Prabhat Kumar Sinha vs The State of Tripura and Others

By means of this writ petition, the petitioner has challenged the order of discharge under No. 218/TSR-3/ESTT/DP/2003/3522-25 dated 31.05.2003, Annexure P/10 to the writ petition, passed by the Commandant 3rd Bn. TSR and the order dated 27.09.2010, passed by the Deputy Inspector General of Police (AP & OPS) Tripura, Annexure P/13 to the writ petition. The petitioner has further urged for a direction to reinstate him in service with effect from 31.05.2003.

While serving as the Rifleman under 3rd Bn. TSR, the departmental action against the petitioner was initiated under Rule 40 of Tripura State Rifles (Discipline, Control, Service Conditions, etc.) Rules, 1986 for overstaying the leave despite direction to report Battalion H.Q. forthwith couched with caution that failing which the disciplinary action would be taken against him as per the TSR Act and Rules by the communication dated 20.08.2002, Annexure P/6 to the writ petition. The petitioner did not report to duty. Even thereafter, the Commandant had communicated by another letter dated 10.11.2002, Annexure P/8 to the writ petition asking the petitioner to report the Battalion H.Q. within 15 days from the date of issue of that letter with further caution that otherwise strict disciplinary action would be taken against him as per TSR Act and Rules. The petitioner did not report to the duty and simply ignored such direction. As a result an inquiry under Rule 14(2) of CCS (CCA) Rules, 1965 read with Rule 40 of TSR (DCSC etc.) Rules, 1986 was instituted to inquire into the charges framed against him by the office memorandum No. 218/TSR-3/ESTT/2003/1442 dated 09.04.2003 for desertion and/or overstaying the leave. The petitioner did not participate in the said proceeding at all. On serving the due notices, the enquiry officer namely Sri K.B. Das, Asstt. Commandant(Adjutant) 3rd Bn. TSR proceeded with the inquiry and returned his findings on 20.05.2003, holding that the petitioner has deserted the rifles and as such he is liable to punishment under Section 10(f) and Section 11(m) of the TSR Act, 1983.

The Commandant, 3rd Bn. TSR, the respondent No. 4, having agreed with the finding of the enquiry officer discharged the petitioner from service by the order dated 31.05.2003, on treating the period of absence from 23.07.2002 to 31.05.2003, including three days casual leave which was sanctioned duly, total 313 days as Dies Non meaning that the petitioner would not be entitled to any pay and allowances for that period. Though the said order dated 31.05.2003, was served to the petitioner, the petitioner did not react immediately. Long thereafter, he fled one representation to the Director General of Police on 23.10.2008. The said representation was treated as the appeal. The Deputy Inspector General of Police (AP & OPS) Tripura, the respondent No. 3, as the appellate authority dismissed the said appeal observing that the foal order dated 31.05.2003 was duly served. But the petitioner did not file any appeal in terms of the procedure as provided under Rule 46(3) of TSR (DCSC etc.) Rules, 1986 within 30 days. Unless the appeal is preferred within 30 days from the date on which a copy of the order appealed against is delivered to the appellant, the appellate authority may however entertain an appeal after expiry of that period, if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.

In the said representation which has been treated as the appeal the petitioner has not assigned any cause, to say least of sufficient cause, for condoning such inordinate delay. In the result, the appellate authority while dismissing the said appeal by the order dated 27.09.2010, has observed as under:

"5. It is evident on records that there is inordinate delay of more than 05 (five) years between the date of final order (and the date of delivery of the order appealed against) i.e. 31.05.2003 and the date of appeal i.e. 23.08.2010. The undersigned as appellate authority has no scope in the instant case to entertain the appeal as the appeal is time barred due to such inordinate delay in fling the appeal. Thus, I Shri T.B. Roy, IPS, Dy. IG of Police (AP & OPs) being the appellate authority, hereby reject the appeal petition of No. 98031334 Ex-Rfn Prabhat Kr. Sinha and the appeal petition is disposed. "

The petitioner has challenged both the order dated 31.05.2003 and 27.09.2010 respectively passed by the disciplinary authority and the appellate authority in this writ petition.

Mr. A. Bhowmik, learned counsel appearing for the petitioner has submitted that the petitioner''s absence from the duty as stated was wholly unintentional inasmuch as the petitioner was prevented by his illness and illness of his sister who was suffering from terminal illness. In support of such contention, medical certificates had also been produced, the last medical certificate that the petitioner had submitted was issued on 12.08.2002. Those medical certificates were issued by the competent medical practitioners.

Mr. Bhowmik, learned counsel while dilating further has submitted that since the petitioner''s elder sister was suffering from cancer, he was engrossed in her treatment. Initially the petitioner was sanctioned three days casual leave from 23.07.2002 to 25.07.2002. The petitioner was absent from the duty from 28.07.2002 for his scalp injury. During that time, the petitioner''s wife had informed the Commandant, 3rd Bn. TSR for extending leave on medical ground. The petitioner had applied for leave on medical ground for the period from 12.08.2002 to 31.08.2002 but the petitioner was not allowed leave beyond 25.07.2002. Neither the petitioner did join his duty. Mr. Bhowmik has candidly admitted that there is no record to show that there was any further prayer for extension of leave. It has been claimed by the petitioner that on 21.12.2002, one Dhananjoy Singh for his behalf informed the Officer in charge Dhamcherra Police Station that the petitioner at that point of time was residing at Halahali. The petitioner has categorically admitted that he received the notices dated 20.08.2002, and 10.11.2002, even the notice dated 8/9.4.2003 in respect of the inquiry against the petitioner on the ground of his desertion/unauthorised absence etc. The petitioner even received the letter dated 30.04.2003 whereby he was asked to appear before the enquiry officer on 10.05.2003 for recording the preliminary statement. The petitioner received the notice dated 24.05.2003 asking him to appear before the enquiry officer on 28.05.2003 which day was fixed for recording deposition in the said disciplinary proceeding. The petitioner has nowhere stated that he had made any communication to the enquiry officer or to the disciplinary authority expressing difficulty or any reservation. He was not responsive at all. The petitioner did not participate in the disciplinary proceeding and on culmination of the inquiry proceeding, by the impugned order dated 31.05.2003, the petitioner has been discharged from the service as deserter.

Mr. Bhowmik, learned counsel has finally submitted that discharge is not a punishment prescribed either under the CCS (CCA) Rules, 1965 or under the Tripura State Rifles Act, 1983 or under the TSR (DCSC etc.) Rules, 1986. Mr. Bhowmik has raised a unique question that all facts relevant for the proceeding were not placed before the appellate authority for affording an opportunity of taking a decision whether the delinquent member of the Rifles is to be tried by a Rifles Court or is to be dealt with departmentally, in view of Rule 36 of the TSR (DCSC etc.) Rules, 1986.

In view of the order dated 31.05.2003, the petitioner has admitted that his name has been struck of from the roll. The petitioner has revealed that the petitioner got a radio message on 7.04.2010 for receiving GPG/GIS final withdrawal. Then he made an application to the Chief Minister, Tripura and within few days therefrom, to the Director General of Police, Government of Tripura as stated.

Ms. A.S. Lodh, learned Addl. G.A. appearing for the respondents has emphatically stated that the petitioner had been provided all reasonable opportunities for his defence but he preferred not to participate in the proceeding. Ms. Lodh, learned Addl. G.A. has further submitted that the petitioner failed to lay sufficient cause for condoning the inordinate delay. The petitioner having known of the consequence of unauthorised absence from the rifles had laid back, even he did not respond to the notices asking him to report to the duties, even no communication was made. His unauthorised absence is manifestly deliberate, highly prejudicial to the discipline of the force and has rightly been held as desertion. The appellate authority by not condoning the delay of seven years did not commit any illegality.

In response to the question as raised by Mr. Bhowmik, learned counsel appearing for the petitioner that before launching the disciplinary proceeding the appellate authority was not approached to decide the option whether the delinquent member of the Rifles is to be tried by a Rifles court or is to be dealt with departmentally in terms of Rule 36 of the TSR (DCSC etc.) Rules, 1986, has submitted that the Rifles courts have not been constituted in terms of Section 18A of the TSR Act, 1983. Hence, compliance of the provisions of Rule 36 of the TSR (DCSC etc.) Rules, 1986 is redundant.

Having appreciated the submissions, we are of the view that the writ petition is fatally hit by delay and laches inasmuch as the final order was passed on 31.05.2003 and the appellate order was passed on 27.09.2010 whereas the writ petition has been fled on 22.01.2013. No reasonable cause or explanation has been shown for such inordinate delay nor the petitioner could demonstrate continuity of cause of action. The apex court in Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T. Murali Babu reported in , (2014) 4 SCC 108 has enunciated the law unequivocally as under:

"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis".

As we are not persuaded in the circumstances to direct our consideration to the merit of the writ petition, this writ petition is dismissed on the ground of delay and laches. After passing of the final order dated 31.05.2003, the petitioner''s name has been struck of from the roll. Even no case has been made out, we are constrained to observe, to reinstitute the position as existed on 31.05.2003.

There shall be no order as to costs.