Farooq Ahmad Matoo vs State and Others

In this writ petition order No. 125 of 1989 dated 18.1.1989 (annexure P2) is impugned.

Petitioner Senior grade constable of State Armed Police left his Btn on 28.8.84. As per the petitioner authorisedly on leave, as per the

respondents unauthorisedly without leave. The petitioner was discharged from the police force w.e.f 28.8.84 under order dt. 30.1.85 of competent

authority. On the representation of the petitioner, denevo enquiry was held and the petitioner was taken back in police force vide order dt. 18.1.89

(annexure P2) on the recommendation of the enquiry officer (annexure P1). In the order of reinstating the petitioner back in service, it is provided

that the period of absence (discharge) w.e.f 28.8.84 to 18.1.89 (four years four months and twenty one day) has to be treated as diesnon. This

part of the order of reinstatement dt. 18.1.89 is challenged on the ground that once the petitioner was taken back and reinducted in the Police

force, the period from 28.8.84 to 18.1.89 during which petitioner stood discharged has not been treated on duty. The recommendation of the

enquiry officer recommending the treatment of the period as leave of whatsoever kind was due has not been accepted. This has vitiated the orders

of competent authority of treating the period as diesnon. The petitioner was kept out of service for no fault of his therefore; he should have been

treated on duty for the period and paid back wages for the whole period.

Respondent No. 6 has filed reply on behalf of the respondents. It is alleged that the petitioner absented on 28.8.84 and thereafter he was

discharged. On his representation denovo enquiry was held and he was reinstated as prayed in the petition. It is further averred that on enquiry, it

was found that though the petitioner had no sufficient cause for reinduction in the police force but a lenient view was taken and he was reinducted

in the force. The petitioner was found on unauthorised absence from 28.8.84. He had not taken any permission for remaining off duty. He had not

even obtained station leave permission. As a member of disciplined force, such acts and omissions cannot be viewed, but with seriousness and

disapproval. The reason for remaining absent for the whole period as put forth by the petitioner was not substantiated before the competent

authority. The petition suffers from inordinate delay, in so far, as after eight years the petitioner has approached the court against the order. Besides

the petitioner had alternate remedy available which he did not avail. Both these circumstances have to be taken into consideration. Petitioner is

disabled to seek pay for the period from 28.8.84 to 18.1.89, during which period the petitioner did not at all work and rendered no duties. He

cannot be paid for no work. The illness of a family member of the petitioner, as contended by him, cannot be a ground for petitioner to remain

absent unauthorisedly and commit indiscipline. The impugned order is neither arbitrary nor illegal. The order is covered by J and K Police rules,

and the petition merits to be dismissed.

The counsel for the parties were heard finally on all aspect of the case on their consensual submissions. It is more than made out from record,

that the petitioner has approached the writ court in Dec.1997. The impugned order is passed as early as on 18.1.1989, vide this order, the period

for which the petitioner was discharged from police force from 28.8.84 to 18.1.1989 was treated as diesnon.

It is obvious that the petitioner has awoken to challenge the order almost after nine years after it was passed. There is no explanation why the

order was not challenged earlier except a mention in para 8 of the petition that after the petitioner fell aggrieved of the impugned order he made a

representation to the competent authority against that part of the order, where under the period of his absence was treated as diesnon. Though, a

copy of alleged representation is annexed with the petition (annexure P3) but perusal of annexure P3 reveals that it does not bear any date and

appears to have been made just a little earlier to filing of the instant writ. There is no mention of any other representation, nor is one on record.

Obviously there is no explanation whatsoever for inordinate duly in questioning the impugned order before the writ court.

The respondents have denied that any such representation was filed or received by the competent authority in their counter.

Viewed thus, it is a case which discloses extrenrfe laches on the part of the petitioner. There is no explanation for in ordinate delay muchless

sufficient or adequate explanation.

In AIR 1984 SC 1527, cited by the counsel for the petitioner is not applicable to this case. In that case, the Apex court refused to throw out the

petition for delay for the reason that the department failed to finalise list for 12 years and were operating the provisional seniority list for promotion

and also failed to dispose of the representation made against it. That at all is not the case here. No question of seniority as such is involved in this

case.

The other authority cited as 1998 SLJ 97 is admittedly not applicable to this case. In this case laches were not allowed to come in the way of

relief given to the petitioner for the reason, that the order impugned in that case was found passed by an authority wanting in competence and

lacking jurisdiction. Again that is not the case here.

The petitioner has not resorted to available alternate remedies of review and appeal, as provided by J and K Police Rules. The right to appeal

and review has been statutorily granted to the police personal including the petitioner in terms of the Rules. The petitioner though, fully aware about

the order, has not chosen to take recourse to statutory available remedies of appeal or review. Though, the Rule of exhausting of available

remedies is a rule of convenience and discretion, in contradistinction to the Rule of Law not effecting the jurisdiction of the court, yet in the totality

of the facts and circumstances of this case, availabilities of these alternate remedies bars the remedy pursued by the petitioner in this petition, in the

writ court. After all entertainment of writ is a matter of discretion and not of jurisdiction.

The conclusions arrived at by the Enquiry officer and the orders passed by Competent authority thereto, cannot be reopened and examined in

this court as if this court is sitting in appeal against the order of the competent authority. The competent authority has ordered treatment of the

period of absence rather discharge from force as diesnon on the available record and on consideration of the matter. This court is not supposed to

question the wisdom behind the impugned order so long the powers exercised by the competent authority regarding treatment of period of

absence, as in this case, within the parameters of law and rules. Whether the petitioner was reinstated as a humanistic gesture to the son of the

police personal who died in service or whether the petitioner was found to be unauthorisedly absent are matters to be determined on the material

and evidence on enquiry. The finding of the enquiry officer thereto cannot be questioned before the writ court, so long the finding and treatment of

the case by the competent authority is not perverse and vitiated by legal malice. Normally the finding of fact based on material cannot be subjected

to interference in writ jurisdiction. For the aforesaid reasons there is no merit to the petition which is dismissed. However, as an expediency of

justness, it merits to be observed that the affect of treatment of period of discharge/absence of petitioner as diesnon on petitioner's seniority,

increment and retiral benefits etc has to be cleared and this aspect of the matter needs to be adverted to by the competent authority after keeping

in view the totality of facts and circumstances of the case.

The petition is accordingly dismissed, alongwith connected CMPs.