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Jitendra Singh vs Union Of India & Ors. on 26 July, 2009

Jharkhand High Court
Jitendra Singh vs Union Of India & Ors. on 26 July, 2009
            IN THE HIGH COURT OF JHARKHAND AT R A N C H I
                                   ----
                           L.P.A. NO.363/2008
                                   With
                             I.A.NO.2897/08
                                   ----
              Jitendra Singh                  ........ Appellant.

                                          Versus

                 Union of India & Ors.               ............         Respondents.
                                             ----
                CORAM :             HON'BLE THE CHIEF JUSTICE
                                  HON'BLE MR.JUSTICE D.K.SINHA
                                            ---
                For the Appellant:                      Mr.A.K.Mishra.
                For the Respondent-Union of India       Md.Modhtar Khan.
                                          -----


04/26.07.2009

This appeal has been preferred against the order dated
22.11.2005 passed by the learned Single Judge in W.P(S)
NO.4933/2005 by which the writ petition was dismissed holding
therein that the petitioner whose services had been terminated while
he was on probation, was justified as it was found that either he was
convicted in a criminal case or a criminal case was pending against
him.

The appellant did not prefer any appeal for
approximately 1007 days and thus this appeal is time barred by 1007
days. However, the petitioner/appellant subsequently filed this
appeal after a delay of 1007 days, along with an application for
condonation of delay under Section 5 of the Limitation Act. The
application for condonation of delay was first of all listed for orders
but at that stage the application for condonation of delay was
ordered to be listed along with the appeal for admission at which
stage the question of delay also was to be considered. This is how
this appeal has come up for admission along with the application for
condonation of delay.

Counsel for the appellant submitted that the delay of 1007
days occurred in filing the appeal on account of the fact that the
appellant is a resident of Lucknow and, therefore, the delay has
occurred in filing this appeal.

2/
We find absolutely no substance in this explanation for
merely because the petitioner/appellant herein is a resident of
Lucknow, the same cannot grant him the liberty to file an appeal in
the High Court after a delay of 1007 days specially when he had
already filed a writ petition challenging the order of his termination.

However, in spite of the grave laches and delay, we
permitted the appellant’s counsel to address us on the merit of the
appeal and hence, perused the order passed by the learned Single
Judge.

Having heard the counsel for the appellant and also on
perusal of the order passed by the learned Single Judge, we find that
the petitioner/appellant has absolutely no case on merit also as he
was a Constable in the C.I.S.F. and while he was discharging duties
merely as a probationer, he was terminated from the service after a
show cause notice was issued to him as it was found that a criminal
case was pending against the appellant/Jitendra Singh in which he
perhaps was also convicted. This was the sum and substance of the
reasons for terminating the services of the appellant which he
assailed before the learned Single Judge wherein he claims to have
submitted that the order of termination was unjustified as there is a
report of the police to the effect that the person Jitendra Singh
against whom the criminal case was pending, was a different man
and it is not the petitioner/appellant herein who had been convicted.

In our considered view, it was the duty of the appellant to
furnish adequate documentary evidence before the competent
authority that the said Jitendra Singh who was involved in a criminal
case was a different man and that was extremely easy to establish as
the appellant could have stated the name of his father from which it
could be detected as to whether any criminal case is pending against
him or not. Even before the learned Single Judge the
petitioner/appellant herein did not seem to have addressed the Court
on this aspect of the matter. At the stage of appeal, a question which
is purely of a factual nature as to whether the appellant Jitendra
Singh was involved in a criminal case or it was some other Jitendra
Singh, cannot be allowed to be raised either in the writ petition or in
the appeal arising out of it.

However, the counsel for the Union of India has drawn
the attention of this Court to the fact that the Deputy Commissioner
has also sent a report to the Enquiry Officer to the effect that
3/
Jitendra Singh who was an accused in a criminal case was also
involved. Therefore, as per the respondent-authority the appellant,
Jitendra Singh and the so called another Jitendra Singh are one and
the same person which fact although has been refuted by the
counsel for the appellant, could not have been allowed to be assailed
before the learned Single Judge under the writ jurisdiction or in an
appeal against the same.

Hence, we see no justification to entertain this appeal.
Consequently this appeal is dismissed at the stage of admission on
merit as also on the ground of huge delay.

(Gyan Sudha Misra,C.J.)

( D.K.Sinha, J )
Biswas

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