R.S. Bindra, J.
1. By his order dated 28-3-67 Shri R. Natarajan, Deputy Commissioner, Mizo District, Mizoram, dismissed the writ petitioner Sri Ngunhulha when the latter was holding the post of headmaster of the Government Middle English School at Tawipui. The petitioner now challenges the validity and constitutional vires of that order.
2. On 28th February, 1966, a widespread armed rebellion broke out in the Mizo District of Assam State. It was led by a political party called Mizo National Front (hereinafer called the Front). On 1st March, 1966, that party issued a proclamation styled 'Independence Bill' declaring the Mizo District to be a sovereign Independent Republic called Mizo ram and pledging to achieve that end by armed revolt. To meet the situation the Central Government issued a notification on 6th March, 1966, directing that Rule 32 of the Defence of India Rules, 1962, shall be applicable to the Mizo National Front. The Superintendent of Police, Delhi Special Branch, Mizo Hills, Aijal, submitted a report, dated 10-3-1967 to the Deputy Commissioner, Mizoram, stating inter alia that the present petitioner Ngunhulha had joined the Front and that he was one of its senators and also a signatory of the so-called Independence Bill. Probably on the authority of that report the Deputy Commissioner, Mizoram, initiated departmental proceedings on 17-3-67 against the present petitioner in terms of the Assam Services (Discipline and Appeal) Rules, 1964, briefly called the Rules hereafter. The articles of charge included inter alia that the petitioner had joined the Front and had thereby violated Rule 21 of the Assam Government Servants Conduct Rules, 1937, that he had been guilty of gross and deliberate misbehaviour and was acting against the interests of the country in continuing to be a member of the Front, that he had taken employment under the Front and accepted office in its set up as Assistant Collector of Taxes and that he had absented himself from duty since 28-2-66 without having taken permission of or leave from the competent authority. It was also mentioned in the articles of charge that the petitioner had deserted his post of duty and that he had been guilty of gross misbehaviour for having not reported for duty. A copy each of the notice issued to the petitioner was forwarded to the Nazir for publication on the notice board of the Deputy Commissioner's office and the Assistant Inspector of Schools, Aijal for identical purpose. The petitioner was called upon to submit his reply to the charge by 27-3-67. The Assistant Inspector of Schools, Aijal in turn, the departmental file reveals, forwarded a copy each of the notice to the Deputy Inspectors of Schools, Aijal and Lungleh for wide publicity. The Nazir and the Assistant Inspector of Schools having carried out the direction given to them by the Deputy Commissioner, the papers were placed before the latter on 28-3-1967 for necessary orders. In the order passed by the Deputy Commissioner on that date it was mentioned that the charges framed against the delinquent had been duly served, having been hung in his notice board and that of the local departmental head of the Government servant concerned. It was then stated that the delinquent was reported 'to have joined the M. N. F. and has absconded', and that 'it is not, therefore, possible or reasonably practicable to follow the procedure detailed in Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964, in respect of these proceedings against the Government servant.' As a consequence, the order runs further, 'recourse is hereby taken to Rule 10(ii) of the said Rules and final order is passed.' In second paragraph of that order the Deputy Commissioner mentioned that he felt satisfied that the charges framed against the delinquent are according to the reports received, true and proved, and then the Deputy Commissioner made an order dismissing the delinquent with immediate effect and directed in addition that the delinquent shall not be eligible for re-appointment in Government service nor entitled to any pay and other allowances or any other dues from 28-2-1966 (the day on which he deserted the post of duty) onwards.
3. The writ petition was filed by Ngunhulha on 17-7-1972, He denied therein that he had deserted his post of duty and affirmed that since on account of the rebellion it became impossible for him to continue at Tawipui, he shifted to Mualcheng, a village three miles away from Tawipui, in October, 1966. He denied that he had been served with the show cause notice respecting the charges framed by the Deputy Commissioner and added that he learned about his dismissal on 4th June, 1971 'when he took a certified copy of the aforesaid order dated 28th March, 1967, from the Deputy Inspector of Schools, Lungleh.' The petitioner averred that he was arrested on 10th June, 1968, while he was on his way to Lungleh, that he was let out on bail on 5th February, l971, and that since he had not been keeping good health eversince the date of his arrest he had not been able to file the petition earlier. He admitted in his writ petition that the criminal charge levelled against him was under Section 121, I.P.C., relevant number of the case being G.R. 212 of 1966, and that he had not received any pay since February, 1966, and that that circumstance had made him and his family members to live in a state of semistarvation.
4. The validity of the dismissal order was assailed by the petitioner on three grounds, namely, (1) it violated the principles of natural justice, (2) it had infringed the Constitutional guarantee outlined in Article 511(2) of the Constitution, and (3) that the Deputy Commissioner had no justification for taking recourse to Rule 10(ii) of the Rules.
5. The prayer made in the writ petition was resisted by the respondents who traversed the various allegations, of fact and law made by the petitioner. It was stated in the affidavit-in-opposition that the petitioner had deserted his office, had joined the Front, had absconded, and that it was consequently impossible to adopt the normal procedure of enquiry contemplated by Article 311(2) and the Rules. It was affirmed that if the petitioner could be traced he would have been arrested by the security forces immediately the criminal case was registered against him, and that if he had not absconded he would have also made efforts to claim his pay, which he never did. The respondents maintained that the Deputy Commissioner had sufficient justification for taking recourse to Rule 10 of the Rules and that the dismissal order cannot be said to have violated either the principles of natural justice or the Constitutional guarantee vouched in Article 311(2) of the Constitution.
6. Sri P.C. Kataki urged at the bar on behalf of the petitioner that the facts and circumstances of the case clearly demonstrate that the departmental proceedings initiated against the petitioner had violated the provisions of Clause (2) of Article 311 and that there was no legal justification for the Deputy Commissioner to take recourse to Rule 10 during the pendency of the departmental proceedings. Another point raised by him was that the facts set out in the impugned order do not warrant the adoption of the procedure contemplated by Rule 10 as a substitute for the normal procedure set out in Rule 9. Sri K. K. Bazbarua, who represented the respondents, submitted on the other hand that the Deputy Commissioner had infringed neither the provisions of Article 311(2) nor had violated the Rules that he had adequate justification for resorting to Rules 10 in the background of the facts brought to his notice, in particular the abscondence of the petitioner, and that in addition the petition merited dismissal on the score that recourse to legal proceedings was highly belated.
7. I deem it proper to firstly take up the preliminary objection adopted by Sri Bazbarua, namely, that the petition has to be thrown out on the basis of delay which is indicative of laches. It was commonly agreed that the rebellion broke out on 28th February, 1966, that the departmental case was started against the petitioner on 17-3-1967, that he was dismissed on 28-3-1967, that he arrested on 10-6-1968 and was then let out on bail on 5-2-1971, that he secured a copy of the dismissal order on 4th June, 1971, and that he filed the writ petition on 17-7-1972. It is manifest that the writ petition was made five years and about four months after the order of dismissal, and a year and about five months after the petitioner had been released on bail. It is the case of the petitioner himself that he secured a copy of the dismissal order on 4th June, 1971, and so he allowed another thirteen months to run out before he decided to file the writ petition. Although there is no period of limitation prescribed for an application made under Article 226, yet it is settled beyond controversy that an application may be rejected, in the discretion of the High Court, on the ground of inordinate delay and laches on the part of the applicant, vide Maharastra State Road Transport Conrpn. v. Balwant Regular Motor Service : 1SCR808 . The Supreme Court held in the case of Durga Prasad v. Chief Controller of Imports and Exports : 2SCR861 , that even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court and if the petitioner has been guilty of laches the High Court can refuse to issue a writ. In another two decisions of the Supreme Court, State of Madh. Pro. v. Bhailal : 6SCR261 , and Tilokchand v. Munshi : 2SCR824 , it was held that the High Court may take cognizance of the period of limitation where if the petitioner had brought a suit for relief claimed in the writ it would have been barred by time. In the second mentioned case it was observed further that if the suit for claiming relief sought in the writ petition would be barred by the time the petition was filed, normally speaking it would be a case of undue delay and so the petition may be rejected as highly belated. It was further held in the same authority that the same rule applies to the Supreme Court and that though the right to move the Supreme Court is itself a guaranteed right, it does not follow that the Supreme Court should discard all principles and grant reliefs in a petition filed after inordinate delay. The Court ruled that it would not grant any relief to a party which without any reasonable explanation approached the Court under Article 32 after a long unexplained delay. The party claiming fundamental rights must move the Court before other rights of innocent parties emerge by reason of delay on the part of the person moving the Court, and that as such in enquiring into belated and stale claims the Supreme Court should take note of evidence of neglect of one's own rights for a long time or rights of the innocent parties which might have emerged by reason of delay. It is in the light of these principles that the question of delay in the instant case has to be examined.
8. Beyond doubt the petitioner had three years' time to challenge the impugned order if he had filed a suit for the purpose. As such, a suit would have been clearly barred on 17-7-1972 when he filed the present petition because the impugned order had been made as far back as 28-3-1967. Measured by the yard-stick provided in the two Supreme Court cases mentioned above, viz., those of Bhailal and Tilokchand, (supra), the writ petition had been filed after considerable delay and so merits dismissal unless the delay can be satisfactorily explained. The petitioner's counsel vigorously contended that the petitioner having not been personally served with the show cause notice issued by the Deputy Commissioner, he could not have knowledge of the impugned order earlier than 4th June, 1971, when he secured a copy thereof. I remain unconvinced about the validity of the argument. The petitioner had been proceeded against not only depart-mentally but also criminally. If he had not absconded as contended on behalf of the respondents in this Court and as held by the Deputy Commissioner in the impugned order, the petitioner would have been arrested in the criminal case much earlier than 10-6-1968, and the petitioner, who on his own admission, had been living in semi-starvation conditions, would have knocked at the door of the appropriate authority to claim his pay which he admittedly did not get since February, 1966, the month when the rebellion broke out in the district of Mizo Hills. It is mentioned in the affidavit-in-opposition that those Government servants of the State who had not joined the Front and remained loyal to the State and continued at their respective posts of duty were paid their salaries from month to month. If the petitioner could not get his salary, it must be obviously for the reason that he had not only abdicated his post but had joined the rebellion and so was not traceable. The petitioner cannot be heard to make grievance of the fact that he could not come to know of the dismissal order earlier than 4th June, 1971, because he cannot be allowed to take advantage of his own seditious act and ab-condence to claim some rights from the State against which his anarchist activities were directed. Further, the petitioner admittedly got a copy of the dismissal order on 4th June, 1971. He must have immediately learnt that the order of his dismissal had been passed on 28-3-67. It has to be presumed that he knew the law prevalent in the country and that according to that law a suit for challenging the impugned order could not be filed on or after 4th June, 1971, and his petition for a writ of certiorari for quashing that order could have been branded as highly belated even by 4th June, 1971. However, he slept over the matter for more than thirteen months after having got the copy of the order and filed the writ petition on 17-7-1972. It is obvious that since the dismissal of the petitioner, his substitute must have been recruited, and, as such, his right or the right of somebody recruited subsequent to him may be jeopardised if the present writ petition succeeds. Therefore, following the principles enunciated in the cases of Bhailal and Tihkchand, (supra), I hold that the present petition merits rejection on the basis of inordinate delay smacking of laches. It will be noticed that the petitioner has furnished no plausible explanation respecting the delay between 4-6-1971 and 17-7-1972.
9. I now proceed to examine the main contention urged on behalf of the petitioner by his counsel, namely, that the Deputy Commissioner had no justification for taking recourse to Rule 10 of the Rules. That rule inter alia provides that notwithstanding anything contained in Rule 9 where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in Rule 9, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as he thinks fit. Rule 9 bears the heading 'Procedure for imposing penalties.' It is a long drawn out rule prescribing how the enquiry against a delinquent has to be conducted right from the stage when the charges are framed against him until the imposition of the penalties mentioned in Rule 7. The penalties set out in Rule 7 include, amongst others, the penalty of dismissal from service. Rule 9 prescribes the procedure if I may say so which carries out meticulously the constitutional directive given in Clause (2) of Article 311. That clause provides that no Government employee answering the description given in Clause (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 reasonable opportunity of being heard in respect of those charges and where it is proposed, after such enquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry.
10. Three provisos are appended to Clause (2) of Article 311, the second of which states that Clause (2) of Article 311 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 enquiry. It is on the authority of this second proviso that Sri Bezbarua urged before this Court that in view of the conclusion reached by the Deputy Commissioner on 28-3-1967 that it was not reasonably practicable to follow the procedure detailed in Rule 9, the provisions of Clause (2) of Article 311 are not attracted. Sri Bezbarua also invited this Court's attention to Clause (3) of Article 311 which enacts that if, in respect of the Government servant concerned, a question arises whether it is reasonably practicable to hold such enquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. If, therefore, the decision of the Deputy Commissioner that it was not reasonably practicable to hold the enquiry in accordance with the procedure prescribed in Rule 9 is beyond challenge, and if what is contemplated by Rule 9 is an enquiry envisaged by Clause (2) of Article 311 then surely no fault, legal or factual, can be found with the impugned order. A close study of the impugned order would reveal that though in the beginning the Deputy Commissioner made a genuine effort to hold the enquiry in compliance with the provisions of Rule 9, but he felt thwarted inasmuch as the petitioner was reported to have absconded and so he could not be expected to participate in the enquiry. If the Deputy Commissioner had proceeded with the enquiry ex pane, that course would not have been more beneficial to the petitioner. Anyway, since the Constitution has left it to the discretion of the punishing authority to take recourse to the second proviso appended to Clause (2) of Article 311, and since such authority had exercised its discretion in the matter, the jurisdiction of this Court to determine whether that authority should have proceeded in the manner it did is clearly ousted. The proviso in question only requires the punishing authority to record in writing the reason which had influenced it in adopting the course stated therein. In the instant case, that requirement was satisfied inasmuch as the Deputy Commissioner clearly mentioned in the impugned order that the delinquent having joined the Front and absconded, it was not 'possible or reasonably practicable to follow the procedure derailed in Rule 9....'
11. A point raised by Sri Kataki was that the departmental file does not show that the Deputy Commissioner had made any effort to serve the show cause notice on the petitioner personally and on that premise he urged that the Deputy Commissioner was not justified in dispensing with the procedure prescribed by Rule 9. The argument has fallen completely flat with me. It is for the reason that it was reported to the Deputy Commissioner on 10th March, 1967, by no less a person than the Superintendent of Police, Delhi Special Branch, Mizo Hills that Ngunhulha was a signatory to the independence Bill adopted by the Front and that he was a 'self-styled Senator.' I have mentioned before that a criminal case under Section 121, I. P. C. was also registered against the accused in 1966, the year of rebellion, and if the petitioner bad not absconded and deserted office he would have been arrested much earlier than 10-6-1968 when he was nabbed by the police. It is germane to point out that the petitioner admittedly did not draw his salary from February, 1966, onwards. In the background of these circumstances, the Deputy Commissioner, I feel satisfied, was fully justified in holding that it was not reasonably practicable to hold the enquiry in accordance with the procedure detailed in Rule 9, and, as such, he was justified in taking recourse to Rule 10(ii).
12. It is correct that the Deputy Commissioner stated in his order dated 28-3-1967 that it was not possible or reasonably practicable to follow the procedure detailed in Rule 9, while the second proviso to Clause (2) of Article 311 refers to enquiry contemplated under that clause. However, the procedure outlined in Rule 9 is nothing but a procedure for holding the enquiry contemplated by Clause (2) of Article 311. Therefore, the Deputy Commissioner really meant to dispense with that enquiry and to take recourse to the second proviso appended to Clause (2) of the Article.
13. Towards the close of his arguments Sri Kataki submitted that since the Deputy Commissioner had once taken recourse to the enquiry in the manner stated in Rule 9, he may not have changed his mind subsequently and take recourse to the second proviso of cl, (2) of Article 311. Sri Kataki was unable to cite any authority in support of the proposition canvassed by him. I find, however, that the Calcutta High Court held in Sunil Kumar v. State : (1970)ILLJ588Cal , that the exemption under Rule 10 from holding the enquiry contemplated in Rule 9 is for the benefit of the administration and conducive to public interest and the right given to the administration cannot be forfeited on the principle of estoppel. The Calcutta High Court expressed the clear-cut view that even if the Disciplinary Authority has proceeded to hold an enquiry it can fall back upon the provisos appended to Article 311(2). This proposition sounds convincing for one can contemplate a variety of situations that may develop during the pendency of the enquiry which may weigh with the Disciplinary Authority in dispensing with the same and resorting to ore or other of the provisos appended to Article 311(2).
14. For the reasons stated above 1 hold that the writ petition must be rejected on the score of belated institution and that the impugned order suffers from the infirmity, factual, legal or constitutional. Hence I dismiss the petition with costs. Advocate's fee Rs. 100.
B.N. Sarma, J.
15. I agree.