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Judgment
Prashant Kumar, J.—In this writ application petitioner prays for quashing the order as contained in Memo no. 3362 dated 26.11.1998 (Annexure-7) passed by respondent no. 2 whereby the petitioner was departmentally punished and three punishments, i.e., (i) The period of alleged absence has been treated as leave without pay(ii) The pay and allowance has been fixed at the initial stage (iii) The allowance paid during suspension period is sufficient and nothing more will be payable, imposed upon him. Petitioner further prays for quashing the order as contained in Memo no. 513 dated 26.04.2002 (Annerxure-8) issued by respondent no. 2 whereby he gave direction to deduct Rs. 28,950/- from the salary of petitioner in 15 equal monthly installments. Petitioner was initially appointed as Godown Chowkidar on muster roll by Bihar Police Building Construction Corporation (herein after refer as BPBCC) on 13.09.1975 and his service regularized on 04.04.1980. It is stated that while petitioner was posted in Bhagalpur Sub-Divisional Godown as godown chowkidar, an F.I.R. lodged against him alleging therein that he alongwith others misappropriated government property. He was put under suspension with effect from 15.04.1982. Thereafter, a departmental proceeding initiated against him vide memo no. 6441 dated 29.11.1982. Petitioner filed his written statement, stating therein that on the date of occurrence he was not present in the head-quarter, as he had gone to see his ailing mother. It appears that on the basis of F.I.R., G.R. Case no. 669/1982 instituted and after trial petitioner was convicted u/s 409/120B of the I.P.C. and sentenced to undergo R.I. for two years. It appears that against the aforesaid judgment of conviction and order of sentence, petitioner preferred an appeal bearing Criminal Appeal No. 01 of 1993 before Sessions Judge, Bhagalpur, which was allowed and the judgment of learned Judicial Magistrate set aside. Thereafter, Government preferred an appeal bearing Government Appeal No. 38 of 1997, whereas the B.P.B.C.C. filed revision bearing Criminal Revision No. 639/1996 before the Patna High Court, which were ultimately dismissed. Thereafter, departmental proceeding had been disposed of by respondent no. 2 vide order dated 26.11.1998 (Annexure-7) and following punishment imposed upon the petitioner:
I. The period of alleged absence has been treated as leave with out pay,
II. The pay and allowance has been fixed at the initial stage,
III The allowance paid during suspension period is sufficient and nothing more will be payable.
Petitioner further states that he joined in the Office of Executive Engineer, Ranchi Division of B.P.B.C.C. in compliance of Annexure-7. It further appears that while petitioner working in the office of Executive Engineer, Ranchi Division of the Corporation, another order purported to have been passed by respondent no. 2 on 26.04.2002 was served upon him, whereby Respondent no. 2 gave direction to deduct Rs. 28,950/- from the salary of petitioner in 15 equal monthly installments.
Mr. Rajan Raj, learned counsel for the petitioner submits that as petitioner had been acquitted by Criminal Court on the same charge therefore, it is not open for respondent no. 2 to punish petitioner on same charges by impugned orders dated 26.11.1998 and 26.04.2002. He further submits that respondent no. 2 after issuance of order dated 26.11.1998(Annexure-7) had become functus-officio, thus, he has no jurisdiction to pass another order of punishment on 26.04.2002. Thus, order dated 26.4.2002 is wholly illegal and with out jurisdiction.
On the other hand, Sri R.N. Sahay, learned counsel for the respondents submits that impugned orders as contained in Annexures-7 and 8 have been passed by respondent no. 2 at Patna. Therefore, present writ application is not maintainable in this Court. It is further submitted that there is inordinate delay in filing of writ application, therefore, on the ground of delay also this writ application is liable to be dismissed. It is further submitted that impugned orders passed after giving opportunity of hearing to the petitioner, thus, there is no illegality in the impugned orders which requires interference by this Court.
After hearing the rival contention of the parties, following questions arose for determination in this writ application:-
Whether this Court has jurisdiction to deal with the matter?
Whether this writ application is liable to be dismissed on the ground of delay and latches?
Whether impugned orders are legally sustainable?
Re : Question No. I: Whether this Court has jurisdiction to deal with the matter?
Article 226(2) of the Constitution of India reads as follows:
The power conferred by clause(1) to issue direction, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories
From perusal of aforesaid provisions, it is clear that if any part of cause of action arose in the territorial limits of any High Court, then said High Court has power to deal with the matter irrespective of the fact that said authority or person, against whom direction or writ required to be issued seats or resides within the territorial jurisdiction of another High Court It has been held by Their Lordships of Supreme Court in the case of Om Prakash Srivastave versus Union of India and another(2006) 6 SCC-207 that
In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court''s jurisdiction and such infringement may take place by causing him actual injury or threat thereof"
From perusal of Annexure - 7, it appears that same has been passed by Chairman-cum- Managing Director on 26.11.1998 in Patna. It further appears from Annexure-3 that during suspension period, head-quarter of petitioner was fixed at Patna. Thus, the order as contained in Annexure-7 was passed at Patna and the same was communicated to the petitioner in Patna. Therefore, so far Annexure-7 is concern, no part of cause of action arose within the territorial jurisdiction of this Court. In that view of the matter, according to aforesaid judgment of Hon''ble Supreme Court, this Court has no territorial jurisdiction to deal with the matter relating to Annexure-7.
However, from perusal of impugned order as contained in Annexure-8, it appears that though same was passed by respondent no. 2 at Patna but same was communicated to the petitioner at Ranchi by Executive Engineer of Ranchi Division of B.P.B.C.C. It further appears that impugned order (Annexure-8) is require to be implemented at Ranchi by deducting Rs. 28,950/-from the salary of petitioner in 15 equal monthly installments. Thus, so for Annexure-8 is concerned, part of cause of action arose within the territorial jurisdiction of this Court Thus, I am of the view that this court has territorial jurisdiction to deal with matters, so far it relates to impugned order as contained in Annexure-8.
Re: Question No. II: Whether this writ application is liable to be dismissed on the ground of delay and latches?
Sri R.N. Sahay, learned counsel for the respondents vehemently argued that present writ application is liable to be dismissed on the ground of delay. It is submitted that impugned order as contained in Annexure-8 has been passed on 19.04.2002 and the same was communicated to the petitioner in the year 2002 itself. But present writ application filed on 04.03.2009 i.e. after lapse of more than seven years. It is submitted that petitioner had not given reasonable explanation for such delay. Accordingly, he prayed that the writ application may be dismissed on the ground of laches and delay.
On the other hand, Sri Rajan Raj, learned counsel for the petitioner submitted that after issuance of impugned orders petitioner filed several representations, lastly on 17.7.2008 before respondent no. 4 for redressal of his grievance, but no heed given by the respondents to the said representations. Accordingly, learned counsel submits that delay in filing of writ application had been sufficiently explained in this case. He further submitted that it is well settled that if the writ application is admitted, the rule to dismiss the writ application on the ground of delay is require to be relaxed, more so when the case of petitioner is positively good. It is submitted that petitioner has already been punished by respondent no. 2 in the year 1998, thus, respondent no. 2 has no power to inflict another punishment on the same charges. Accordingly, it is submitted that the delay in filing of writ application can not become a ground to dismiss it.
A Constitution Bench of Hon''ble Supreme Court in Ram Chandra Shankar, Deodhar and otheRs. Vs. State of Maharastra and others", reported in (1974) 1 SCC-317 has held:
In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the petition Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J. in Tilokchand Motichand v. H.B. Munshi "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit...........It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.
Their Lordships had further held:
It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay in that the rights which have accrued to others by reason of the delay in fling the petition should not be allowed to be disturbed unless mere is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilok chand v. H.B. Munshi:
The party claiming Fundamental Rights must move the Court before oilier rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court
The Constitution Bench of Hon''ble Supreme Court in another case i.e. P.B. Ray. Vs. Union of India, reported in 1972(3) SCC-432 had held that
But, in view of the decision of the majority of the Full Bench of the Punjab High Court in S. Gurmej Singh v. Election Tribunal Gurdaspur, the delay in filing the petition was overlooked on the ground that, after the admission of a writ petition and hearing of arguments, the rule that, delay may defeat the rights of a party is relaxed and need not he applied if his case is "positively good.
Thus, from the aforesaid laws laid down by their Lordships of Supreme Court, it is clear that it is not mandatory that whenever there is delay, the court must necessarily refuse to entertain a writ application. It depends upon the'' facts of each case. It further appears that if by entertaining the writ petition right accrued to a third person is likely to be disturbed, then the writ application can be dismissed on the ground of delay. Thirdly, if the writ application has already been admitted and the case of petitioner is positively good, then the rule that the delay may defeat the right of a party can be relaxed.
The present writ application has been admitted vide order dated 3.8.2011. It further appears that by the impugned order (annexure-8) respondent no. 2 inflicted another punishment of deduction of Rs. 28,950/-from the salary of petitioner, though petitioner has already been punished for the same charges in the year 1998. Thus, in my view, petitioner has good ground to challenge Annexure-8. Moreover, I find that by issuance of Annexure-8, no legal right accrued to any third person. Therefore, by entertaining the present writ petition, which was field after seven years of issuance of annexure-8, no prejudice will be caused to any body. Under the said circumstance, relief claimed by the petitioner cannot be refused solely on the ground of laches and/or delay. Thus, I find no merit in the submissions of learned counsel for the respondents that the wilt application be dismissed on the ground of latches.
Re : Question no. III. Whether impugned orders are legally sustainable ?
As noticed above, petitioner has been departmentally punished vide order dated 26.11.1998 (Annexure-7) for mis-appropriation of departmental articles from the godown of Marjana Haat Godown of B.P.B.C.C. at Bagalpur. It appears that respondent no. 2 again by order dated 19.4.2002(Annexure-8) gave direction to deduct Rs. 28,950/-from the salary of petitioner in 15 equal monthly installments. It has been held by their Lordships of Supreme Court in S.B.I. and otheRs. Vs. S.N. Goyal reported, in (2008) 8 SCC-92 that "once an authority exercising quasi judicial power takes a final decision it can, not review its decision unless relevant statutes or rules permit such review". Their Lordships further held that " quasi judicial authority will become functus officio only when its order is pronounced, or published/notified or communicated (put in the course of transmission) to the party concerned''.
In the instant case, the impugned order as contained in Annexure-7 already communicated to the petitioner in the year 1998 itself and in compliance of said order, petitioner already joined under respondent no. 4 Thus, the order of punishment passed in departmental proceeding had already attend finality. Under the said circumstance, respondent no. 1 has become functus officio so far it relates to aforesaid charges.
In the counter affidavit filed by respondents, nothing has been brought on record to show that respondent no. 2 has any power to review its earlier order. Under the said circumstance, once respondent no. 2 has become functus officio by passing final order in a departmental proceeding, then it is not open for him to pass another order of punishment for the same charges, and that too, after lapse of four years without giving any opportunity of hearing to the petitioner. Thus, I find that aforesaid order as contained in Annexure-8 suffers from vital illegality.
I find one another ground on which impugned order (Annexure-8) is liable to be set aside. It has been mentioned in the body of impugned order that Government while reviewing the inquiry report of departmental proceeding conducted against Junior Engineer had come to the conclusion that from Chowkidar to Executive Engineer all are liable for mis-appropriation of departmental articles worth Rs. 5.79 lacs. Thus, Government directed different authorities to make necessary deduction from various employees including petitioner. There is nothing on record to show that Government of Bihar before coming to such conclusion had given any opportunity of hearing to the petitioner. In my view by giving direction to deduct Rs. 28,950/-a great prejudice has been caused to the petitioner. Thus, in my view, Annexure-8 is liable to be set aside being violative of principles of natural justice.
In view of discussions made'' above, this writ application is partly allowed. The order as contained in Memo no. 513 dated 26.4.2002 (Annexure-8) is hereby quashed. Respondents are directed to refund all amounts, if deducted from the salary of petitioner in pursuance of Annexure-8. As discussed above, in my view this application is not maintainable in this Court, so far it relates to impugned order as contained in Annexure-7.