 1999, whereby it had proposed to terminate the services of the employee.

2. The first respondent submitted the reply and the Disciplinary Authority considering the explanation passed an order of dismissal on 6th September, 1999 and he stood dismissed from that day. The order passed by the State Government dismissing the employee read as follows:-

Whereas Shri R.K. Zalpuri has furnished his reply to the notice served upon him, which has been considered by the Government and no merit was found in he same;

3. After the said order was passed, the first respondent did not prefer any departmental appeal nor did he approach any superior authority for redressal of his grievance. However, on 18th February, 2006, he filed a writ petition (S.W.P. No.352 of 2006) before the High Court challenging his dismissal from service. Various assertions were made in the writ petition with regard to the defects in conducting of the inquiry including the one that there had been violation of Rule 34 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956, for he had not been afforded an opportunity of hearing in the manner provided in the said Rules. In the writ petition nothing was stated what he had done from 1999 to 2006.

4. The State Government filed a counter affidavit wherein it had raised a preliminary objection relating to delay and laches. The stand taken by the State Government in the counter affidavit as regards the delay and laches is as follows:-

10. The Division Bench considered the application for review and ultimately dismissed the same on the ground that there was no palpable error warranting review of the order. The principal order and the order passed in the review are the subject matters of assail in the present appeals.

12. On a perusal of the factual exposition, it is quite vivid that the first respondent was dismissed from service on 6th September, 1999, and he preferred the writ petition on 18th February, 2006, after a lapse of almost five and a half years. The plea relating to delay was specifically taken in the counter affidavit as a preliminary objection, but the learned Single Judge chose not to address the same. The appellate-Bench has noted the submission and modified the order and an application for review was filed with the stand that the plea pertaining to delay and laches had not been considered, but the review application, as we find from the record, was dismissed on the ground that the review could not be treated like an appeal in disguise.

Now, therefore, Shri R.K. Zalpur, Senior Assistant, in the office of the Resident Commissioner, J&K, New Delhi is hereby dismissed from Government service with immediate effect in terms of clause VIII of Rule 30 of J&K Civil Service (CCA) Rules, 1956.”

26. In the case at hand, the employee was dismissed from service in the year 1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court.

28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.

29. In view of our aforesaid analysis the appeals are allowed and the judgment and orders passed by the High Court are set aside. There shall be no order as to costs.