Central Administrative Tribunal - Ernakulam
Mary V Abraham vs Director Of Geology And Mining And ... on 7 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
M.A.No.884/2011 and O.A No. 640/2011
Tuesday, this the 7th day of February, 2012.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
1. Mary V Abraham,
Retired Senior Lab Technician B,
Staff Code No.13376,
Medical Section, VSSC,
Thiruvananthapuram-695 022.
2. Radha S Nair,
Retired Senior Lab Technician B,
Staff Code No.15034,
Medical Section, VSSC,
Thiruvananthapuram-695 022.
3. M.Vasudevan,
Retired Senior Pharmacist B,
Staff Code No.17891,
Medical Section, VSSC,
Thiruvananthapuram-695 022.
4. P.Subramania Pillai,
Retired Senior Pharmacist B,
Staff Code No.16094,
Medical Section, VSSC,
Thiruvananthapuram-695 022.
5. V.Mangalam,
Retired Senior Lab Technician B,
Staff Code No.13383,
Medical Section, VSSC,
Thiruvananthapuram-695 022.
6. George C Abraham,
Retired Senior Pharmacist B,
Staff Code No.11566,
Medical Section, VSSC,
Thiruvananthapuram-695 022. ...applicants
(By Advocate Mr Vishnu S Chempazhanthiyil)
v.
1. The Chairman,
Indian Space Research Organisation,
Department of Space,
Antariksh Bhavan, New BEL Road,
Bangalore-560 31.
2. The Secretary,
Department of Space, Government of India,
Antariksh Bhavan, New BEL Road,
Bangalore-560 31.
3. The Director, VSSC,'
ISRO-PO,
Thiruvananthapuram-695 022. ....Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC)
This application having been finally heard on 31.01.2012, the Tribunal on
07.02.2012 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER The applicants, who were paramedical staff in VSSC, recruited in 1976, have come up in this OA with the following reliefs:
(i) Declare that the paramedical staff and other Sci/Tech staff in the non-core sectors are similar in relation to ISRO activities and in view of the ISRO norms.
(ii)Declare that the paramedical staff in ISRO are subjected to hostile discrimination in regard to career opportunities.
(iii)Direct the respondents to consider extending the benefit of O.M.No.HQ:ADMN:A.20(3) dated 12.3.1998 (Annexure A-4) to the applicants.
(iv)Direct the respondents to fix notionally all the promotions and to grant all consequential, monetary and pensionary benefits in accordance to the 1998 OM.
2. As the relief sought for includes consideration by the respondents of extending the benefit of OM dated 12-03-1998, the applicants have filed an application for condonation of delay of 4380 days. The reasons for delay as contained in para 4 to 6 of the M.A. are as under:-
"4. It is submitted that the applicants have been agitated the matter as is clear from Annexure A-1. The issue had been raised before various forums including pay commissions in terms of direction in O.A.No.1857/1993. Though, the grievances were highlighted before the competent forums, no action has been forthcoming. No response was also given to the various representations submitted before the competent forums. While the issue of the paramedical staff being singled out was pending consideration, the respondents had as per O.M.No.HQ.ADMN.A.20(3) dated 12.3.1998 granted relief to similarly situated Lab Assistants. Further, the report of medical advisory committee No.VSSC/MED/4/1994 dated 18.7.1994 had observed glaring disparity with regard to Paramedical Staff and other similarly situated staff in ISRO. Further the Medical Advisory Committee also recommended for redesignating the paramedical staff suitably as Tradesman or other appropriate category within the purview of ISRO norms.
5. Apart from Annexure A-2 representation the applicants had raised this issue vide their representations dated 30.10.2008 and 18.10.2010. The representation at 18.1.2010 was submitted, when anomalies arose consequent upon the recommendations. A copy of representation dated 18.1.2010 is produced to be marked as Annexure MAI. An identical representation submitted on 5.4.2010. In this connection, O.M.No.HQ.ADMN.A.20(3).2009 dated 14.12.2009 is produced to be marked as Annexure MA2. A copy of representation dated 21.4.2010 is produced to be marked as Annexure MA3.
6. Thus it can be seen that the applicants have been agitating the issue before various forums but with no response. In the meanwhile, the applicants had to retire from service after suffering the stagnation i.e. continuing in the highest grade of paramedical staff, for more than 20 years. Whereas, in terms of the present orders, it is possible for a new entrant to achieve the maximum pay scale drawn by the applicants within 10 years of their entry in service. It is therefore respectfully submitted that the applicants have been agitating their grievances in a right earnest. There is no deliberate delay or latches in approaching this Hon'ble Tribunal. The applicants had been knocking at the doors of the competent authorities, as the grant of additional grades and removal of stagnation etc are policy matters, which the administrative authority is to consider. As thee is considerable delay in settling the grievances or at least responding to the grievances raised, the applicants had no option but to file this present Original Application for direction to extend the benefits of Annexure A4 to the applicants. As Annexure A4 is dated 12.3.1998, there would be a delay of 4380 days in claiming the benefit of Annexure A4. In this connection, it is pointed out that the applicants were able to procure the documents including Annexure A4 only after the same was applied under RTI Act."
3. The Application also contains the submission that the reason for singling out the Paramedical staff could not be ascertained till the receipt of communication from the respondents through RTI Act which was received only in 2010.
4. Respondents have preferred objection to the above M.A. for condonation of delay. They have stated that the actual delay is in fact a stupendous 4872 days as the cause of action arose as early as on 31-05-1998. The Apex Court in the case of C. Jacob vs Director of Geology and Mining and another (2008) 10 SCC 115 has held as under:-
"8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service.
Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation."
5. As regards the merits of the matter, the respondents have contended that the para medical category cannot be compared with Technicians Category.
6. In their rejoinder to the above said objection, the applicants have stated that the case in C. Jacob could be distinguished from the facts of this case. Again, when fundamental rights are affected, limitation cannot come into play.
7. Counsel for the applicant submitted that the delay in approaching the Tribunal is not intentional. The respondents had not replied to the communications sent by the applicants and the applicants were under a bonafide impression that the respondents would be considering the same. As there has been no consideration (in other words, no application of mind), the applicants have approached the Tribunal.
8. Counsel for the respondents has submitted that the delay is inordinate not to be condoned at any cost.
9. Arguments were heard and documents perused. Section 21 of the Administrative Tribunals Act, 1985 deals with limitation. The same reads as under:-
"21. Limitation.--(1) A Tribunal shall not admit an application,--
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of Section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where--
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-
section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that they had sufficient cause for not making the application within such period."
(emphasis supplied)
10. The above provisions came up for interpretation by the Apex Court in many decisions. The following are the dictum of the Apex Court:-
(a) Normally, a belated service related claim will be rejected on the ground of limitation. One exception is cases relating to a continuing wrong. There is an exception to the above exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. (Union of India vs Tarsem Singh (2008) 8 SCC 648).
(b) Where representation made is rejected and subsequently further representations are made but no response thereof was forthcoming, such repeated unsuccessful representations cannot elongate the period of limitation. ( See Administrator of Union Territory of Deman and Diu vs R.D. Valand (1995) Supp 4 SCC 593. In this case the delay was for about 15 years) (Also see S.S. Rathore vs State of M.P. (1989) 4 SCC 582)
(c) Where there is continuous cause of action, such as wrong fixation of pay, while there would be no limitation in such fixation of pay, limitation would apply with regard to the consequential and other reliefs including the arrears, if any. (M.R. Gupta vs Union of India, (1995) 5 SCC 628; Jai Dev Gupta vs State of H.P. (1997) 11 SCC 13 and State of Madhya Pradesh vs Yogendra Shrivastava (2010) 12 SCC 538 )
(d) Delay beyond the period of prescribed limitation period vide sub sections (1) and (2) should be properly explained. Explanation such as such a relief had been granted by the Tribunal in some cases, came to the knowledge of the applicants at a later date only, cannot be a proper explanation. (State of Karnataka vs S.M. Kotrayya, (1996) 6 SCC
267)
(e) Where, however, the decision of the Court is a judgment in rem, delay can be condoned.
(See K.C. Sharma vs Union of India (1997) 6 SCC 721)
(f) Where the scheme itself is based on the need for 'immediate relief', such as compassionate appointments, if there be inordinate delay in approaching the Tribunal for such reliefs after rejection at the administrative side, the delay cannot be condoned. (Dhalla Ram vs Union of India (1997) 11 SCC 201)
(g) Where condonation of delay would lead to a result of unsettling a settled affair (such as seniority etc., ) Tribunal should not condone the delay. (A.K. Mitra (Dr), DG, C.S.I.R. Vs D. Appa Rao (1988) 9 SCC
492)
(h) When no valid reason for long delay (fourteen years in that case) was given the Tribunal should not decide the case on merit. (Commandant, TSP vs Easwaramoorthy, (1999) SCC (L & S) 643) Also See (Ramesh Chand Sharma vs Udham Singh Kamal, (1999) 8 SCC 304
(i) Stale claims (when opportunity to approach the Tribunal was fully available on different occasions but not utilized) cannot be entertained by condonation of delay. (E. Parasivan v Union of India (2003) 12 SCC 270
(j) When equitable relief is sought, delay in filing the original application should not be held to be a bar in granting relief ( Union of India vs Shantiranjan Sarkar (2009) 3 SCC 90)
(k) Circumventing the limitation by seeking a relief for disposal of representation and later on the rejection of representation projecting a case on the basis of fresh cause of action is not to be encouraged. ( C. Jacob vs Director of Geology and Mining and another (2008) 10 SCC 115 )
(l) Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. (N. Balakrishnan vs M. Krishnamurthy (1998) 7 SCC 123)
(m) Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits (State of Bihar vs Kameshwar Prasad Kameshwar Prasad (2000) 9 SCC 94)
11. Keeping in view if the case of the applicants is analyzed, their claim is for extension of the benefits available under Annexure A-4 order dated 12-03- 1998 i.e. the benefits available to the technical/auxillary staff are sought to be got extended to the paramedical staff. This relief is not one of establishment of an existing right but creation of a new right. It cannot also be stated to be an equitable right. There were adequate opportunities available to the applicants during their service career to claim the above benefit either individually or through their Union/Association. The applicants had chosen not to approach the Tribunal at that time. A mere representation once in four years or so would not mean that the applicants were following up their case. We are not at all satisfied with the vigil with which the applicants had proceeded with the matter nor with the reasons given in the application for condonation of delay.
12. In view of the above, the M.A. for condonation of delay of 4380 days is therefore, dismissed. Consequently, the OA also is dismissed on account of limitation.
13. No cost.
K NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs