http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  4493 of 2007

PETITIONER: Bera

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 24/09/2007

BENCH: S.B. SINHA & H.S. BEDI

JUDGMENT: JUDGMENT

CIVIL APPEAL NO.4493 /2007 (Arising out of SLP(C) No.2480/2007)

S.B.SINHA,J.

               Leave granted.         (1)     Appellant herein was appointed as a Constable in the Central  Reserve Police Force. He allegedly proceeded on medical leave on 17.2.1992. He  reported for duty on 1.4.1992. He was found medically fit and declared as such on  6.4.1992. He again applied for medical leave and without such leave being sanctioned  he unauthorisedly left his place of posting on 9.4.1992. He remained unauthorisedly  absent for a period of 67 days. He returned back to his duty only on 12.7.1992. On the  charges of having remained unauthorisedly absent, he was sentenced to seven days  confinement to Civil Lines. As against the said order, he made a representation. The  said representation, however, was not routed through proper channel,whereupon a  proceeding was again initiated against him. He was directed to be confined for  ten  days in the Civil Lines and on the premise that he refused to comply with the  requirements of such confinement to Civil Lines, another disciplinary proceeding was   initiated against him. In the said  proceedings the charges against him were held to be  partially proved. He was dismissed from service but then another disciplinary  proceeding was directed to be initiated.         (2)  The order of dismissal was passed in the year 1994. He preferred an  appeal thereagainst. The appeal filed by him was also dismissed on 5.4.1995.          (3)  He filed a writ petition before the Calcutta High Court questioning the  said order of dismissal in the year 1997 which was marked as W.P. 85/1997. On the  premise that the said writ petition was filed after a lapse of two years, a learned Single  Judge of the High Court refused to exercise his discretionary jurisdiction under  Article 226 of the Constitution of India. Aggrieved by and dis-satisfied therewith an  intra Court appeal was preferred thereagainst. By reason of the impugned judgment  dated 9.11.2006,the said appeal has also been  dismissed stating:         "..The appeal was dismissed on 5.4.95 but the writ petition was filed on  9.5.97. Within the four corners of the writ petition the writ petitioner/appellant has  not assigned any reason for this long delay for moving this Court in writ jurisdiction.

       In the case report in (2006) 4 Supreme Court at page 322 it has been laid  down that the delay or laches is one of the factors which is to be borne in mind by the  High Court when they exercise their discretionary powers under Article 226 of the  Constitution. In an appropriate case the High Court may refuse to invoke its  extraordinary powers if there is such negligence or omission on the part of the  applicant to assert his right as taken in conjunction with the lapse of time and other  circumstances causes prejudice to the opposite party.

       In this case the writ petitioner/appellant has prayed for invoking the power  of the Court in writ jurisdiction after unexplained delay of a number of years. He by  his conduct had accepted the punishment inflicted upon him. The chapter was closed.  Now again after long lapse of a number of years the said closed chapter cannot be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

reopened. Thus, the learned Single Judge was perfectly justified in dismissing  the  writ petition on the ground of inordinate delay."          Appellant is thus before us.         (4)  Learned counsel appearing on behalf of the appellant in support of his  appeal submitted that the High Court in a situation of this nature should not have  refused to entertain the writ petition as also the Letters Patent Appeal preferred by  the appellant herein only on the ground of delay and laches as a result whereof  manifest injustice has been caused to him. Learned counsel would point out that in  terms of Rule 27 of the Central Reserve Police Force Rules, the respondent could not  have initiated a second inquiry after having found that the charges have been  partially proved in the first inquiry. It was, furthermore, contented that in the  Central Reserve Police Force Act and the Rules framed thereunder, there does not  exist any provision for imposition of punishment of  confinement to Civil Lines which  was applicable only to the persons governed by the Army Act.         (5)  The question as to whether a punishment of confinement to Civil Lines  could have been directed or not should not detain us as we agree with the contention  raised by learned counsel for the appellant that the purported order  dated 5.4.1995 of  the disciplinary authority was unsustainable in law. Rule 27 of the Central Reserve  Police Force Rules 1955 , inter alia, lays down the procedure for conducting a  departmental inquiry. Once a disciplinary proceeding has been initiated, the same  must be brought to its logical end meaning thereby a finding is required to be arrived  at  as to whether the delinquent officer is guilty of charges levelled against him or not.  In a given situation further evidences may be directed to be adduced but the same  would not mean that despite holding a delinquent officer to be partially guilty of the  charges levelled against him another inquiry would be directed to be initiated on the   self same charges which could not be proved in the first inquiry.         (6)  In K.R.Deb Vs. The Collector of Central Excise,Shillong \026 1971(2) SCC  102, this Court  while considering the provisions contained in Rule 15(1) of the  Central Civil Services (Classification, Control and Appeal) Rules, 1957 held as under:         " 12. It seems to us that Rule 15, on the face of it, really provides for one  inquiry but it may be possible if in  a particular case there has been no proper  enquiry because some serious defect has crept into the inquiry or some important  witnesses were not available at the time of the inquiry or were not examined for some  other reason, the Disciplinary Authority may ask the Inquiry Officer to record further  evidence. But there is no provision in Rule 15 for completely setting aside previous  inquiries on the ground that the report of the Inquiring Officer or Officers does not  appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers  to reconsider the evidence itself and come to its own conclusion under Rule 9.

       13. In our view the rules do not contemplate an action such as was taken by  the Collector on February 13, 1962. It seems to us that the Collector, instead of taking  responsibility himself, was determined to get some officer to report against the  appellant. The procedure adopted was not only not warranted by the rules but was  harassing to the appellant".         (7) The next question which arises for our consideration is as to whether we  would follow the normal rule, namely, set aside the impugned judgment and remit the  matter back to the High Court or deal with the matter ourselves. One other option  which is available to us was to set aside the punishment recorded by the disciplinary  authority and request the High Court to consider the matter afresh on the basis of the  materials brought on record in the disciplinary proceedings.         (8)  Fifteen years, however, in the meantime have elapsed. Ordinarily,  although, we would not interfere with the quantum of punishment but keeping in  view the fact that the disciplinary authority must be held to have misdirected itself by  not complying with Rule 27 of the Central Reserve Police Force Rules stricto sensu  and having directed a further inquiry after ordering for the  dismissal of services of  the appellant, we are of the opinion that in the peculiar facts and circumstances of  this case which may not be treated to be a precedent, we shall  pass an appropriate  order in exercise of our discretionary jurisdiction under Article 142 of the  Constitution of India.           (9)  In our view in terms of the foregoing reasons and  on the finding  aforementioned, the appellant  should be directed to be reinstated in service. The  question, however, remains as to whether he should be granted back wages. We think  not.             (10) Learned counsel vehemently submits that in a situation of this nature,  where the  illegality committed by the disciplinary authority is apparent on its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

face,the appellant should not be denied back wages.          (11)  It is now a trite law that back wages cannot be directed to be granted  automatically. Several factors are required to be taken into consideration therefor.  Furthermore, we have not and could not have gone into the question as to whether  the appellant in fact has committed any misconduct or not as we are inclined to set  aside the impugned order of punishment only on technicality.         (12)  The misconduct is alleged to have committed in the year 1992. He,  admittedly, did not approach the High Court within a reasonable time. The High  Court had refused to exercise its power of judicial review having regard to delay and  laches on the part of the appellant.         (13)  Having regard to the said fact, we are of the opinion that interest of  justice would be subserved if the appellant is denied the back wages for the said  period. He, however, should be reinstated in service and  be given all other  consequential benefits.         (14)  The appeal is allowed to the aforementioned extent. In the facts and  circumstances of this case, however, there shall be no order as to costs.