Ex-Constable Harpinder Singh v. State of Punjab & Ors.

Judgment

1. This petition has been filed under Articles 226 & 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing order Annexure P-1 dated 06.11.1997, Annexure P-2 dated 24.06.1998, Annexure P-3 dated 17.10.2000 and Annexure P-4 dated

29.05.2001.

2. Facts in brief are that the petitioner was serving as a Constable in Commando Battalion in Punjab Police and was dismissed from service vide order Annexure P-1 dated 06.11.1997. The authorities invoked powers under provisions of Punjab Police Rules and Article 311 (2) of the Constitution of India for dispensing with inquiry while passing the impugned order. The facts and circumstances taken into account for passing order Annexure P-1 are that the petitioner with his accomplice, entered the house of one Dara Singh, outraged the modesty of his wife, extracted money CWP No. 5075 of 2009 2 and threatened him with dire consequences in case he made any complaint. Further charge against the petitioner is that he alongwith his colleagues caught hold of one Ravinder Kumar, a Bihari migrant labourer, stuffed cloth

into his mouth and committed carnal intercourse with him whereupon, FIR bearing No. 228 dated 13.10.1997 under Sections 337/34 IPC, P.S. Kotwali, Barnala was registered. The petitioner also gave threats to citizens.

3. The petitioner carried an appeal which was dismissed vide order Annexure P-2 by DIG, Commando (Administration and Operations), Patiala, finding the punishment awarded to the petitioner to be commensurate to the misconduct. Revision petition filed by the petitioner has been dismissed vide order Annexure P-4 passed by IG, Commando, Punjab, Patiala.

4. The only argument addressed by learned counsel is that co- accused of the petitioner namely Tarsem had gone up in appeal before the Hon'ble Supreme Court of India. The appeal was accepted vide judgment dated 25.01.2006 and, therefore, the petitioner be allowed to the same relief as allowed to his accomplice in view of the relief given to the co- accused/co-accomplice.

5. Learned counsel for the respondent contends that the petitioner had earlier approached this Court and, therefore, would have no right to rake up the issue again. It has further been pleaded that the petition suffers from the vice of delay and latches.

7. I have considered the rival contentions. In para no. 5 of the writ petition, it has been pleaded that the petitioner earlier approached this Court by way of filing CWP No. 15508 of 1998 in challenge to order dated 24.06.1998 passed by DIG Commando, CWP No. 5075 of 2009 3 Patiala. Thus, the petitioner had earlier challenged the action of the respondent in dismissing the petitioner from service vide earlier litigation. The petition, however, was withdrawn and accordingly disposed of on

30.09.1998. It is thereafter that the petitioner moved a mercy petition, which was dismissed vide order Annexure P-4 by Inspector General of Police Commando, Patiala.

8. I am of the considered opinion that because the petitioner earlier approached this Court in challenge to the impugned orders, cannot raise the issue again by way of fresh challenge, only on the ground that co-accused of the petitioner namely Tarsem had gone up upto Hon'ble Supreme Court of India, in which case his appeal had been accepted. The petitioner cannot take any benefit of relief granted to Tarsem, his co-accused.

9. I am also of the opinion that the present case cannot be entertained on account of delay and laches.

10. The Hon'ble Supreme Court of India, in M/s Rup Diamonds and others v. Union of India and others, 1989(2) Supreme Court Cases 356, while considering the issue of laches, has held (in paras 8 and 9) in the following terms:- “8. .......... Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a Court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. CWP No. 5075 of 2009 4 There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. ..........

9. On a consideration of the matter we think that, apart altogether from the merits of the other grounds for rejection, the inordinate delay in preferring the claim before the authorities as also the delay in filing the writ petition before this Court should, by themselves, persuade us to decline to interfere.”

11. In Jagdish Lal and others v. State of Haryana and others, (1997) 6 Supreme Court Cases 538, a Three Judge Bench of the Hon'ble Supreme Court of India (in para-18) has held in the following terms:- “18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake up when they had the impetus from Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 and Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715 ratios. ................. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well.”

12. In Government of W.B. v. Tarun K. Roy and others, (2004) 1 Supreme Court Cases 347, the Hon'ble Supreme Court of India (in para- 34) has held as under:- CWP No. 5075 of 2009 5 “34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138. The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. .................”

13. In U.P. Jal Nigam and another v. Jaswant Singh and another, (2006) 11 Supreme Court Cases 464, while making a reference to various Supreme Court judgments, the following has been held (in paras 6 and 13) :- “6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights .......” "13. In view of the statement of law as CWP No. 5075 of 2009 6 summarized above, the respondents are guilty since the respondents has acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. .......” While thus holding, the Hon'ble Supreme Court of India granted relief only to the persons who had approached the court in time while they were still in service or who had obtained interim order for their retirement.

14. In the case in hand, last order was passed by the departmental authorities in the year 2001. Even the Hon'ble Supreme Court of India decided the issue raised by the co-accused of the petitioner in the year 2006. The present petition has been filed in the year 2009. The petitioner accepted the order of dismissal from service for 9 years i.e. since 2001. In view of the law laid down by Hon'ble Supreme Court of India as noticed above, in my considered opinion, the petitioncer cannot raise the issue at this belated stage. The petitioner cannot be allowed to reopen the issue after such delay. The petitioner was not vigilant so as to agitate his rights and he acquiesced with the situation.

16. So far as claiming parity with Tarsem, his co-accomplice, is concerned, Tarsem was vigilant of his rights and agitated the same and did not remain dormant like the petitioner. Tarsem pleaded his own case on its own merit. CWP No. 5075 of 2009 7

17. Considering the facts and circumstances noticed above, no relief is permissible to the petitioner in extra ordinary writ jurisdiction.

18. Petition is accordingly dismissed.

25.08.2010 shivani 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? (AJAI LAMBA) JUDGE