ROHTASH KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) Present petition has been filed under Article 226/227 of the Constitution of India for issuance of a writ in the nature of certiorari to quash the impugned report of departmental enquiry dtd. 20/1/2012 (Annexure P-2) as well as the impugned order dtd. 18/5/2012 (Annexure P-5) whereby the petitioner was dismissed from the post of Constable. Challenge is also to the order dtd. 6/8/2012 (Annexure P6) passed by respondent No.3 whereby appeal of the petitioner against the punishment of dismissal from service has been rejected and also to order dtd. 10/7/2014 (Annexure P-7) whereby respondent No.2 partly accepted the revision petition filed by the petitioner by reducing the punishment of dismissal to the stoppage of two annual increments with permanent effect.

(2.) Brief facts of the present case are that the petitioner was selected as a Constable on regular basis in the staff of Pipe Band of the respondents and while working on the said post, the petitioner was suspended and a charge-sheet dtd. 29/12/2011 (Annexure P-1) was issued to the petitioner on the charges that he was deputed to participate in the 12th All Indian Pipe Band Competition with the band team of 2nd Battalion on 19/12/2011 at the Group Centre of the Central Reserve Police Force, Kadipur, Gurugram and during the said competition, when Inspector Ajit Singh, Team Manager of Haryana Police Band inspected the uniforms of the Band Team Soldiers, he found that the petitioner was not wearing a clean and formal uniform nor were his shoes polished and although he was duty bound to carry the flag in front of Band Team, the petitioner threw the flag and went away. The petitioner was accordingly suspended and the departmental proceedings were initiated against the petitioner on the said charges and the inquiry officer was appointed. The inquiry officer, vide report dtd. 20/1/2012 (Annexure P-2), found that the petitioner was guilty of the charges framed against him and found that the petitioner was not wearing the uniform as per the pattern, did not polish his shoes, threw the flag and left on the date of the competition. A perusal of the said report shows that as many as 7 prosecution witnesses were examined by the department and due opportunity was given to the petitioner to lead his defence and the petitioner had also examined two witnesses in his defence. Vide a show cause notice dtd. 30/1/2012 (Annexure P-3), the competent authority had proposed to pass the punishment of dismissal and the petitioner was granted an opportunity to file a reply, within 15 days of receipt of the said notice. The petitioner filed a reply (Annexure P-4) and the Commandant, 2nd Bn. Haryana Armed Police, Madhuban (Karnal), who was the competent authority, vide order dtd. 18/5/2012 (Annexure P-5), after considering all the facts and circumstances, passed an order of dismissal from service with immediate effect. A perusal of the said order would show that an opportunity of personal hearing was given to the petitioner on 16/5/2012 and it was observed that the petitioner had not given a satisfactory reply to the allegations levelled against him. The petitioner filed an appeal, which was dismissed by the Inspector General, Haryana Armed Police, Madhuban on 6/8/2012 (Annexure P-6) and in the said order, it was observed that the departmental proceedings were conducted as per prescribed procedure laid down in the Punjab Police Rules and there was no illegality or infirmity in the departmental proceedings and the petitioner was personally heard on 24/7/2012 and he could not add anything new to the written submissions already made. It was further observed that on the occasion of a National level event, not wearing the proper and clean uniform, throwing the State Police flag on the ground and leaving the mega function at his will was an act of grave misconduct and negligence on his part. It was further observed that the petitioner was a habitual offender of absenteeism and was irresponsible. The petitioner filed a revision petition before the Director General of Police, Haryana. The Director General of Police, Haryana, vide order dtd. 10/7/2014 (Annexure P-7) had taken a lenient view and reduced the punishment of dismissal to that of stoppage of two annual increments with permanent effect and he was ordered to be reinstated in service with immediate effect, but was not to be paid anything for the period he remained out of service on the principle of 'no work no pay'. A perusal of the said order would show that the Director General of Police, Haryana had come to the conclusion that the charges against the petitioner were proved during the course of enquiry and due opportunity was also given to the petitioner, but by taking a lenient view, the said order was passed. Although, it is the case of the petitioner that a mercy petition (Annexure P-8) to the Additional Chief Secretary, Govt. of Haryana, Home Department, Chandigarh had been filed, but neither any date has been mentioned in the said mercy petition, nor any such date has been mentioned in the present petition. Upon query raised by this Court, learned counsel for the petitioner has submitted that the same was filed in the year 2018, but he has not been able to refer any provision of law under which the said mercy petition is maintainable.

(3.) A perusal of the admitted facts would show that the present petition has been filed after a delay of more than 9 years and 7 months after the passing of the order dtd. 10/7/2014 (Annexure P-7). The mercy petition (Annexure P-8) is not shown to be maintainable under any provision of law and no date of the said mercy petition has been mentioned either in the mercy petition or in the writ petition, but even in case the date of the said mercy petition is taken to be in the year 2018, then also, there is a delay of more than 4 years in filing of the said mercy petition and a further delay of more than 5 years in filing of the present petition even from the said mercy petition. The arguments raised by the petitioner to explain the delay is that the petitioner has a recurring cause of action inasmuch as in case the impugned orders are set aside and the punishment of stoppage of two annual increments with permanent effect is set aside, then his monthly salary/benefits would increase. The second argument to explain delay is filing of the mercy petition