Central Administrative Tribunal - Delhi
Sanjay Kumar vs Delhi Transport Corporation, Govt. Of ... on 13 October, 2017
1 MAs 1673 & 1674/17
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
M.A.NO.1674 & 1673 OF 2017
(In OA No.4374 of 2014
New Delhi, this the 13th day of October, 2017
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE MS. PRAVEEN MAHAJAN, ADMINISTRATIVE MEMBER
.............
Sanjay Kumar,
Aged 35 years,
S/o Sh.Rishal Singh,
VPO Saman Pana Khas,
Tehsil Meham (Rohtak)
Haryana .......... Applicant
(By Advocate: Mr.Sachin Chouhan)
Vs.
Delhi Transport Corporation,
Govt. of NCT of Delhi,
I.P.Estate, New Delhi,
(through its Chairman cum Managing Director)........ Respondent
(By Advocate: Ms.Mona Sinha, proxy for Ms.Ruchira Gupta)
...........
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
MA Nos.1673 and 1674 of 2017 arise out of OA No.4374 of 2014.
2. The applicant in MA Nos. 1673 and 1674 of 2017 had filed OA No.4374 of 2014 assailing the order of termination of services passed against him by the respondent. In the O.A., the applicant urged, inter alia, Page 1 of 9 2 MAs 1673 & 1674/17 that the impugned order of termination of his services passed by the respondent without holding a regular departmental enquiry and without affording him a reasonable opportunity of hearing is bad and illegal and liable to be quashed.
3. As the learned counsel for the applicant did not appear on 5.5.2015 and 13.5.2015 when the O.A. was listed for hearing, the Tribunal dismissed OA No.4374 of 2014 for default, vide order dated 13.5.2015.
4. Hence, MA No.1674 of 2017 was filed by the applicant on 20.2.2017 for setting aside the order dated 13.5.2015 and for restoration of OA No.4374 of 2014. MA No.1673 of 2017 was filed by the applicant for condonation of delay in the filing of MA No. 1674 of 2017. The applicant has contended, inter alia, that due to communication gap between him and the previous counsel engaged by him, he could not take appropriate steps to pursue the matter, and that due to fault of the learned counsel, he should not suffer. A large number of O.As. filed by similarly placed persons have been allowed, and the impugned orders of termination of services passed by the respondent have been quashed by the Tribunal, and, therefore, he is entitled to the same reliefs. In case the order dated 13.5.2015 is not set aside and OA No.4374 of 2014 is not restored and decided on merits in terms of the decision already rendered by the Tribunal in similar cases, he would suffer from irreparable loss and irremediable damages. In support of his contention, the applicant has filed copy of order dated 16.5.2017 passed by the co-ordinate Bench of the Tribunal in OA No.3828 of 2016 and other Page 2 of 9 3 MAs 1673 & 1674/17 connected O.As.(Sh.Suresh Kumar, etc. Vc. Chairman-cum-Managing Director, DTC, etc.).
5. Resisting MA Nos. 1673 and 1674 of 2017, the respondent has filed counter reply contending, inter alia, that miscommunication between the counsel and the applicant does not come under "sufficient cause". The applicant having failed to show sufficient cause which prevented him from filing the application for setting aside the order dated 13.5.2015 and for restoration of OA No.4374 of 2014, MA No.1673 of 2017 is liable to be rejected, and MA No.1674 of 2017 is liable to be rejected as being barred by limitation.
6. Besides reiterating the contentions as raised in MA Nos. 1673 and 1674 of 2017, Mr.Sachin Chauhan, the learned counsel appearing for the applicant, submitted that the procedure is meant only to facilitate the administration of justice and not to defeat the same. Since the order of termination of services passed by the respondent is ex facie illegal, and the Tribunal has allowed a number of O.As. filed by similarly placed persons, the delay in the filing of the application for setting aside the order dated 13.5.2015 and for restoration of OA No.4374 of 2014 (which was dismissed for default) should be condoned and the application for restoration of the OA should be allowed by the Tribunal in the interest of justice.
7. Per contra, in support of the stand taken by the respondent, Ms.Mona Sinha, proxy for Ms.Ruchira Gupta, the learned counsel appearing for the respondent, relied on the decision of the Hon'ble Supreme Court in Page 3 of 9 4 MAs 1673 & 1674/17 State of Uttar Pradesh & others Vs.Arvind Kumar Srivastava and others, (2015) 1 SCC 347, and the decisions of the Hon'ble High Court of Judicature at Madras in Tamil Nadu Mercantile Bank Ltd. Vs. Appellate Authority and another, Writ Petition No.9377 of 1982, decided on 20.9.1989, and in C.Raghupathy Vs. C.Govindan and others, 2009(1) CTC 319.
7.1 In State of Uttar Pradesh & others Vs. Arvind Kumar Srivastava and others (supra), sometime in the year 1986, certain posts of Homoeopathic Compounder and Ward Boys were advertized. The respondents applied for the said posts and participated in the selection process, but were wait-listed. When some of the candidates in the selection list did not join, wait-listed candidates were issued appointment letters which included the respondents also. However, before they could join their duties, new Chief Medical Officer assumed charge and, vide order dated 22.6.1987, cancelled the said appointments made by his predecessor. The respondents filed a suit in the Court of Munsif which was dismissed for non-prosecution because of non-appearance of the respondents' advocate. There was a complete quietus on the part of the respondents thereafter. A few other candidates who were also affected by same order dated 22.6.1987 approached the Tribunal. The Tribunal, vide order dated 16.8.2991, quashed the order dated 22.6.1987. A writ petition filed by the State against the order of the Tribunal was dismissed by the Hon'ble High Court. The special leave petition also met the same fate. Thus, the order of the Tribunal dated Page 4 of 9 5 MAs 1673 & 1674/17 16.8.1991 attained finality and the candidates who had approached the Tribunal were appointed. The respondents in the instant case filed a representation only in the year 1995 claiming appointments on the basis of the Tribunal's order dated 16.8.1991, claiming parity, which was rejected vide order dated 6.6.1995 by the Chief Medical Officer. The claim petition filed by the respondents was allowed by the Tribunal, and affirmed by the impugned judgment passed by the Hon'ble High Court. The Hon'ble Supreme Court allowed the Civil Appeal and set aside the judgments passed by the Tribunal and by the High Court.
7.2 In Tamil Nadu Mercantile Bank Ltd. Vs. Appellate Authority and another (supra), the order of the Appellate Authority under the Tamil Nadu Shops and Establishments Act condoning the delay of 285 days in preferring an appeal by the second respondent was under challenge. Considering the facts and circumstances of the case, the Hon'ble High Court of Judicature at Madras allowed the writ petition and quashed the Appellate Authority's order.
7.3 In C.Raghupathy Vs. C.Govindan and others (supra), the respondent had filed a Suit before the District Munsif against the petitioner for declaration of title, recovery of possession, and consequential injunction in respect of the suit schedule property. The Suit was decreed ex parte on 19.1.1999. Thereafter, the petitioner filed application for condonation of 942 days of delay in filing the application to set aside the ex parte decree. In the meantime, the respondent filed execution proceeding for delivery of Page 5 of 9 6 MAs 1673 & 1674/17 possession and obtained an ex parte order of delivery of possession. Thereafter, the petitioner filed execution appeal to set aside the said ex parte order of delivery of possession and execution appeal for appointment of Taluk Surveyor to find out the correct survey number of the property in possession of the petitioner, etc.. The execution appeal was dismissed, against which the petitioner preferred civil revision petition before the Hon'ble High Court. The civil revision petition was also dismissed. The order passed by the District Munsif refusing to condone delay of 942 days in filing application to set aside the ex parte decree passed in the suit was under
challenge. The petitioner's main contention was that the delay had occurred due to the communication gap between him and his previous counsel on record. In the above context, while dismissing the civil revision petition and upholding the impugned order passed by the District Munsif, the Hon'ble High Court observed that even by engaging a counsel, party to the case is not relieved of his duties and obligations, and that where a party either does not fully brief the counsel, or keep no contact with him, it is the party who is in default and negligence has to bear the consequences.
8. After having given our thoughtful consideration to the facts and circumstances of the case, we are not inclined to accept the objection/contention raised by the respondent.
9. It transpires from record that the OA was listed before the Bench for preliminary hearing on the question of admission on 11.12.2014 when notice was directed to be issued to the respondent and the counsel Page 6 of 9
7 MAs 1673 & 1674/17 representing the respondent accepted notice and undertook to file counter reply within four weeks. Thereafter, the OA was listed before the Bench on 24.2.2015, 25.2.2015, 17.3.2015 and 30.3.2015 when the applicant's counsel was present. On 5.5.2015 the O.A. was listed for final hearing, and as the applicant's counsel did not appear, the Bench adjourned the matter to 13.5.2015, with the stipulation that if on that date "applicant's counsel shall not present, matter would be heard and decided on the basis of pleadings on record." However, on 13.5.2015, as the applicant's counsel did not appear, the Tribunal dismissed the O.A. for default by passing the following order:
"None appears for the applicant. On the last occasion also, no one appeared. In the absence of interest being taken in the matter, OA is dismissed in default for non-prosecution."
Rule 15(1) of the CAT (Procedure) Rules, 1987, stipulates that where on the date fixed for hearing of the application, the applicant does not appear when the application is called for hearing, the Tribunal may, in its discretion, either dismiss the application for default or hear and decide it on merit. In view of the specific order dated 5.5.2015(ibid), in the absence of the applicant's counsel, the matter ought to have been heard and decided with the aid and assistance of the learned counsel appearing for the respondent and on the basis of pleadings, on 13.5.2015 when the order of dismissal of the O.A. for default was passed.
10. In the O.A., the applicant's challenge was to the order of termination of his services passed by the respondent without holding a regular departmental enquiry and without affording him a reasonable Page 7 of 9 8 MAs 1673 & 1674/17 opportunity of hearing. From the common order dated order dated 16.5.2017 passed by the co-ordinate Bench of the Tribunal in OA No.3828 of 2016 and other connected O.As.(Sh.Suresh Kumar, etc. Vc. Chairman-cum- Managing Director, DTC, etc.), it is seen that a large number of O.As. filed by similarly placed persons have been allowed and the impugned orders of termination of services passed by the respondent have been quashed by the Tribunal. In view of this, we find considerable force in the contention of the applicant that in case the order dated 13.5.2015(ibid) is not set aside and OA No.4374 of 2014 is not restored and decided on merits in terms of the decision already rendered by the Tribunal in similar cases, he would suffer from irreparable loss and irremediable damages. Rule 15(2) of the CAT (Procedure) Rules, 1987, stipulates that where an application has been dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-appearance when the application was called for hearing, the Tribunal shall make an order setting aside the order dismissing the application and restore the same. Thus, it is clear that the procedure for filing of application for setting aside the order of dismissal of O.A. for default is meant only to facilitate the administration of justice and not to defeat the same. Considering the totality of the facts and circumstances of the case, particularly the condition of the applicant after termination of his services, we are not inclined to accept the objection/contention raised by the respondent. The decisions cited by the learned counsel appearing for the Page 8 of 9 9 MAs 1673 & 1674/17 respondents, being distinguishable on facts, do not come to the aid of the respondent.
11. In the light of our above discussions, we allow MA Nos. 1673 and 1674 of 2017. Accordingly, the order dated 13.5.2015 dismissing OA No.4374 of 2014 is set aside, and OA No.4374 of 2014 is restored to file. No costs.
12. Let OA No.4374 of 2014 be listed before appropriate Bench for hearing on 13.11.2017.
(PRAVEEN MAHAJAN) (RAJ VIR SHARMA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
AN
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