Chanam Chaoba Singh And Others vs State Of Manipur And Others

R.S., CJ

This appeal has been filed challenging the order of the learned Single Judge dated 21.12.2017 passed in W.P(C) No.632 of 2015.

[2] The facts of the case as has been enumerated by the learned Single Judge are as follows:-

"[3.1] The facts of the case as narrated in the petition are that the petitioner was initially appointed by his Highness, the Maharaja of Manipur as a Constable of the erstwhile Manipur State Police on 03-02-1944 under Rule 8 of the Rules for the Management of the State of Manipur. On 06-06-1944 the petitioner was promoted to the post of Asstt. Sub-Inspector and was further promoted to the post of Sub-Inspector vide order dated 30-09-1950. The petitioner, while in service, completed his graduation; passed the prescribed departmental examination under the Assam Public Service Commission in the year 1956 and cadet's training from Barrakpur PTC, West Bengal. While the petitioner was serving as SubInspector, he was superseded by one Shri Th. Shandabihari Singh as Inspector on the plea of his being a graduate and very shortly thereafter, the petitioner learnt of a recommendation made for promotion of one untrained matriculate Jr. Sub-Inspector without considering his case. Being aggrieved by the action of the authorities, he made a protest note / representation dated 22-08-1959 to the Superintendent of Police, Manipur, with an advance copy to the Hon'ble the Chief Commissioner, Manipur for favour of information, praying for consideration of his promotion by holding a Review DPC.

[3.2] As a bolt from the blue and to his utter shock and surprise, the Superintendent of Police, Manipur instead of recommending his name for promotion, issued an order being O.B. No. 1102 dated 04-06-1960 by treating his protest note / representation for promotion as a resignation letter. Being aggrieved by the said discharge order dated 04-06-1960, the petitioner made various representations to the State Government and its authorities from time to time including the representation dated 11-03-1998 which was disposed of by the State P a g e | 3 W.P. (C) No. 632 of 2015 Government vide its letter dated 13-10-1998 to the effect that the State Government has carefully examined the representation and rejected the same as his case being too old and opening of such a case will unsettle the already settled cases.."

[3] The appellant/petitioner approached the Manipur Human Rights Commission for pensionary benefits and compensation which directed the appellant/petitioner to approach the Court of competent jurisdiction.

Thereafter, the appellant /petitioner approached the Chief Secretary, Manipur and made a formal request i.e. dated 24.11.2008. The appellant thereafter filed a W.P(C) No.342 of 2009 to quash the order being O.B. No.1102 dated 04.6.1960 whereby he was treated as discharged from service consequent to his resignation. That case was disposed by the Hon'ble Gauhati High Court by following the principle laid down in State of Maharastra vs. Digambar, (1995) 4 SCC 683 primarily on the ground that there was delay of 49 years in filing the writ petition.

[4] It is pertinent to mention that the order of the Hon'ble Gauhati High Court passed on 05.6.2009 in W.P(C) No.342 of 2009 was passed on merits and prayer for withdrawing was allowed and the writ petition was dismissed as withdrawn. The prayer for liberty to file a fresh petition was considered and rejected. Thereafter, the appellant/petitioner filed series of representations. He, thereafter filed the present writ petition for the very same relief and based on the objection made by the State, the learned Single Judge dismissed the writ petition primarily on the ground of delay and laches. Para No.7 of the order, against which the present appeal is filed, is extracted as follows:-

"[7] In the present case, the impugned order was issued on 04-06-1960 by which the petitioner was discharged from service w.e.f. 03-06-1960. This impugned order has been challenged by the petitioner on the inter-alia grounds that the representation dated 22-08-1959 cannot be considered to be tendering a resignation but one praying for recommendation for his promotion and moreover, the Superintendent of Police was not competent to issue the impugned order. On perusal of the said representation, it is seen that it would mean two things - one, a prayer has been made for recommending his name for promotion to the post of Inspector of police and two, in the event of his being superseded for the second time, he would quit from service. In any case, the impugned order has been issued, rightly or wrongly, by treating the said representation as a letter of resignation. Be that as it may, the fact remains that the petitioner has been discharged from the service vide impugned order issued by the Reserve Inspector of Police for and on behalf of the Superintendent of Police. If the petitioner was really aggrieved by the said order, it was open to him to approach the appropriate forum within a reasonable time. Having failed to do that and after having slept for more than 38 years without any explanation, he wake up all of a sudden and started submitting representations and in particular, the representation dated 11-03-1998 followed by another dated 19-06-1998 which were rejected vide letter dated 13-10-1998 of the Special Secretary (Home), Government of Manipur. It is surprising to note that despite the subject-matter in issue being arisen out of the dismissal from service and not the violation of the fundamental rights like right to life, the petitioner approached the Manipur Human Rights Commission by way of a complaint being MHRC Case No.4702 of 2004 for redressal of his grievances arising out of non-payment of pensionary benefits. The aforesaid case came to be closed on 03-06-2005 on the basis of a report submitted by the State Government with the observation that the petitioner might approach the appropriate court of jurisdiction. Only in the year 2009, the petitioner filed a writ petition being W.P(C) No.342 of 2009 which was dismissed as withdrawn vide order dated 05-06-2009 of the High Court and the instant writ petition was filed on the same cause and with the same prayer in the year 2015 after about 55 years from the day when he was discharged from the service. As has been held in the case of Karnataka Power Corporation Ltd. Vs. K. Thangappan & anr. (supra), the delay or laches shall be one of the factors to be considered by the High Court while exercising its power under Article 226 of the Constitution. On perusal of the averments made in the writ petition, it is seen that there is no explanation at all as to why the appropriate forum was not approached by the petitioner during the period from 1960 to 1998 and moreover, the question of violation of the fundamental rights like right to life did not arise at all. Any interference in the present petition may tantamount to reviewing the earlier dated 05-06-2009 whereby the High Court had made specific observation that in view of the delay of 38 years, it was not a fit case to be entertained and moreover, the prayer for grant of liberty to file a fresh petition was considered and rejected by the High Court. The situation with respect to delay or laches cannot be said to have improved now after about 55 years which may warrant any interference by this court. Therefore, there is no reason as to why an indulgence be given by this court to the petitioner when he himself was grossly negligent and not bothered to redress his grievance in time. Even assuming for the sake of argument that the petitioner could provide proper explanation for the delay in approaching this court, one hurdle will always remain standing on his way. As has been stated hereinabove, the earlier writ petition being W.P.(C) No.342 of 2009 filed by the petitioner when the delay was of 49 years, was withdrawn on 05-06-2009. What is to be noted is that while considering the said earlier writ petition, the High Court found that it was not a fit case to be entertained on account of the delay of 49 years and that too, in terms of the decision of the Hon'ble Supreme Court rendered in State of Maharashtra Vs. Digambar, (1995) 4 SCC 683. It may further be noted that the High Court rejected the prayer for grant of liberty to file a fresh petition. Therefore, this court is of the considered view that the instant writ petition is not maintainable at all and in terms of the principle laid down by the Hon'ble Supreme Court in the case of Vinod Kapoor Vs. State of Goa & ors. (supra) which has been reiterated in Sandhya Education Society & anr. Vs. Union of India (supra), the same is liable to be dismissed as not maintainable. Similar is the view taken by the Hon'ble Gauhati High Court in Chengajan Krimijan Fishery Samabai Samity Ltd. Vs. Government of Assam, 2006 (Suppl.) GLT 395. Therefore, there will be no need of going into the merit of the case at this belated stage"

[5] Mr. N.Jotendro, learned senior counsel appearing for the appellant pleaded that since it is a case of acceptance of resignation, the appellant/petitioner will be entitled to gratuity in terms of the Payment of Gratuity Act, 1972. However, it is to be noted that such a plea cannot be accepted because in the present case, the appellant/petitioner was discharged from service w.e.f. 3.6.1960 as his resignation was accepted. Subsequent provision under the Gratuity Act, 1972 may not apply to the facts of the present case. Mr. Jotendro thereafter referred to the All India Services (Leave) Rules, 1955, more particularly, clause 20(B) which reads as follows:-

"20 (B) Payment of cash equivalent of leave salary to a member of service who resigns from service----- the Government shall suo moto sanction to a member of Service who resigns from the service the case equivalent of leave salary in respect of earned leave at his credit on the date of cessation of service, to the extent of half of such leave at his credit, subject to a maximum of 150 days.

33 : Inserted vide DOP&T Notification No.11019/6/97-AIS(III) dated 09.03.1998 (GSR No.71 dt. 28.03.1998).

34 : Inserted vide DOP&T Notification No.11019/7/93-AIS(III) dt. 22.12.1993 (w.e.f. 14.7.1982) (GSR No.52 dt. 22.12.1999). and pleaded that it is Government's duty to suo moto sanction the cash equivalent to leave salary to a member of the service who resign. To this, there is an objection raised by Mr. M.Rarry, learned Addl.AG that rule 20(B) was inserted vide notification DOP&T Notification No.11019/6/97-AIS(III) dated 09.03.1998 (GSR No.71 dt. 28.03.1998) and DOP&T Notification No.11019/7/93-AIS(III) dt. 22.12.1993 (w.e.f. 14.7.1982) (GSR No.52 dt. 22.12.1999).

[6] On the admitted facts of discharge on the basis of resignation in 1960 which has become final in all aspects, the challenge to the O.B.No.1102 dated 04.6.1960 at the belated stage was rightly rejected by the learned Single Judge, more so, in the light of the earlier order of the Hon'ble Gauhati High Court in W.P(C) No.342 of 2009 where the O.B.No.1102 dated 04.6.1960 was challenged. On merit the writ petition was dismissed and liberty was declined. The appellant/petitioner has not chosen to file any appeal against such order.

[7] The relief of service benefits consequent to resignation will have to be governed by the rules applicable at the time of acceptance of the resignation and discharge. Appellant cannot plead any benefit based on service rules which were enacted after the relevant date, namely, the date of discharge i.e. 4.6.1960. Even clause 20(B) which has been extracted, is part of the All India Services (Leave) Rules, 1955. The insertion of clause 20(B) was done in March, 1998. It is therefore not clear how such a provision could be made applicable to the period when the appellant/petitioner was discharged on accepting his resignation i.e. by O.B.No.1102 dated 04.6.1960. As a result, neither on merit nor on law the appellant is able to make out a case. Furthermore, we find learned Single Judge was justified in dismissing the writ petition primarily on delay and laches and also relying upon earlier decision of Gauhati High Court in respect of the very same appellant.

In the result, we find no merit in the appeal and the same is.