Kharga Bahadur Pradhan vs State Of Sikkim And Ors

Heard Mr. N. Rai, learned Senior Counsel assisted by Ms. Malati Sharma and Ms. Sudha Sewa, for the petitioner. Also heard Dr. Doma T. Bhutia,

learned Additional Advocate General assisted by Mr. Thupden Youngda, Government Advocate, for the respondents.

By this writ petition under Article 226 of the Constitution of India, the petitioner has called into question the order of suspension dated 11.08.2009

passed by the Superintendent of Police, West District, Gyalshing and the order dated 19.11.2011 passed by the Senior Superintendent of Police, West

District, Gyalshing, dismissing the petitioner from service with effect from 19.11.2011, with a further prayer to allow him to join in his duty without

break in his service with all admissible pay and allowances.

The facts, as pleaded in the writ petition, are that the petitioner, while working as policeman (materials on record do not indicate what post the

petitioner was holding) and posted at Kaluk police station, was suspended in terms of Rule 10(2)(a) of Sikkim Police Force (Discipline and Appeal)

Rules, 1989, as amended (for short, the Rules), as he was detained in custody from 08.08.2009 for a period exceeding 48 hours in connection with a

criminal case, being Criminal Case No. 09 (08) 09 under Sections 302/201 of the Indian Penal Code, 1860 (for short, IPC). While he was facing trial, a

notice dated 12.08.2011 was served upon him on 14.08.2011, informing him that he could submit his reply to the said notice within 20.08.2011. Though

no departmental enquiry was conducted as per the said notice dated 12.08.2011, the petitioner was served with an order dated 19.11.2011 terminating

his service.

It is further pleaded that in Sessions Trial Case No.816 of 2013 corresponding to Kaluk P. S. Case No. 09 (08) 09, he was convicted under Section

302 of the IPC by an order passed by the learned Sessions Judge, Special Division-II at Gangtok, East Sikkim dated 24.02.2014. However, he was

acquitted of the charge under Sections 201 and 364 of the IPC. The petitioner had preferred an appeal against the judgment and order dated

24.02.2014, being Criminal Appeal No.12 of 2014 before this Court and this Court, by a judgment dated 30.03.2015, set aside his conviction and

sentence imposed upon him and the said judgment had attained its finality.

It is further stated that the petitioner had faced trial in General Register Case No. 21 of 2016 under Sections 420/468/120-B/471 of the IPC in the

Court of learned Judicial Magistrate, West Sikkim at Gyalshing and by a judgment dated 23.08.2016, the learned Judicial Magistrate, West Sikkim had

acquitted the petitioner of all the charges and the said judgment also attained its finality in absence of any challenge thereto.

The petitioner had issued a lawyer’s notice dated 17.07.2017, praying for revocation of order of dismissal dated 19.11.2011 and his

reinstatement with full back wages within a period of one month. However, as no action was taken on the said legal notice, the petitioner had

approached this Court by filing this writ petition.

Mr. N. Rai, learned Senior Counsel for the petitioner, submits that the petitioner was not given any opportunity to cross-examine the witnesses and

the enquiry proceeding had proceeded in gross violation of the principles of natural justice. He has submitted that the departmental proceeding was

initiated on the same set of charges which were also part of the criminal trial and the petitioner, having been honourably acquitted by this Court, the

order of dismissal cannot sustain scrutiny of law. It is also contented by him that the respondent authorities could not have taken recourse to provision

of Rule 9(ii) of the Rules while passing the order of dismissal. He has submitted in this context that in order not to continue with the departmental

proceeding, for extraneous consideration, power under Rule 9(ii) of the Rules was exercised, although, in the attending facts and circumstance of the

case, provision of Rule 9(ii) could not have been invoked. He has contended that the petitioner was not given any show cause notice before proposing

to pass the order of dismissal and, therefore, the order of dismissal was violative of Article 311 of the Constitution of India. In support of his

submissions, Mr. Rai has placed reliance on the cases of (i) Khem Chand, Appellant vs. Union of India & Ors., reported in AIR 1958 SC 300; (ii)

Union of India & Ors. vs. Mohd. Ramzan Khan, reported in (1991) 1 SCC 588;

(iii) M/s Dehri Rohtas Light Railway Company Limited vs. District Board, Bhojpur & Ors., reported in (1992) 2 SCC 598; (iv) Capt. M. Paul Anthony

vs. Bharat Gold Mines Ltd. & Anr., reported in (1999) 3 SCC 679; (v) G. M. Tank vs. State of Gujarat & Ors., reported in (2006) 5 SCC 446; (vi)

Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra & Ors., reported in (2013) 4 SCC 465;

(vii) Madhav Chettri vs. The State of Sikkim & Ors., reported in Manu/SI/0064/2015; (viii) Hari Niwas Gupta vs. State of Bihar & Anr., reported in

2019 SCC Online SC 1446 and (ix) In Re: Om Prakash Kapoor and Union of India & Ors. of the High Court of Judicature at Calcutta, reported in

1993 â€" II L.L.N. 812.

Relying on the affidavit filed, Dr. Doma T. Bhutia, learned Additional Advocate General for the respondents, has submitted that though the order of

dismissal was passed way back in the year 2011 and though the criminal appeal itself came to be disposed of in the year 2015, the petitioner had

approached this Court only in the later part of 2018, after almost 7 years from the date of issuance of order of dismissal and, therefore, this petition is

liable to be dismissed on the ground of delay, more particularly, having regard to the fact that the petitioner being a police man is not in service for the

last 10 years. It is contended by her that although Mr. Rai assailed the order of dismissal on the ground that the authorities could not have taken

recourse to dispense with the inquiry in terms of Rule 9(ii) of the Rules, no foundation for articulating such a contention is laid in the writ petition as

well as in the reply affidavit filed. There is not even a whisper in the pleadings to that effect and, therefore, this Court may not go into that aspect of

the matter. It is submitted by her that though initially the petitioner was suspended in view of his being detained for more than 48 hours in terms of

Rule 10(2)(a) of the Rules and subsequently, a disciplinary proceeding was also initiated, due to reasons beyond the control of the authorities, the

disciplinary proceeding had to be aborted and order of dismissal was required to be passed in terms of Rule 9 (ii) of the Rules. She has submitted that

police force, being a disciplined force, police personnel must have impeccable integrity and reputation to inspire confidence of the people. As the

petitioner was not honourably acquitted but was acquitted on benefit of doubt, he is not entitled to reinstatement in service automatically as of right.

The petitioner had never challenged the initiation of departmental proceeding on the ground that on the same set of charges he was also facing

criminal trial and therefore, at this stage, the Court may not go into the question that disciplinary proceeding, in the first place, could not have been

proceeded with. In support of her submissions, learned Additional Advocate General has placed reliance in the cases of (i) P. S. Sadasivaswamy vs.

State of Tamil Nadu, reported in (1975) 1 SCC 152; (ii) Union of India & Anr. vs. Tulsiram Patel, reported in (1985) 3 SCC 398; (iii) Shiba Shankar

Mohapatra & Ors. vs. State of Orissa & Ors., reported in (2010) 12 SCC 471; (iv) Ajit Kumar vs. State of Jharkhand & Ors., reported in (2011) 11

SCC 458; (v) Commissioner of Police, New Delhi & Anr. vs. Mehar Singh, reported in (2013) 7 SCC 685; (vi) Avtar Singh vs. Union of India & Ors.,

reported in (2016) 8 SCC 471; (vii) Union Territory, Chandigarh Administration & Ors. vs. Pradeep Kumar & Anr., reported in (2018) 1 SCC 797 and

(viii) Shashi Bhusan Prasad vs. Inspector General Central Industrial Security Force & Ors., reported in AIR 2019 SC 3586.

I have considered the submissions of the learned Counsel for the parties and have perused the materials on record.

At the very outset, it will be fruitful to take note of the order dated 19.11.2011, which reads as under:-

“Government of Sikkim

OFFICE OF THE SR. SUPERINTENDENT OF POLICE

WEST DISTRICT, GYALSHING.

O.O. No.291/POL/SP/W/R/2009 Dated: 19/11/2011.

ORDER

WHEREAS a Departmental Enquiry under Rule 7 of the Sikkim Police Force (Discipline & Appeal) Rules, 1989 as amended from time to time, was

proposed to be held against Nk/1593 Kharga Bahadur Pradhan of Kaluk Police Station and accordingly the Memorandum dated 08/12/2009 alongwith

the articles of charges, the statement of imputation of misconduct, lists of documents and witnesses were served upon the delinquent, (under judicial

custody), who acknowledged receipt of the same.

(2) Whereas the articles of charges against the delinquent NK/Kharga Bahadur Pradhan framed by the disciplinary authority read as follows:-

“ARTICLE â€" I

Kaluk PS Case No. 09(08)09, dated 08/08/2009 undr section 302/201/IPC was registered and NK/1593 Kharga Bahadur Pradhan, age 44 years, S/o

Dak Man Pradhan, R/o Radhu Khandu, Dentam, West Sikkim posted at Kaluk PS was arrested on 08/08/2009 for committing murder of one lady

Mrs. Aitamati Lepcha, age 35 years, W/o Pemtuk Lepcha, R/o Boom Busty, Kaluk, West Sikkim.

ARTICLE â€" II

Sikkim Police has a duty of wide responsibility to protect innocent men/women from any other threat and difficulties. In spite of doing the prime duty

he is accused of section 302/201/IPC.

ARTICLE â€" III

Due to his suspected behaviour and misconduct he had created bad image to the service of Sikkim Police. A person who is accused of Section

302/201 IPC, his doubtful integrity to the service is in question.

He is therefore, charged with conduct unbecoming of a Government Servantâ€​.

(3) Whereas in response to the above memorandum the delinquent Nk/1593 Kharga Bahadur Pradhan denied the charges in his written statement of

defense and claimed that he was falsely implicated in the criminal case.

(4) Whereas Shri T. D. Kazi, the then SDPO/ Soreng was appointed as the Inquiry Officer to enquire into the charges framed against Nk/Kharga

Bahadur Pradhan.

(5) Whereas the Inquiry Officer submitted his findings on 11/04/2011 followed by supplementary report on 10/11/11 wherein he has held the

delinquent NK/1593 Kharga Bahadur Pradhan guilty of all the charges.

(6) Whereas the Inquiry Officer has indicated in his report that Hon’ble Session Judge, South & West at Namchi denied permission to conduct

departmental proceeding against the delinquent in the District Jail, Namchi vide Order dated 30/08/11 hence the procedures laid down under Rule 7 of

the Sikkim Police Force (Discipline & Appeal) Rules, 1989 could not be followed so far the examination of the delinquent and examination of

witnesses/documents by him are concerned.

(7) Whereas as per Rule 9 (ii) of the Sikkim Police Force (Discipline & Appeal) Rules, 1989 the undersigned is satisfied that it is not reasonably

practicable to hold the enquiry in the manner as provided in the Rules because of the reason as indicated in para 6 above.

(8) Whereas on careful perusal of findings of the Inquiry Officer and the conduct which led to the filing of charge sheet in aforesaid Criminal Case

against the delinquent NK/Kharge Bahadur Pradhan the undersigned has come to the conclusion that retention of NK/1593 Kharga Bahadur Pradhan

in Police Service is detrimental to the morale and over all image of Sikkim Police Force.

(9) Now, therefore, in exercise of the power conferred on the undersigned vide the Sikkim Police Force (Discipline & Appeal) Rules, 1989, as

amended vide Notification No. 81/Gen/DOP dated 23/11/1998, NK/1593 Kharga Bahadur Pradhan of Kaluk Police Station, West District is dismissed

from service with effect from 19/11/2011. NK/1593 Kharga Bahadur Pradhan shall not be entitled to any monitory benefits of service except his GPF.

(10) The receipt of this order should be acknowledged by NK/1593 Kharga Bahadur Pradhan.

Sd/-

(D. G. Giri, IPS)

Sr. Superintendent of Police

West District, Gyalshing.â€​

A perusal of the aforesaid order goes to show that a disciplinary proceeding was initiated under Rule 7 of the Rules by a Memorandum dated

08.01.2009 and the Inquiry Authority had submitted a Report dated 11.04.2011 to the Disciplinary Authority, holding the charges to be proved.

However, the Disciplinary Authority, on consideration of materials on record, noticing that due and fair opportunity was not afforded to the writ

petitioner, had remanded the matter back to the Inquiry Authority to conduct the inquiry in accordance with law after fully complying with principles of

natural justice. The petitioner was, at the relevant time, lodged in Namchi Jail and, therefore, an application was filed before the learned Sessions

Judge, South & West at Namchi, who was holding trial, to permit the authorities to hold departmental enquiry at District Jail premises at Namchi.

However, the learned trial Court, by an order dated 30.08.2011, had rejected the said petition. It was in that circumstance, the Disciplinary Authority

being satisfied that it is not reasonably practicable to hold an enquiry in the manner as provided under the Rules and opining that retention of the

petitioner in police service was detrimental to the morale and over all image of Sikkim Police Force, had issued the order of dismissal dated

19.11.2011.

Thus, it is evident that the order of dismissal was not passed by following the procedure laid down under Rule 7, but was passed by taking

recourse to Rule 9(ii) of the Rules. Therefore, the contention advanced by Mr. Rai with regard to violation of principle of natural justice in the course

of the inquiry proceeding is misconceived. True, an Inquiry report was submitted by the Inquiry Officer but the disciplinary authority itself had not

acted upon such Inquiry Report in view of violation of principles of natural justice during the Inquiry.

Rule 3 of the Rules provides that penalties, as indicated in clauses (i) to (xv), may, for good and sufficient reasons, be imposed on any police

officer. Rule 5 provides that disciplinary authority may impose on a police officer of the rank of Head Constable and below any of the penalties

specified in clauses (i) to (iii) of Rules summarily. The procedure for imposing penalties specified in clauses (iv) to (x) of Rule 3 is prescribed in Rule

Procedure for imposing penalties specified in clauses (xi) to (xv) of Rule 3 is prescribed in Rule 7. Clause (xv) is dismissal from service which shall

ordinarily be a disqualification for future employment under the Government.

Rule 7 (1) provides that no order imposing any of the penalties specified in clauses (xi) to (xv) of Rule 3 shall be made except after an inquiry held,

as far as may be, in the manner provided in the Rules. Rule 8 provides that where two or more police officers are concerned in any case, the

Governor or any other disciplinary authority may make an order directing that disciplinary action against all of them may be taken in a common

proceeding.

Rule 9 is an exception to the normal rule of holding an inquiry and it reads as under: -

“9. Special procedure in certain cases.- Notwithstanding anything contained in rules 6, 7 and 8 â€

(i) where any penalty is imposed on police Officer on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the

manner provided in these rules, or

(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in

these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon it deems fit.

Provided that the Commission shall be consulted where such consultation is necessary before any order is made in any case under this rule.â€​

In paragraphs 11 and 12 of the writ petition, the petitioner stated as follows:-

“11. That the order of termination dated 19.11.2011 (Annexure â€" 4) do not have legal force now in view of the following:

(a) The termination order was passed ex-parte.

(b) The Petitioner was not given an opportunity to examine the witnesses and the documents concerned.

(c) The Petitioner is not aware as to what evidences were considered by the inquiring authority.

(d) The Petitioner is also not aware as to whether the inquiry authority examined any witness or not.

(e) The Petitioner is deprived of any hearing thereby violating the principle of audi alterem partem.

That the Petitioner has been illegally terminated on the basis of the said illegal, false and make belief departmental inquiry.â€​

In the ground (d), it is urged that the petitioner has been illegally terminated and removed from his service and in ground (f), it is contended that no

valid grounds have been given by the respondents for termination and removal of the petitioner from his service. In the rejoinder affidavit filed by the

petitioner, at paragraph 16, it is stated that principles of natural justice was grossly violated while dismissing the petitioner from service without giving

him any chance of hearing.

A perusal of the pleadings in the writ petition as well as rejoinder affidavit persuades me to observe that Dr. Bhutia was right in submitting that no

specific challenge was mounted with regard to the order of dismissal dated 19.11.2011 on the touchstone of exercise of power under Rule 9(ii) of the

Rules. There is no challenge on the ground that the satisfaction derived by the disciplinary authority cannot receive judicial imprimatur or that the same

has been passed malafide or in extraneous or irrelevant consideration. The thrust in the writ petition as well as the rejoinder affidavit is that since the

petitioner had been honourably acquitted by this Court of the charge under Section 302 of the IPC and the order of dismissal has a relation to the

criminal case against the petitioner, the order of dismissal, because of turn of events, cannot be sustained in law.

Rule 9 (ii) of the Rules is somewhat similar to Article 311 (2)(b) of the Constitution. Article 311(2) provides that no person as specified in Article

311(1) shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a

reasonable opportunity of being heard in respect of those charges. Proviso to Article 311(2) states that where it is proposed after such inquiry, to

impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be

necessary to give such person any opportunity of making representation on the penalty proposed. Article 311(2)(b) provides that Article 311(2) shall

not apply where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by

that authority in writing, it is not reasonably practicable to hold such inquiry. Article 311(2)(a), (b) and (c) are exceptions to the general rule of holding

an inquiry as Article 311(2) is not made applicable to Article 311(2)(a), (b) and (c).

In Khem Chand (supra), the Hon’ble Supreme Court had held that as no show cause notice was issued to the appellant affording an

opportunity to him to show cause as to why the particular punishment should not be inflicted on him, the same was in violation of Article 311 (2) of the

Constitution of India and that being the position, his dismissal from service could not be sustained. Relying on the judgment, Mr. Rai had submitted that

impugned dismissal order is bad in law because of denial of opportunity to show cause against the proposed punishment. It is to be noticed that when

Khem Chand (supra) was decided, there was a requirement in Article 311(2) to afford an opportunity to the delinquent to show cause against the

proposed punishment. However, by the Constitution (Forty-second Amendment) Act, 1976, Article 311(2) was amended w.e.f. January 3, 1977 and

the aforesaid provision which formed the basis in Khem Chand (supra) is no longer there.

In Tulsiram Patel (supra), the Hon’ble Supreme Court has held that the phrase “this clause shall not apply†in the second proviso to

Article 311(2) is mandatory and, therefore, there is no scope for introducing into the second proviso some kind of inquiry or opportunity by a process

of inference or implication. The second proviso has been inserted in the Constitution as a matter of public policy and public interest. The argument that

in a case falling under clause (b) or (c), a government servant ought to be placed under suspension until the situation improves or the danger to the

security of the State has passed, as the case may be, and it becomes possible to hold an inquiry, was repelled.

In Ajit Kumar (Supra), the Hon’ble Supreme Court had observed that power under clause (a), (b), (c) of Article 311(2) is an absolute power

of the disciplinary authority, who, after following the procedure laid down therein, can resort to such extra-ordinary power provided it follows the pre-

conditions laid down therein meaningfully and effectively. In Hari Niwas Gupta (supra), the Hon’ble Supreme Court has reiterated that the

obligation of the competent authority to record reasons when passing an order under clause (b) to the second proviso to Article 311(2) is mandatory.

In Mohd. Ramzan Khan (Supra), the Hon’ble Supreme Court held that wherever an Inquiry Officer has furnished a report to the disciplinary

authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not,

the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the

report would amount to violation of rules of natural justice and make the final order liable to challenge. However, the ratio laid down will have no

application in the instant case.

In Capt. M. Paul Anthony (supra), the question that had fallen for consideration before the Hon’ble Supreme Court was as to whether

departmental proceeding and proceeding in a criminal case launched on the basis of the same set of facts can be continued simultaneously. The

Hon’ble Supreme Court, at paragraph 22, has held as follows:-

“22. The conclusions which are deducible from various decisions of this Court referred to above are:

(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted

simultaneously, though separately.

(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the

delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental

proceedings till the conclusion of the criminal case.

(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will

depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him

during investigation or as reflected in the charge-sheet.

(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given

to the fact that the departmental proceedings cannot be unduly delayed.

(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of

the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not

guilty his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest.â€​

In G. M. Tank (supra), the Hon’ble Supreme Court has held that the departmental proceedings and the criminal case are based on identical

and similar set of facts and the charge in the department’s case against the appellant and the charge before the criminal court are also one and the

same. It was observed that the nature of the case launched against the appellant on the basis of evidence and material collected against him during

enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. It was in the aforesaid background when the

criminal court came to the conclusion that the prosecution had not proved the guilt alleged against the petitioner beyond any reasonable doubt and

acquitted the appellant, it was held that it would be unjust, unfair and oppressive to allow the findings recorded in the departmental proceedings to

stand.

The petitioner had never challenged drawing up of disciplinary proceeding on any ground including on the ground that the proceeding could not

have been initiated because charges in the disciplinary proceeding are same as in the criminal proceeding. That apart, the order of dismissal, as noted

earlier, was passed dispensing with inquiry by taking recourse to Rule 9 (ii) of the Rules and therefore, decisions in the cases of Capt. M. Paul

Anthony (supra) and G. M. Tank (supra) will not have much relevance in the facts of the present case. So also the decision in Ayaaubkhan Noorkhan

Pathan (supra), where the Hon’ble Supreme Court had observed that right of cross-examination is an integral part of principles of natural justice.

In Om Prakash Kapoor (supra), issue pertained to continuance of a suspension order after acquittal of the employee concerned and the decision

rendered in the aforesaid context is not applicable in the instant case as the petitioner had been dismissed from service.

In Mehar Singh (Supra), the Hon’ble Supreme Court had observed that police force is a disciplined force and as people repose great faith and

confidence in it, it must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have

impeccable character and integrity. A person having criminal antecedents will not fit in that category. Even if he is acquitted or discharged in the

criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even

a possibility of his taking to the life of crimes poses a threat to the discipline of the police force.

In Avtar Singh (supra), the Hon’ble Supreme Court, at paragraphs 38.4.3 had noted that if acquittal had already been recorded in a case of

moral turpitude or offence of heinous/serious nature on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been

given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the

employee.

In Sashi Bhusan Prasad (supra), the Hon’ble Supreme Court had laid down that acquittal by the court of competent jurisdiction in judicial

proceedings does not ipso facto absolve the delinquent from the liability under the disciplinary jurisdiction of the authority.

In Pradeep Kumar (Supra), it is held that if a person is acquitted or discharged, it cannot be always inferred that he is falsely implicated or he has

no criminal antecedents. It was further observed that unless it was an honourable acquittal, the candidate cannot claim the benefit of the case. The

Hon’ble Supreme Court referred to the decision rendered in the case of Inspector General of Police vs. S. Samuthiram, reported in (2013) 1 SCC

598, to explain what honourable acquittal means. In parapgraph 24 of S. Samuthiram, the Supreme Court had observed as follows:-

The meaning of the expression “honourable acquittal†came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that

case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In

that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be

honourable. The expressions “honourable acquittalâ€, “acquitted of blameâ€, “fully exonerated†are unknown to the Code of Criminal

Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression

“honourably acquittedâ€. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably

failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.â€​

A perusal of the above paragraph goes to show that in absence of any definition in the Criminal Procedure Code or Indian Penal Code, it is

difficult to give a precise definition of what is meant by the expression “honourably acquittedâ€, an expression coined by judicial pronouncements.

The Hon’ble Supreme Court observed that when the accused is acquitted after full consideration of prosecution evidence holding that the

prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

In Madhav Chettri (supra), a show-cause notice was issued to the appellant to show cause as to why he should not be discharged from service in

terms of Rule 7(a)(ii) of the Sikkim Government Establishment Rules, 1974, as he was arrested in connection with a case under Section 457/380 of the

IPC. A reply to show cause was given on 27.11.2013 and, thereafter, the petitioner was discharged from service vide order dated 03.12.2013. A writ

petition was filed immediately seeking to quash the order of discharge. This Court had quashed the discharge order on the ground that that the charge

in the departmental case against the appellant and the charge before the criminal court being one and the same, the impugned action ought not to have

been initiated against the appellant.

In M/s. Dehri Rohtas Light Railway Company Ltd. (supra), the Hon’ble Supreme Court had observed that the rule which says that the Court

may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion and that each

case must depend upon its own facts. It was further held that the principle on which the relief to the party on the grounds of laches or delay is denied

is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a

reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel

right is created and that the lapse of time is not attributable to any laches or negligence. In P. S. Sadasivaswamy (supra), it was observed that though

there is no period of limitation for the courts to exercise their powers under Article 226 of the Constitution of India, it would be a sound and wise

exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it

expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled

matters. In the context of promotion, the Hon’ble Supreme Court had observed that against an order of promotion one should approach the Court

at least within six months or at the most a year of such promotion. In Shiba Shanker Mohapatra (supra), the Hon’ble Supreme Court had observed

that seniority dispute should not be entertained once the seniority has been fixed and it has remained in existence for a reasonable period. It was also

observed that no party can claim a relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty

of delay and laches.

In State of Jammu and Kashmir vs. R.K Zalpuri, reported in AIR 2016 SC 3006, the Supreme Court had observed that writ court is required to

remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner and that stale claims are not to be adjudicated unless

non-interference would cause grave injustice. The facts of the case before the Hon’ble Supreme Court go to show that the employee was

dismissed from service in the year 1999 and he did not choose to avail any departmental remedy and approached the High Court after a lapse of five

years. In the aforesaid background, the Supreme Court had declined to consider the grievance agitated by the employee on merits on the ground that

there was delay and laches in approaching the court.

A perusal of the judgment of this Court dated 30.03.2015 passed in Crl. A. No.12 of 2014 goes to show that the prosecution case was based on

circumstantial evidence. This court observed that the deceased was allegedly in the company of the petitioner on 03.08.2009 and her dead body was

found in an abandoned condition in a jungle on 06.08.2009 and thus, the circumstance of last seen together was not fully established. It was also

observed that even if it is accepted as held by the learned Session Judge that there was illicit relationship between the petitioner and the deceased, in

absence of any other positive reasons, one cannot be said to have motive to commit murder of the other. Observing that it was a case in which nothing

was conclusively established against the appellant, this court held that the appellant was entitled to benefit of doubt and accordingly, had allowed the

appeal. Thus, such an acquittal does not come within the expression “honourably acquittedâ€​ as expounded by the Hon’ble Supreme Court.

The petitioner has filed this writ petition after almost 7 years of passing of the order of dismissal dated 19.11.2011 and after about 3 years 6

months from passing of the judgment passed in Crl. A. No.12 of 2014. There is no explanation whatsoever for such gross delay. In that view of the

matter, having regard to the facts and circumstances of the case, I am of the considered opinion that this is not a fit case for examination on merits the

legality or validity of the order dated 19.11.2011 in exercise of powers under Article 226 of the Constitution of India.

Resultantly, the writ petition is dismissed. No costs.