Sri Sudarsan Das vs The Chairman, Food Corporation of India and Others

R.K. Patra, J.—By this writ-petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks quashing of order dated 27.8.1986 (Annexure-2) dismissing him from service.

The case of the petitioner is that he joined as Messenger in the office of the District Manager, Food Corporation of India. Balasore on 23.12.1968. He as falsely implicated in Balasore P.S. Case No. 61 of 1981 under Sections 147/148/149/325/323/307/302, I.P.C. While undergone trial in respect of the aforesaid offences in the Court of the Sessions Judge. Balasore in S.T. No. 16 of 1982, he was placed under suspension by office order dated 2.6.1982 (Annexure-1). To his bad luck, learned Sessions Judge by judgment dated 20.12.1982 convicted him u/s 323, I.P.C. and sentenced to undergo R.I. for one year. In view of said conviction, the Regional Manger dismissed him from service by office order dated 27.8.1986 (Annexure-2). Being aggrieved by the order of conviction, he filed Criminal Revision No. 510 of 1982 in this Court. By judgment dated 24.11.1986 (Annexure-3) this Court set aside his conviction and acquitted him of the charge. After being acquitted, he made representation on 15.12.1986 (Annexure-4) to the Managing Director of the Food Corporation of India praying for reinstatement. As there was no response, he made Anr. representation on 29.12.1989 (Annexure-5), but no decision on the representation was communicated. This was followed by series of representations including the representations dated 25.7.1991, 6.3.1997 and 8.9.1997 (Annexure-6, 8 and 9 respectively), but none of them was attended to. Finding no other way, he moved this Court by filing the present writ petition.

Counsel for the petitioner contended that the petitioner having been acquitted of the charge u/s 323, I.P.C. by this Court in Criminal Revision No. 510 of 1982, he is entitled to be reinstated in service, inasmuch as the so-called conviction no more subsists. Shri Nayak, learned Counsel for the opposite parties submitted that the writ petition should be dismissed on the ground of delay and latches. According to him. although the petitioner was acquitted of the charge by this Court in November, 1986, he remained contented by making representation to the authorities and the time spent for making such representations cannot be a valid ground to explain the delay and latches. In this connection, he placed reliance on the judgment of the Supreme Court in State of Orissa and Others Vs. Shri Arun Kumar Patnaik and Others, . Shri Nayak also submitted that even if the order of dismissal dated 27.8.1986 at Annexure-2 is quashed, the petitioner cannot be reinstated in service as he had been convicted in Anr. case i.e. G.R. Case No. 677 of 1980.

There questions arise for-consideration in this writ petition:

(i) What is the effect of the judgment of this Court dated 24.11.1986 in Criminal Revision No. 510 of 1982 acquitting the petitioner of the charge u/s 323, I.P.C.?

(ii) whether in the facts and circumstances, the writ petition is liable to be rejected on the ground of delay and laches? and

(iii) what relief the petitioner is entitled to?

Let us proceed to consider the matter is seriatim:

(i) The order dismissing the petitioner from service is dated 27.8.1986 (Annexure-2). A bare perusal of the said order would show that he dismissal was solely and entirely based on his conviction u/s 323, I.P.C. in Sessions Trial No. 16 of 1982. There is no dispute that the aforesaid conviction was set aside by this Court in judgment dated 24.11.1986 rendered in Criminal Revision No. 510 of 1982 and he, has been acquitted of the charge. We may take that as the conviction was set aside, it has to be taken as if he was never convicted. In other words, with the order of acquittal the misconduct following his conviction no more subsists. With the order of acquittal, the misconduct based on so-called conviction stands affected. As the basis for dismissal no more exists for the reasons aforesaid, the impugned order of dismissal is liable to be quashed.

(ii) Ordinarily, no application under Article 226 of the Constitution is entertained unless it is made within a reasonable time after the alleged infringement of one''s right. Whether there is delay or not however has to be decided with respect to the facts peculiar to each case. The question is one of discretion of the Court. It is true the petitioner has filed this writ petition three years after the order of acquittal recorded by this Court in Criminal Revision No. 510 of 1982. The fact remains that soon after his acquittal, he made representations to the concerned authority for reinstatement but no decision was communicated to them. He had to make series of representations but none of them was responded. This is therefore a case where the authority did not communicate its decision on the representations. One can plead to refuse relief under Article 226 of the Constitution of India, if the Applicant goes on making representation after their rejections here is a case in which no decision was at all communicated on the representations. Ultimately, when he did not find any response, he filed this writ petition. As the opposite parties are themselves guilty of utter negligence in not at all attending to the representations, it does not befit on them to plead delay or laches against the petitioner. The decision of the Supreme Court In the case of Arun Kumar Patnaik (supra) cited by Shri Nayak is of little assistance to him. The ratio of that case cannot be extended to the present one inasmuch as in that case appointment, seniority and promotion were sought to be questioned after 12 years. During these long years the contesting parties had got seniority over the writ petitioner as well as promotion to higher ranks and the rights accrued to them with the passage of time could not have been interfered with by a writ Court after lapse of such long time. In the present case, no third party''s right is affected so as to disentitle the petitioner the relief under Article 286. Therefore, we are not inclined to dismiss the writ petition in limine solely on the ground of delay or laches.

(iii) For the reasons aforesaid, we quash the impugned order of dismissal dated 28.7.1986 (Annexure-2) Once the order of dismissal is set aside, the petitioner would be entitled in law to be reinstated in service with full back wages. Shri Nayak. however, by referring to judgment of this Court dated 30.11.1989 passed in Criminal Revision No. 235 of 1985 (Annexure-A) submitted that as the petitioner was also convicted in Anr. case i.e. G.R. No. 677 of 1980 (confirmed by this Court in the above noted judgment), he is not entitled to be reinstated even if the impugned order at Annexure-2 is quashed, he has not brought to our notice any order passed by the departmental authority with regard to the petitioner''s service basing on his conviction in G.R. No. 677 of 1980.

In the circumstances, we direct the opposite parties to reinstate the petitioner in service with full back wages. This operative part of the order is however subject to any decision taken or to be taken in respect of the petitioner''s services in view of his conviction in G.R. No. 677 of 1980.

The writ petition is allowed.

Pradip Mohanty, J.

I agree.