Central Administrative Tribunal - Kolkata
Devika Biswas vs Police on 25 March, 2022
OA. 351/356/2020
MA. 351/212/2020
(Circuit sitting at Port Blair)
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH ee
KOLKATA f fe
ty
a2
Date of Order: 25° 3.
Present :Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. Nandita Chatterjee, Administrative Member
smi. Devika Biswas, daughter of Shri Ranjan Kumar
Biswas, permanent resident of Bllyground North &
Middle Andaman, presently pasted In the office of the
Assistant Director (Agriculture), Rangat.
4, The Superintendent of Police. {
ove w Applicant.
"VOPraus~
The Union of India, through the Secretary, Ministry
of Home Affairs, Govt. of India, Central Secretariat,
North Block, New Delhi- 110004,
The Chief Secretary, Andaman & Nicobar
Administration Secretariat, Port Blair.
The Director General of Police, Police
Headquarters, Atlanta Point, Port Blair,
HQ), Police Head
Quarters, Port Blair- 744101,
5. The Deputy Superintendent of Police (Estt), Police
Head Quarters, Port Blair.
ateenise uw Respondents.
For the Applicant 'Mr. G. B. Kumar, Counsel
For the Respondents : Mr. & Rac, Counsel
ee
anys"
sey nes.
; '
LOIN
3
ORDER
Yor Ms, Bidisha Baneries, [Mi Heard id. Counsels for the parties.
2. This application has been preferred to seek the following reliefs:
"aqd) An order ve passed directing the 6 repondent quehorities, particwarly the respondent ao. 3 to.S to ionediotely reflow the applicant that part of the salary which is net supported by the provisions of Clause 6.16 of Andaman and Nicobar Police Manual, 1962 with Bo) interest.
fil) Aa order be passed directing the respondent autharities, particularly the respondent no, 3 to 3 te refiind the sum so collected from the applicant with 8% interest after deducting Qvo montis basic pay as done in the case of other police persennel under the respondent no. 2 in terms af the A ndaman & Nicobar Police Manual, 1963.
(R) An order be passed directing the respondent authorities to transmit the original records af the case before this Hon'ble court, 80 that after perusing the came conscionahle justive orgy be rendered to the applicant fC) Any other rellefer reliefs, order or orders, direction or directions as your Honor deem fiband proper."
a
3. The brief facts alluded by the applicant is thus:
That after a selection process, the applicant was selected to the post of Police Constable (Executive) under the respondent no, 3. On 2e¢ August 2016 the applicant received an offer of appointment with certain terms and conditions. That, subsequently vide order book no. 2402 dated 45 August 2016 the applicant was appointed to the post of Police Constable (Executive) under the respondent ne. 3. In the appointment order dated 04.08.2016 in Clause - xix it was mentioned that the applicant was to serve in Andaman & Nicobar Police at least for a period of 3 years and in case, she would, she will have to pay the training expenditure as well as salary paid during the said tenure. That long before her appointment as Police Constable, the applicant in the year 2014 she had applied for and participated in the Recruitment Examination (2014) for the pest of Lower Grade Clerk. In the second week \ of January 2017, she received an offer of appointment dated 17.01.2017 ;
= Clerk under the Andaman & Nicobar Administration. Subsequently, she also received an appointment order no. 424, dated 11° February 2017 as Lower Grade Clerk in amalgamated clerical 'cadre of Andaman and Nicobar Administration. That after such appointment under the Andaman & N icobar Administration on 13.02.2017 she tendered her resignation from the Andaman & Nicobar police force to the respondent no. 4. The officials under the respondent no. 3, vide memo dated 16.02.2017 informed the applicant that her resignation will be accepted only alter depositing the salary and training expenditure. The applicant, on 24.02.20 W requested the respondent no. 5 to alter the condition said memo to the extent of repayment of training a expenditure, but nothing yielded, rather vide memorandum dated 13.04.2017 the respondent no. 5 once again directed the applicant ta deposit Rs.2, 99, 271/- the entire amount right from the date of inception till the dated resignation is accepted by the respondent authorities. Left with no other alternative, the applicant vide receipt no, 11963 dated 15.04.2017 deposited an amount of Rs. 2, 99, 271/- in the accounts section under the respondent no, 3, Further, vide memo dated 17" April, 2017, the respondent no. 5 directed her to deposit further amount of Rs, 4, 759/-. On the same day the applicant, vide receipt no. 11972 dated 17.04.2017, deposited an additional amount of Rs. 4, 759/- in favour of the respondent ne. 3. Consequently, the respondent no. 3 vide order book no. 1310 dated 17.04.2017 accepted her resignation and relieved her from the Andaman and Nicobar Police force with effect from 17.04.2017, The applicant subsequently on 18.04.2017 joined the post of Lower Grade Clerk and posted in the office of the Executive Engineer {E&M) eer"
NS Dee nee eee sion, Prothrapur, Port Blair under the Andaman & Nicobar Administration. Thereafter, on several occasions approached the respondent no. 4 and 5 for refund of part of salary which was illegally recovered by the office of the respondent no. 3 from her, but nothing yielded.
4 The applicant has claimed that in a similar set of facts earlier original applications were fled hefore this Tribunal and this Tribunal by different orders dated 06.07.2018 directed the respondent authorities to refund to the said applicants the part of the salary which is net supported by the provisions of Clause 6.16 of the Andaman and Nicobar Police Manual, 4963. Sach orders were affirmed by the Hon'ble High Court vide order dated 06.07.2019. That the applicant thereafter approached the respondent no. 4 and 5 to which the respondent no, 4 and 5 starte si making lame excuses but did not refund the hy E . : va « 7. e . et % s\ excess amount recavered from the applicant, aggrieved the instant origimal application has been preferred by her, alleging arbitrary discrimination in violation of Article 14 of the Constitution. 5S The respondents have refuted the allegation by way of a re eply. The respondents have emphatically admitted that the applicant was issued an offer of appointment vide No. DGP/Rec. cell /SO/PC (Exe}/2015/4021 dated 02.08.2016.
XXNSENANK XREKNERK ¥NXNEXNARK under clause (xvili), she has to serve int the ASN Police at least fora per iod of three years. In case, she quits, she will have to pay training expenditure. The same was duly accepted by the applicant on 02.08 2016. The clause (xviii) reads as under.
"(xiv} In respect of all service matters hefshe is governed by relevant rules and regulations in force from time to Unte. in case of any ambiguity or ary matter not specifically provided for, the decision of the Director General of Police, ASN islands shall Ge final.
XNXNXNNKSAK KXNXSXANNKSH RANKAXKNNANA (sviii] He/She has to serve in the AGN Police at lease fora period of three years. In case. hevehe quits, he'she will have to poy training expenditure."
6, The respondents have also asserted that after she accepted the atfer of appointment, an appointment order no. 2402 dated 04.08.2016 was issu ed to her along with other selected candidates with condition stipulating under clause VI that she has to serve in ASN Police (Executive) at least for a period of three years. In case, she quits, she will have to pay training expenditure as well as salary paid during this tenure.
'The said clause in the appointment list vide order book no. 2402 reads as under:
"Fier of the Directer General af Police Andaman & Nicobar Islands Port Blair dated 04% August, 2016 ORDER BOOK NO, 2402 APPOINTEMAT GE:-
Phe follawing candidates selected by the Selection Board constituted for the purpase, are hereby appointed as Police Constable (Executive) against the existing vacancies in Andaynan & Nicobar Police in the revised Pay Band PB-I Rs. 5200- 202004 Grade Pay of Rs, 2000/-. .
Father Name 2 | BARKER E SAAN NN NNNANNN NUNN NUE RE RRA N NNN IRR | Devika Biswas i Ranjan Kr. Biswas | oo eee wad ?he terms and conditions for appointinent are as BS der:
ry Fi a L Basic Pay of Rs. G460/- +Grade Pay Rs 2000/-in the revised pay band PB-1 By.5200-20200 plus other allowances are acimissible under rules, if. Rent free unfinished residen tial accommodation or in leu house rent allowance as armissible under the nies.
fil. He/She will he on prebation for a period of three years. Within period of such probation, he/she can be discharged without formal departmental proceedings, if he/she fails to maintam an exemplary standard of conduct and efficiency or If he/she fails to pass tests or examinations as may be prescribed for his category Oi mast by the higher authority.
IV. His/Her confirmation in the post of Police Constable {Executive} will be sabject to hisfher passing out of the training courses and successfully completion of attachments as prescribed.
V. He/She shall undergo basic traming at Police Training School, Prethrapur as prescribed for the past of Police Constable (Executive).
VL. He/She has to serve in Andaman and Nicobar Police (Executive Branch) at least for a periad of three years. In case, he/she auits, he/she will have to pay trang expenditure as well as salary naid daring this tenure.
VIL He/She will have to give an oath of allegiance to the Constitution of India or make a solemn affirmation to this effect in the prescribed form."
RASKNAARRA NNKNERAEASAAA RNKNSASAA.
XHL In respect of all service matters, he {she is governed by relevant rules anid rezalations in farce from time to tne. in case of any ambiguity or any matter not snaciiically provided for, the decision of the Director General af Police, A&N Islands « ws bey ng ff rm shall be tmal.
NXMKARENS SRR XV, He/she should report at Police Training School, Prothrapar on 08.08.2016 (BAN) failing which it will be presumed that he/she Is not interested to accept the appointment order and the same would be treated as cancelled."
Further, the respondents would aver that in respanse to the resignation application submitted by the applicant and others, a Memo was issued to the applicant and others by stating unambiguously that their resignations would be accepted only on the condition of depositing the salary and training expenditure by the concern and categorically asked them to give in writing vide Memo No, DGP/Estt./Folio/2017 /876 dated 16.02.2017. The memo is extracted hereunder for clarity. é "Nffice of the Director General of Police Andaman & Nicobar Islands Port Blair dated 16.02.2017 MEMO The following police personnel are hereby mformed that, their resignation will be accepted only after depositing the salary & training expenditure by the concern, as given in the appoimtment o reer no, 202.
SL. Rank & No. Name Date afi Remarks Rn. . enrollment PC/1394 Abdul Shakir og /08/2016 Under training pC 1427 Durgast Vijaya OS/OR/Z016 Under training PC/1602 fyati Rani Das 08/08/2026 PO/87D Devika Biswas O98 /08 / 2016 } Under traming ;
Under training Under training Under training Og /ORf2016 08/08/2016 S. Prem Kumar Vo Venkateswar
5. LPC/OLE
6.) PL/LOIO If they are willing so, then, they should give in written about the date from which their resignation shall be accepted.
bepaty Superintendent of Police (Estt} Police Headquarter"
Q The applicant preferred an application as under:
Te Deputy Superintendent af P olice (Batt) Police Headquarter Office of Director General of Police A&N {islands (Through Proper Channel) ° Sub: Rephy fo memo dt. 1O02.2017 veg Reanected Si, This ig the reference to memo dated 16.02.2017 whereby I have been fvformed that my resignation will be accepted only after denositing the salary and training expenditure, | have te place the following for your kind consideration 3 nd necessary action ag your end.
Phat yide offer of appaintment dated O2.0B.2016 the appointing authority had prescribed the terms and conditions governing the service conditions. That one of the condition at 51. No. XVUl was as under:
on "He/She has to serve In the A&N Police at least.for period of three years. In case he/she quits, he/she will have to pay training expenses." That | had accepted the appointment to the past aulicated in the offer of appointment, hut subsequently the aforesaid conditians was unilaterally changed while issuing the order of appointment wherein it has been indicated thac not anky the training expenditure but the salary paid during this tenure will have to be paid back.
+f Constable (Executive) based on the terms and canditions 'he addition of the condition as regards paying back the salary is a canditen incorporated later and in the event the salary is required to be repaid in such event it-would amount to discharging the duties without any Salary and the concept of werk without pay carmot be accepted. In the event we are com pelled to reply the salary that would amount to hardship to me and my family members. it is thas requested that the memo dated 16.02.2017 may te altered to the extent as regards repayment of training expenditure which Iam willing to payback, Hope needful will be dane in this matter. As | required for duty within 30 days from the date of issue of offer of eppointmant which was issuenl TLO2.2017 as such it is requested that the issue may kindly be resolved atthe earllest, ate Thanking yr Thanking yen VOuULS hfally, Dipika Biswas"
The following Memo dated 13.04.2017 proposing recavery, was issued in response, extracted as under:
"Phe following police personnel who tender resignation are hereby directed to deposit the amount noted against their names with the Accountant Police Line office Immediately and submit the copy of receipt to the Estt. Section PHQ for issue of format resignation arder:
S | Rank, Ne & { Date ori Faring of | Rate | Training = | Salary paid | Total a. T2OS4.20R7 day e {Col 4+5} he recavared {Gol or?) oD Rea) enrolment training wpte { per expandituy ; upto T2AL? Amount te} 2 2 3 va Sn: 9 g bt PC#1395 Pggmea | 2alidays Zoaf- {SLOSS | 248.493/- PuGaIL Abdul Shakir tw PC/L H8/08/18 B4Bdays | 20G/- | 51,088/- 248,183 /- B,0G.271/-
Durgasi Vijaya a Upcse602 fyati | OG 8/26 Bapdays | 20G/ | S108e/- 248,193 /+ 29927 : Raci Bas . .
& | PESTO Devika | 08/08/16 BiGdays | g0O/- | SLGSS/- 2,48 183/- 2G 27 Le Bigws i Vs PBC/ROA SL OR YO8/18 3yddags PT 206F VSLORsy- 248188 | 299,27 Ly- Prem Keyear saad
5) POPIOSOY, UB/U8/IS daidays | 206/- | SLOBS/- | ZA8,183/- 299.271) Venkataswar g Deputy Superintendent of Police (Esttt) Pollce Headquarter"
Further vide memo dated 17.04.2017, the applicant along with others were asked by the DSP (Estt.) Police Headquarters to deposit the following SIMOUITES ¢ .
S) . "MEMO in continuation of this office Memo No, DGR/Rstt, /Folie/2017/1946 dated T30L207 7, the follawing police persannel wha tender resignation are hereby directed ta deposit the remaining amount (Le. treining expenditure and salary paid fram 13.04.2017 ta 16.04.2017) noted against their names with the Accountant Pulice Line office immediately and submit the copy af receipt to the Esti. Section PAG for issue of fermal resignation order.
Rank, Na & : Period of per | Tratiing Salary palduyyto: } Total 5 Haas tralalng expenditure | TRAIT Amwoart to Mo. wal T3417 (fol 344} be ite Lh? ; recovered {Cal +6) pos rsad 2days 208 f- B24f. 3935/- ee se Abdul Shakir Pee? d days 206 /- g24/ 8935 / A759.
Duymasi Viva PCS LS02 Tyost 4 days 208/- S47 » B9S5/- 4759 /- Rani Eas eee ---- vd POSS7D Devike 4 day 206/- 824/ 3935 /- 4759 /- Bias
3. ApS 206 /- Bef S935 f+ 4759 f
6. POs TGR) Yo tt days 206/- Bay 3935 /- 4759 f- Vor kateswar Rag Deputy Superintendent of Police (Rsttt) Police Headquarter"
lt was only after she had depasited such amount that her resignation was accepted, as under:
"Resignation off Conseqnuent on their appointment to the past of Lower Grade Clerk under ANN Administration the resignation tendered by following employees are accepted with affect from 17.04.2017 (8 //N}.
SL No. i Rank & No, Name i. PC/LOLE S. Prem Kamar 2 Pess70 | Devika Biswas
3. PCPLLEY Durgasi Vijaya As per condition No. vt of the Appennoment Order No. 2402 dated 4° August 2016 each af them have deposited @ sum af Rs. 2 odon0/~ (Rupees T hree lakh four thousand thirty only) ta Accountant, Pofice in eu of salary and training exper iture. They are deposited their belt, identity curd , arms, ammunition ond other Govt. properties issuer fo them with OMS Palice Line and cleared the Mess dues with the fess In charge at PTS Prothrapur, They are hereby refieved' from Andaman and Nicobar Police Farce wef T7ALOT? (E/N), This fgsues with the approval o f Competent Authority. "
10. 'The applicant would claim for a refund. The respondents would categorically deny the claim alleging that:
cae He applicant had fled this Instant QA. No.351/356/2020 along with M.A. for co ndoning delay of 680 betore this Hon'ble Tribunal."
To counter the applicant's claim about applicability of the ratio of \ Union of India & Ors. V. Tarsem Singh reported in 2008 4 ICR (SC) 4, and the decision of the Hon'ble High Court in WPCT No, 396 of 2016 (Shri S.C, Suresh V. The Union of India & Ors. dated 18/01/2017, the respondents would assert that "the ruling quoted by the applicant has no application in her ease, Barter, O02 Police Constables who were appointed slong with this r applicant had approached this Hon'ble Tribunal by filing 03 separate Original being O.A. No. 351 /933/2017 (Shri s Prem Kumar Vs- Union of india & Ors.}, OVA. No. 351/934 /2017 (Shri ¥. Venkateswar Rao Vs- Union of india & Ors. and O.A, No. 351/935/ 2047 (Shri Abdul Shakir -¥s5 Union of india & Ors.J, in a time bound manner and this Hon'ble Tribunal had disposed of these matters wide Order dated 06/07/2018. Subsequently, the A ® N Administration had challenged the Order dated 06/07/2018 passed by this Hon'ble Tribunal before the Hon'ble High Court of Caleutta Circuit Bench ar Port Blair which was dismissed by the Hon'ble Court on 16/07 /2019.
\ WW Accordingly, the A & N Administration had released an amount of Rs. 2418/ each In respect of salaries recovered from 03 recruit Police Constables of A & N_ Police Department. The applicant sub mitted her resignation on 13/02/2017 and she was relieved on 17/04/20 L7. The applicant in her instant MLA, has cited a delay of 680 days though it has delay.
for about 699 days till filing of said OA along with M.A before this Registry of the Hon'ble Tribunal. it is also a fact that the applicant was appointed and resigned the said post along with aforesaid 03 Police Constables who earlier approached this Hon'ble Tribunal within time by filing 05 separate Original Applicatians. The applicant has not approached this Hon'ble 'Tribunal along with the above 93 Police Constables/colleagues who were appointed and resigned their pasts consequent to their appouitments in various ather posts under A@N Administration. In this Instant case of the applicant the maxim Vigilantibus, pon derm jentibus, jura sub-veniunt' seems appropriate and is appropriate in view of prevailing circumstances and submissions made by the respondents in the preceding paragraphs."
11. The vival contentions were noted, In view of the rival conte ntions, the issue that requires determination is whether the applicant, after a delay of 680/699 days Is entitled to equitable relief as granted by this Tribunal to the rene fy applicants In OA. 9S3/ POL? and others.
12. In GA. 933/17 this Tribunal on 06.07.2018 held ; Even Where te respondents have erred, however, is in claiming the refund of the tenure salary without any provision of supporting rules ar regulations in thig regard. The respondents, during their eral subaissians oS weil as in their pleadings has not been able to substantiate that there are @ny fuCs for confiscation of the salary ewned during the entire semice Tenure of the eomlovee during arabation and in the ghsence of ary requiatians or statute. We are constrained to canclude that recovery of salary for the entire tenure of service Ja nok in. gecordance with jaw. A Accordingly, we direct that the respondents wil! refund te the applicant thet part of the salary which Is not supported by provisions of clouse 6.15 of the A&N Police Manual, 1863 fas amended) and aisa clause xiv and xvill of the offer letter. AS a 4 settied principle of law that when a@ candition has not been incorporated in the offer letter, £ cannot be incorporated at the stage of issue of formal appalaiment after geceptance of the offer by the prospective employee. While it is a foct thot the apaticant had jained unconditfonally without objecting to clause V! of his appointment letier, the anus diso fies, on the resooadents to ensure that the appointments letters are issued in gecordence with law."
Hon'ble High Court in WRCT Na. 157 of 2019, on 16.07.2019 upheld the said order dated 06.07.2018, in the following manner:
The short question trot arises for consideration bere is as to the interoretotion of a clause incarnorated in the letter of appointment issued to the first respondent of the tine of his engagement as a police constable, XRNNANKENAN AXKNNANKNNSN XNXNXENXSNNNK The Tribunal hes upheid the first respondent's cantention on the ground iat it was the consistent practice that only two months' salery would be sought by wey of refund before oceeptance of any votimely resignation within three years of agnginiment. The Tibunefl also found that the relevant provision in the Police Menual has not given the relevant authority ta the Administration te demand any further refund, in view ef such findings, which appear to be jo eccordance with the Police
- Manual, there js no question of interfering with the judgment and order, impugned dated July 6, 2018. However, nothing in such order will prevent the Police Manual belog amended appropriately and far the Administration ta prospectively seek higher refund in accordance with the amendment to the Palice Manual."
The decision as it appears was not one falling in the realm of a decision in personam. The respondents' authority te recover an amount in addition to what they were authorized to recover was adjudicated upon and has been conclasively decided,
13. In Tarsem Singh's case supra, Hon'ble Apex Court held as under:
iy MR. Gupta vs, Union of india {1995 (5) SCC 623} the appellant approached the High Court in 1989 with a grievance in regard to his initial pay fixation with effect from 18.1978, The cloioy wes refected as it was raised after 17 veurs. This Court applied the arincigles of comtinulng wroag and recurring wrongs ond reversed the decisian. This Couct held: (SCC pp. 829-30, para §} "5 aimminrninnmatfie appellont's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, bot he would be entitled to praper fixation of is nay in occordance with rules and to cessation of a cantinuing wrang if on merits his claim is justified.
NANKNAKNARA NKNANXXNESKSX MRXRNRANKN 3 6. in Shiv Gass v. Union af indig this Court held:
AXSXSHXEN XSNNNNN NAR XNHNNNSXNN * natithen wrt jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime Js an important factor which afse weights with the High Court in deciding whether or not ta exercise such jurisdiction".
NESXBNXKX NXNXNNENKSXS NXSNKNKNXSY . "e, pugs pigsecuanuenencess cucaeeeae? Where o aervice related claim is based on a continuing wrong, relief can be granted even if there is a long deluy in seeking remedy, with reference ta the date an which the continuing wrong commenced, if such cootinujng wrong creates a continuing source of injury. But there ig can exception fo the esception. if the grievance is in respect of any order or administrative decision which related te or affected several others also, and if the re opening of the issue would affect the settled rights of third parties, then the claim will pot be entertained. ow. "
"F sawasinictaes to urrears to anly three years before the date of writ petitian, ar fram ae the date of demand to date of writ petition, whichever was 1esSeh 0s The reliefin the case was para 8.
15. In Esha Bhattacharjee vs Mg.Commit.Of Raghunathpur Nafar 201 3PL 2) 8c 649, Hon'ble Apes Court considered the following decisions: J m {i} Collector, Land Acquisition, Anantnag and another v. Mst. Katifi and others. | fi] Improvement Trust, Ludhiana v. Ujagar Singh and others. {iil} Balwant Singh (dead) v. Jagdish Singh and others, In Balwant Singh, the Hon'ble Court referred to the pronouncements in Union of India v. Ram Charan, PAK. Ramachandran v. State of Kerala and Katari Suryanarayana v. Koppisetti Subba Rae and stated thus:- "35 We may state that even if the term "sufficient cause" has to receive liberal construction, if must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing Iberai construction sormaily is to introduce the concept of "reasonableness" as if is understoad in its generul connotation.
28, The law of limitation is a substantive law and has definite consequences an the right and obligation of a party to arise. These principles should be adhered to ond agaied appreariotely depending on the facts and circumstances of a given case. Once a valuable right bas accrued in favour of ane party as a result of the failure of the other party to explain the delay by showing sufficient cause and its awn condict, it will be unreasonable to take away that right on the mere asking of the analicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to bath parties equally. a4 Then alone the ends of justice can be achieved. if a party has been thoroughly negligent in immaementing its rights and remedies, it will be equally unfair ta deprive the other party of a valuable right that has accrued ta it in iow as a result of his acting vigiantly."
{iv} Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, where Hon'ble Judges referred to the pronouncement in Vedabaiv. Shantaram Baburao Patil, wherein ft was opined that "9 distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the ferrner case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises".
NEXMXNAXANARNA ANKRARNKRARAKN fF 24, What calour the expressian "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide noture af the explanation, [f the court finds thet there Aus been eo negligence on the part of the epplicant.gnd the cause shown forthe delay does nat lark bone fides, then it may candone the delay. Hon'ble Court held :
"15, Fron the aforesaid authorities the principles that can broadly be culled out are:
i} There should be ¢ Hberal. pragmedtic, fustice-oriented, non- pedantic approach while dealing with an application for condonatian of delay, for the courts are not supposed to leaatise injustice but are obliged to remove fojustice. " #) The terms "sufficient cause" should be understood in thelr proper spirit, philosaphy and purpose regard being had te the fact that these terms are basically elastic and are to be apoliedin proper persuective to the obtaining fact- situation. if} Substantial justice being paramount and pivotal the technical consideratians should nat be given undue and uncalled for emphasis, ,
iv) No presumption can be attached to deliberete cousation of delay but, gross negligence an the part of Hie counsel ar iitigant is to be taken note of vi Lack of bore fides inngutable to @ party seeking condonation of delay is a significant and relevent fact.
vil itis ta be kent in nilnd that adherence ta strict proof should not affect public justice 'and couse public mischief because the courts are required to be vigilant se that in the ultimate eventuate there is no real failure of justice. vii} The concept of fiberal approach has te encapsule the conception of reasonableness and it carmatbe allowed a totally unfettered free play. vill} There is adistinetion between inordinate delay and a delay of shart duration of few days, for to the former dactrine of prejudice is attractéd whereas to the fatter Rt may not be attracted, That eport. the first one warrants strict aporoach whereas the secand calls for a liberal delineation.
ix) The conduct, Behaviour and attitude of a party refating to its jnaction or negligence are relevant factars to be taken into cansideration, {t is so as the fundamental principle is that the courts are required to weigh the scale af balance of justice in. respect af both parties and the said principle cannot be given a tote! go by in the name of Hberal approach.
x) If the explanation affered is concocted or the grounds urged in the application are fancifid, the courts should be vigilant nat to expose the other side unnecessarily to face such a fitigetion.
xi} it is ta be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse (0 the technicalities of law of limitation. xif) The entire gemut of foets are to be carefully scrutinized and the approach should be bosed an tie paradign of judicial discretion which is Founded an objective reasoning and not on individual perception.
PP PPPEE LADLE LAA LAALAPAA APPEAL A» siti) The State or a public body or an entity representing collective cause should be given seme acceptable intitude.
46. To the aforesaid principles we muy add same more guidelines taking note af the present day scenarin, They are: ~ a} An application for condanation of delay should be drafted with careful concern ad not in a half hazard reanner ferbouring she notion that the courts are required to condone delay an the bedrack of the principle that adjudication af a lis on merits is seminal to justice dispensatian system.
b) An application for condanation of delay should not be dealt with In q routine pranner on the base af individual philosophy which is basically subjective,
c) Theugh no precise formula can be laid down regerd being hed to the concept of judicial discretion, yet a canscious effort for achieving cansistency and collegiality of the odjudicatory Systern should be made as that is the ufllmate institutional matto. d} The increasing tendency to perceive delay ag a nan- serious matter and, hence, lockadwisical prapensity cun be exhibited in a nan-challant manner requires to be curbed, af course, within legal parameters."
16. Inthe aforesaid backdrop we discerned as under:
G) The applicant, vide her representation dated 24.02.¢ O17 had asked for refund of the salary, as wnder:
"That one of the condition at No. XVHI was as under "He/She has ta serve in the A&N Police at least for period of tires years. in case she quits, fefshe will have to pay frajning expenses. * Phat f hod accested the appointment to the post af Constable(Executive) based on the eepms and conditions indiceted in the offer af appointment, but subsequently the afaresaid conditians was uellaterally chonaed while issuing the order of gppomtinent wherein it has been indicated that not only the training expenditure but the salary paid during this tenure will hove to be pala bark, The addition of the condition es reyurds paying back the soflary is a condition fncerporated later and in the event the salary is required to be repaid in such event if would amount te dischorging the duties udthout any salary and the concept of work 16 without pay cannot be accepted. In the event | am compelled to reply the salary that would amount to hardship to me and my family members. It is thus requested that the memo dated 16.02.2017 may be altered to the extent as regards repayment of training expenditure which | am willing to payback. Hope needful be done in this matter. As ! required for duty within 30 days from the date of issue of offer of appointment which was issued 11.02.2017 as such it is requested that the issue may kindly be resolved at the earliest."
The respondents have not denied receipt of the said representation in 2017 itself.
(ii) The applicant in OA. 933/2017 staked her claim in 2017 which was disposed of in 2018 and affirmed on 16.07.2019, in WPCT No. 157 /2019. This MA has been preferred in March, 2020. The OA has been filed citing the decision in OA. 933/2017 and in WPCT No. 157/2019 and to seek benefits thereof. Therefore, apparently, there is no deliberate inordinate delay in approaching this Tribunal to seek benefit of an order.
(iii) The applicant has neither misrepresented, nor lack bonafide in claiming refund that has been allowed by this Tribunal to others similarly circumstanced. This Tribunal has adjudicated upon the respondents' authority to demand from the selected candidates an amount in addition to what their ~ appointment terms envisaged, to release them from their rolls. If the other selected candidates deserved a refund, for parity of reasons the applicant would deserve the same relief.
(iv) No third party right has been created in the meantime and the delay attributable to the applicant, even if condoned will not cause serious prejudice to the respondents. Normally, a money claim can be legally instituted within three years of cause of action.
(v) Evidently and inarguably, identically placed employees have been saddled with recovery only to the extent and in terms of their offer of appointment. The salary wrongly deducted has been allowed to be refunded he eg tte eatin dletde cde Op ede -- --
3 sag wont adlaiig ht cn dg Tee a yes Day Pgs cuties auitt adit wank i ci Bani ede? AS aay thd was absent in the offer. Ideally there cannot be dissimilar treatment in the matter of refund.
(vi) In K. C. Sharma vs. Union of India, in a case where a relief of seeking benefit of a judgment was rejected by Tribunal as time barred, albeit in a pension matter, such order was set aside by a Constitution Bench.
17. Since the present applicant seeks benefit of refund as allowed to others, in 2018 and 2019, and has approached this Tribunal in 2020, after she preferred an application in 2017 itself she could not be held guilty of latches, . The delay in preferring OA deserves to be condoned. MA is therefore allowed.
18. Inview of the discussions supra, the OA is disposed of with the direction to consider the claim of the applicant in the light of OA. 933/2017 and issue "3 ' te e *\ appropriate order within 3 months.
Neer eed ~ WNocosts.
at (Dr, Nandita Chatterjee) (Bidisha Banerjee} Member {A} ; Member (J) pd