Ravinder Kumar Sharma v. State of J&K

Through: Mr. Amit Gupta, AAG Coram: HON’BLE MR. JUSTICE TASHI RABSTAN, JUDGE HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE JUDGMENT Tashi Rabstan-J

1. This Letters Patent Appeal is directed against the judgment dated

19.03.2019 delivered by the learned Single Judge in SWP No.2249/2012, whereby the learned Single Judge dismissed the writ petition being barred by delay and latches.

2. We have heard learned counsel appearing for the parties, considered their rival contentions and also perused the appeal file.

3. The learned Single Judge dismissed the writ petition solely on the ground that the writ petition came to be filed by the writ petitioner after a long delay of nearly 10 years. Learned Single Judge was of the view that the cause of action accrued to the writ petitioner in the year 2002 and he approached the Court after a huge delay of nearly 10 years. 2 LPA 139/2019

4. Notice in the writ petition came to be issued on 05.10.2012 and the writ petition came to be admitted on 20.09.2016, when objections filed by the respondents were treated as counter. Thereafter, rejoinder came to be filed by the petitioner on 18.07.2018 and the matter came to be reserved on 06.09.2018. However, the learned Single Judge dismissed the writ petition on account of delay and latches vide judgment dated 19.03.2019.

5. While dealing with a matter, the court has to keep in mind that on hearing the arguments presented by a party for the admission of the case, if the court is satisfied that the case is baseless and has no merits or the issues involved do not qualify to be admitted or kept pending for admission, the High Court may dismiss the case. Whereas, on the other hand, if the court after going through the arguments presented by the petitioner or applicant or appellant, comes to the conclusion that the case involves a valid legal issue or is convinced that the case is based on merits and involves a question of law to be solved, the court admits the case. Thus, this is called an admission of the case.

6. In the present case, once the writ petition had been admitted, the same could not have been dismissed solely on the ground of delay and latches, rather it was required to be heard and decided finally on merits by the learned Single Judge, more particularly when the respondents too were callous in dealing with the case of petitioner, either in filing objections to the writ petition or in deciding the representations of petitioner.

7. A perusal of the writ file reveals that the writ petition came to be filed on

04.10.2012. Notice to the respondents for filing objections/reply was issued on 3 LPA 139/2019

05.10.2012. However, objections to the writ petition came to be filed by the respondents only on 02.03.2016 after granting number of opportunities; meaning thereby the respondents took about three years and five months in filing objections to the writ petition. Not only this, in the objections to the writ petition, the respondents have themselves admitted that the petitioner had made representations to the respondents which were forwarded to the higher authorities, but the respondents have failed to mention what happened to those representations. Thus, one can easily understand the callous attitude of respondents towards the petitioner in not deciding his representations despite taking number of years, whereas, on the other hand, the respondents in the objections to the writ petition had pleaded that the writ petition was bad on account of delay and latches. Objections to the writ petition also reveal that the respondents terminated the services of petitioner without conducting any inquiry in accordance with law, which is against the mandate of Article 311(2) of the Constitution of India (corresponding to Rule 33 of the Jammu and Kashmir Civil Services (Classification, Control & Appeal) Rules, 1956) and also violative of principles of natural justice. It is not the case of respondents that the petitioner was not traceable or that the notice issued to him was actually served upon the petitioner, rather, it appears, the respondents terminated his services at the back of petitioner without affording him a reasonable opportunity of being heard.

8. What is held by the Apex Court in paragraph-10 in a case, titled as, Canara Bank vs V.K. Awasthy, AIR 2005 SC 2090, is reproduced hereunder: “The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body 4 LPA 139/2019 embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ``Magna Carta''. The classic exposition of Sir Edward Coke of natural justice requires to “vocate interrogate and adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963 (143) ER 414), the principle was thus stated: "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam'' says God, “Where are thou has thou not eaten of the tree whereof I commanded tree that though should not eat''. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.”

9. Somewhat similar views were taken by the Apex Court in case Mohd. Yunus Khan vs State of Uttar Pradesh, (2010) 10 SCC 539, paragraph-16 whereof is reproduced hereunder: “15. We have to proceed keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be 5 LPA 139/2019 imposed in consonance with the statutory rules and principles of natural justice…….”

10. It appears, the respondents have also not put their stance in the objections that on what grounds the similarly situated persons came to be reinstated into service.

11. Viewed thus, we deem it proper to allow the appeal. Accordingly, the appeal is allowed and the order impugned dated 19.03.2019 passed by the learned Single Judge in SWP No.2249/2012 is, hereby, set aside. Respondents are directed to initiate inquiry against the petitioner in accordance with law, of course after affording an opportunity of hearing to the petitioner. Let the inquiry be completed within a period of three months from the date a copy of this order is made available by the petitioner to the respondents against proper receipt. Whether the petitioner is to be reinstated in service or not shall depend upon the outcome of such inquiry. It is made clear that if the respondents fail to initiate inquiry proceedings against the petitioner or conclude the same within the time granted, the petitioner shall be deemed to have been reinstated in service, however, he shall not be entitled for any monetary benefits during the period he remained absent from service. Connected CM(s), if any, shall stand disposed of accordingly. Jammu .08.2022 (Anil Sanhotra) (Wasim Sadiq Nargal) Judge (Tashi Rabstan) Judge Whether the order is reportable ? Whether the order is speaking ? Yes/No Yes/No 6 LPA 139/2019 This judgment is announced by me in terms of Rule 138(4) of the Jammu and Kashmir High Court Rules, 1999 Jammu 16.08.2022 (Anil Sanhotra) (Tashi Rabstan) Judge