Central Administrative Tribunal - Delhi
Narender Singh vs Govt. Of Nctd on 5 October, 2015
OA 1859/14 Narender Singh v. GNCTD & anr.
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1859 OF 2014
New Delhi, this the 5th day of October, 2015
CORAM:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
&
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.................
Narender Singh,
Aged around 46 years,
s/o Om Pal Singh, Beldar, Mali,
R/o E-5/1,
East Gokulpur,
Delhi 110094 ........ Applicant
(By Advocate: Mr.Harpreet Singh)
Vs.
1. The Government of NCT of Delhi,
Through its Chief Secretary,
Delhi Secretariat, Players Building,
I.P.Estate, New Delhi
2. The Secretary & Commissioner (Dev.),
Development Department,
Government of NCT of Delhi,
5/9, Under Hill Road, Rajpur Road,
Delhi 110054
3. The Director, Horticulture Department,
GNCT of Delhi,
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11th Floor, MSO Building, ITO,
New Delhi .......... Respondents
(By Advocate:Mr.K.M.Singh)
ORDER
RAJ VIR SHARMA, MEMBER(J):
The brief facts of the applicant's case, as projected in the O.A., are that he was employed by the Horticulture Unit, Development Department, on 1.7.1986. His services were illegally terminated on 14.7.1988 by the Horticulture Department without assigning any reason. He moved the Industrial Tribunal challenging the termination of his services. The Presiding Officer, Industrial Tribunal, vide award dated 1.2.1989 (Annexure A/2), allowed his complaint and directed the respondents to reinstate him in service with full back wages along with continuity of service. In compliance with the Industrial Tribunal's award, the respondents, vide order dated 19.5.1998 (Annexure A/3), reinstated him in service. After his reinstatement, the respondents regularized his service with effect from 19.5.1998, i.e., the date of his reinstatement in service. The order of regularization of his service was never communicated to him. The applicant came to know about the date of regularization of his service when the seniority list was circulated, in which the date of regularization of his service was shown as 19.5.1998. His representation dated 8.4.2013 (Annexure A/1) for regularization of his service with effect from 10.1.1988 and for consequential service benefits failed to elicit any response from the Page 2 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
3respondents. Hence, he filed the present O.A. seeking the reliefs as aforesaid.
"(i) To call for the records of the case;
(ii) To hold the decision of the respondents in treating the
applicant as being regularized w.e.f. 19.05.1998 as discriminatory in nature and quash and set aside the same;
(iii) Consequent to (ii) above, hold the applicant entitled for regularization w.e.f.01.10.1988 as has been accorded to the similarly placed counterparts of the applicant;
(iv) To grant all consequential benefits to the applicant arising from the grant of relief (iii) above such as seniority, grant of ACP, promotions etc. from the date when other similarly placed employees have been granted the same;
(v) to grant the cost and expenses of the OA in favour of the applicant; and,
(vi) To grant any other relief as deemed just and proper by this Hon'ble Court."
1.1 In support of his case, the applicant has contended that in compliance with the directions issued by the Hon'ble Supreme Court in the case of Shri Naider & Anr. v. Delhi Adminsitration & Anr., W.P. Nos. 6909-10 of 1983, decided on 29.9.1988 (Annexure A/4), and Rattan Lal & ors, etc. v. Lt. Governor & ors, etc., W.P. Nos.98, 99, 216, 938 and 940 of 1988, decided on 6.3.1990 (Annexure A/5), about 1250 casual employees of the Forest Department were regularized in service with effect from 1.10.1988, and they were paid difference in salary with effect from that date. Page 3 of 22
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1.2 Some employees of the respondent-Department approached the
Tribunal in O.A.No.3539 of 2011, decided on 2.3.2012 (Pramod Kumar and others v. GNCT of Delhi & others), seeking a direction to the respondent-Department to treat them as regularized in service with effect from 1.10.1988, instead of 1.4.1991, and to grant them seniority from 1.10.1988 as in the case of the similarly placed counterparts working in the Forest & Wildlife Department, with all consequential benefits. In the said case, the Tribunal directed the respondents to treat the applicants as regularized in service with effect from 1.10.1988 and to grant them seniority from the said date as in the case of the similarly placed counterparts working in the Forest and Wildlife Department, with all consequential benefits except back wages.
1.3 It has also been contended by the applicant that having put in more than one year of service as on 1.10.1988, he was entitled for regularization in service in terms of the directions issued by the Hon'ble Supreme Court in Shri Naider's case (supra) and Rattan Lal's case (supra), and the direction issued by the Tribunal in Pramod Kumar's case (supra).
2. Opposing the O.A., the respondents have filed a counter reply. It is stated by the respondents that the applicant himself had left the service on his own w.e.f. 14.7.1988. In Shri Naider's case (supra) and Rattan Lal's case (supra), the Hon'ble Supreme Court directed regularization of Page 4 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
5those daily-wage labourers/workers who were working as on the date of the judgment, i.e., 29.9.1988, and had continuously worked for nearly 10 years as casual labourers without any break. In compliance with the directions of the Hon'ble Supreme Court, budgetary provision was made, and posts of Labourer were created, and the cases of daily-wage labourers, who were eligible and fit for regularization in service, were considered, and their services were regularized with effect from 1.10.1988. Before regularizing their services, the medical examination and verification of character antecedents, etc., were conducted. Finally, services of 1250 daily wage labourers were regularized with effect from 1.10.1988. As regards the direction issued by the Tribunal in Pramod Kumar's case (supra), the respondents have sated that the applicants in that case were regularly working as daily-wage labourers as on 29.9.1988, and their services were regularized during the year 1991/1992. As the applicant in the present case had left his service on his own with effect from 14.7.1988 and was not borne on the muster roll of daily-wage labourers as on 1.10.1988, the decisions of the Hon'ble Supreme Court in Shri Naider's case (supra) and Rattan Lal's case (supra), and the decision of the Tribunal in Pramod Kumar's case (supra), are not applicable to his case. In the above view of the matter, the respondents submit that the O.A. filed by the applicant is liable to be dismissed as being devoid of merit.
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3. In his rejoinder reply, the applicant has reiterated more or less the same averments and contentions as in the O.A.
4. We have heard Shri Harpreet Singh, learned counsel appearing for the applicant, and Mr.K.M.Singh, learned counsel appearing for the respondents.
5. Shri Harpreet Singh, the learned counsel appearing for the applicant, took us through the award dated 1.2.1989 (Annexure A/2) passed by the Presiding Officer, Industrial Tribunal No.1, Delhi, in Complt. I.D.No.17 of 1988, and submitted that the termination of service of the applicant was declared as illegal, and the Industrial Tribunal directed the respondent-Department to reinstate the applicant with back wages since the date of termination of his service. In compliance with the direction of the Industrial Tribunal, the respondent-Department having reinstated the applicant in service, the applicant's position as a daily-wage labourer was restored to his original position as on 14.7.1988 with effect from which his services were illegally terminated. Therefore, on his reinstatement in service, the applicant was entitled to regularization of his services with effect from 1.10.1988 in accordance with the decisions of the Hon'ble Supreme Court in Shri Naider's case (supra) and Rattan Lal's case (supra). In support of his contention, Shri Harpreet Singh, learned counsel appearing for the applicant, placed reliance on the decision of the Hon'ble Page 6 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
7Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324. 5.1 In Deepali Gundu Surwase's case (supra), the question which arose for consideration by the Hon'ble Supreme Court was whether the appellant was entitled to wages for the period during which she was forcibly kept out of service by the management of the school. The appellant was appointed as a teacher in Nandanvan Vidya Mandir (Primary School) run by a trust. The appellant was governed by the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, 'the Rules') framed under Section 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, 'the Act'). The Hon'ble Supreme Court held thus:
"21. The word "reinstatement" has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word "reinstate" means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word "reinstatement" means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word "reinstate" means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word "reinstatement" means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word "reinstate" means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black's Law Dictionary, 6th Edition, "reinstatement" means-
"To reinstall, to re-establish, to place again in a former state, condition, or office; to restore to a state or position from which the object or person had been removed."Page 7 of 22
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22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.
xxx xxx
38. The propositions which can be culled out from the aforementioned judgments are:
38.1 In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule. 38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is Page 8 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.9
required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages. 38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages. Page 9 of 22
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38.6 In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à- vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private Limited (supra). 38.7 The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
It was found by the Hon'ble Supreme Court that the management's decision to terminate the appellant's service was preceded by her suspension without any rhyme or reason, and even though the Division Bench of the Hon'ble High Court declared that she would be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly Page 10 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
11arbitrary and vitiated due to violation of the rules of natural justice. The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages. The learned Single Judge of the Hon'ble High Court agreed with the Tribunal that the action taken by the management to terminate the appellant's service was per se illegal, but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibited an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarters without prior approval of the Chief Executive Officer, thereby disentitling her from getting subsistence allowance, or that during the intervening period she was gainfully employed elsewhere. Therefore, the Hon'ble Supreme Court held that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous, and that the inquiry was held in gross violation of the rules of natural justice. Page 11 of 22
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12Accordingly, the Hon'ble Supreme Court allowed the appeal and set aside the order passed by the learned Single Judge of the Hon'ble High Court and restored the order passed by the Tribunal, with direction to the management to pay full back wages to the appellant.
6. Per contra, Shri K.M.Singh, learned counsel appearing for the respondents, invited our attention to the order dated 19.5.1998 (Annexure A/3) issued by the Dy.Development Commissioner, Government of Delhi, whereby in compliance with the Industrial Tribunal's award dated 1.2.1989 (ibid) the applicant was reinstated in service as a labourer. Shri K.M.Singh also invited our attention to the representation dated 8.4.2013 (Annexure A/1) purportedly made by the applicant to the respondent-Department claiming regularization of his services with effect from 1.10.1988 with all consequential benefits including pay fixation, and promotion. It was submitted by Shri K.M.Singh that as the applicant was neither borne on the muster roll of daily-wage labourers, nor was he working as on 1.10.1988, and the applicant, having abandoned the daily wage service with effect from 14.7.1988, is not entitled to regularization of his services with effect from 1.10.1988 on his reinstatement in service on 19.5.1998. It was also submitted by Mr. K.M.Singh that if at all the applicant was aggrieved by the order dated 19.5.1998 (Annexure A/3) reinstating him in service and regularizing his service with effect from 19.5.1998, the cause of action had arisen on 19.5.1998, and that the applicant having failed to either approach Page 12 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
13the departmental authorities in the matter of regularization of his services with effect from 19.5.1998 within a reasonable period thereafter, or to approach the Tribunal within the prescribed period of limitation, the claim made by him in his representation dated 8.4.2013 (Annexure A/1) and in the present O.A. is grossly barred by delay and laches. Therefore, the O.A. is liable to be dismissed.
7. We have bestowed our anxious consideration to the facts and circumstances of the case, and the rival contentions of the parties.
8. It is the admitted position between the parties that the applicant was engaged by the Horticulture Department as a daily wage labourer on 1.7.1986, although copy of any order containing the terms and conditions of such engagement of the applicant has not been produced before the Tribunal by them. In support of his claim that his services were terminated by the Horticulture Department without assigning any reason with effect from 14.7.1988, the applicant has not produced before us a copy of any order issued by the Horticulture Department to that effect. It is the case of the respondents that the applicant had voluntarily left the service with effect from 14.7.1988. But as would appear from the award dated 1.2.1989 passed by the Industrial Tribunal in Complaint I.D.No.17 of 1988, at the instance of the applicant and some other daily wage labourers engaged by the Horticulture Department, a dispute, vide I.D.No.50 of 1988 was referred to the Industrial Tribunal No.1, Delhi. The reference made to the Industrial Page 13 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
14Tribunal was whether the non-regularization of the workmen, namely, the applicant and others, was legal and/or justified and if not, what directions were necessary in that respect. During pendency of the said dispute, the applicant made a complaint before the Industrial Tribunal, vide Complaint I.D.No.17 of 1988, that his services were terminated with effect from 14.7.1988 without assigning any valid reason. In paragraph 3 of the award dated 1.2.1989 (ibid), it was observed by the Industrial Tribunal that notice was issued to the management, and in spite of service of notice, the management failed to appear, and on 15.11.1988 the case was ordered to proceed ex parte. On 20.12.1988 the applicant offered his examination-in- chief by way of affidavit, and argument of the counsel for the applicant was heard ex parte on 24.1.1989. Paragraph 5 of the award dated 1.2.1989(ibid) reads thus:
"5. In Bhavnagar Municipality case. The Supreme Court held that when the matter under reference was conversion of temporary status of employees into permanent status if the management during the pendency of such a dispute retrenches their services without permission of the Tribunal then it will be a violation of Section 33 of the I.D.Act, 1947. This ruling is fully applicable to the facts of this case. The termination of services without assigning any reason was clearly illegal and since this termination was done in contravention of Section 33 this complaint is legally maintainable. The management should reinstate the workman and pay his back wages since the date of termination. The award is made accordingly."
It is not understood as to how the Horticulture Department of the Government of NCT of Delhi could be treated as 'employer' or 'industry', and the applicant, a daily wage labourer engaged by the Horticulture Page 14 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
15Department, could be treated as 'workman' within the meaning of the Industrial Disputes Act, 1947. It is also not understood as to how the Horticulture Department of the Government of NCT of Delhi did not respond to the notice issued by the Industrial Tribunal. However, in compliance with the ex parte award dated 1.2.1989 (Annexure A/2), the Dy.Development Commissioner, Government of NCT of Delhi, issued order dated 19.5.1998 (Annexure A/3), which is reproduced below:
"ORDER In pursuance of the award dated 01.02.89 passed by Sh.B.B.L.Hajelay, Presiding Officer, Industrial Tribunal No.1, Delhi in I.D.No.17/88 between the workman and the management of Horticulture Department, Delhi Administration, Delhi, Sh. Narender Singh is hereby reinstated in his service as a labourer in the O/o Director (Horticulture), Govt. of Delhi. He will work in the office of the Director (Hort.) but will draw his salary from the office of Joint Director (Agr.)."
From the above order, it transpires that the applicant was reinstated in service as a labourer. There was no mention in the above order that the applicant was reinstated in service with effect from 14.7.1988 when, according to him, his services were terminated by the Horticulture Department. There was also no whisper in the order dated 19.5.1998 (ibid) about payment of back wages to the applicant with effect from 14.7.1988. The applicant having never agitated the issue of payment of back wages from 14.7.1988 by approaching the Industrial Tribunal, which passed the ex parte award dated 1.2.1989(ibid), cannot now be allowed to agitate the said Page 15 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
16issue in the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
9. After about 15 (fifteen) years of passing of the order dated 19.5.1998 (ibid), the applicant appears to have made a representation dated 8.4.2013(Annexure A/1) requesting the respondent-Department to regularize his services with effect from 1.10.1988 with all consequential benefits including pay fixation, seniority, promotion, etc. Thereafter, he filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, claiming regularization of his services with effect from 1.10.1988 with consequential benefits, such as, seniority, grant of ACP promotions, etc.. It is his contention that no order of regularization of his services was ever issued by the respondent-Department, and he came to know from the seniority list circulated by the respondent-Department that his services were regularized with effect from 19.5.1998. The applicant has not filed a copy of the seniority list which is stated to have been circulated by the respondent-Department. The respondents have also not made any averment as to whether any such seniority list was circulated, and whether the applicant's representation dated 8.4.2013(ibid) was received by them. When the applicant has been receiving pay and allowances and other benefits as a regular employee with effect from 19.5.1998, it is unbelievable that he came to know about the date of regularization of his services only when the seniority list was circulated in 2013. Thus, it has to be inferred Page 16 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
17that although the applicant was aware about the date of regularization of his services with effect from 19.5.1998, he preferred not to make any representation to the departmental authorities to regularize his service with effect from 1.10.1988. The applicant claimed regularization of his services with effect from 1.10.1988, instead of 19.5.1998, for the first time by making a representation to the respondent-Department on 8.4.2013, i.e., after about 15 years of regularization of his service. The cause of action, if any, had arisen on 19.5.1998 when he was reinstated in service and his services were regularized. If at all he had any grievance with respect to non- regularization of his services with effect from 1.10.1988, the applicant ought to have approached the departmental authorities within a reasonable period thereafter, and approached the Tribunal by filing an original application under Section 19 of the Administrative Tribunals Act, 1985, within the prescribed period of limitation, in the event of his being unsuccessful in getting his grievance redressed in the hands of the departmental authorities. Having not done so, his claim for regularization of his services with effect from 1.10.1988 with all consequential benefits, such as, seniority, pay fixation, promotion, etc., is clearly hit by the doctrine of delay and laches.
10. In Pramod Kumar's case (supra), neither the question of delay and laches on the part of the applicants in approaching the departmental authorities or the Tribunal was raised by the respondents, nor was the said question decided by the coordinate Bench of the Tribunal, although Page 17 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
18admittedly the claim of regularization of their service and consequential benefits was made by the applicants after 20 (twenty) years from the date when the cause of action in the said case had arisen. Therefore, the decision of the coordinate Bench of the Tribunal in Pramod Kumar's case (supra) does not come to the aid of the applicant.
11. In State of Karnataka & Ors. v. S.M.Kotrayya & Ors., (1996) 6 SCC 267, the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached the Hon'ble Supreme Court. Their Lordships, after considering the matter, observed as under :
"........it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-section (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub- section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay."
12. In Jagdish Lal & Ors. v. State of Haryana & ors. (1997) 6 SCC 538, the Hon'ble Supreme Court reaffirmed the rule if a person chose Page 18 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
19to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit, and that the delay disentitles a party to the discretionary relief under Article 226 or Article 32 of the Constitution of India.
13. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades, the respondent-workmen had remained silent, mere making of representations could not justify a belated approach.
14. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115, the Hon'ble Supreme Court observed thus:
"Every representation to the Government for relief may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department.
Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim."
15. In Union of India and others v. M.K. Sarkar, (2010) 2 SCC 59, the Hon'ble Supreme Court, after referring to C. Jacob's case (supra), has ruled that when a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision Page 19 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
20cannot be considered as furnishing a fresh cause of action, or reviving the 'dead' issue or time-barred dispute. The issue of limitation, or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass and others, (2011) 4 SCC 374, the Hon'ble Supreme Court reiterated the principle stated in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, and observed that as the respondents preferred to sleep over their rights and approached the Tribunal in 1997, they would not get the benefit of the order dated 7.7.1992.
17. The Hon'ble Supreme Court in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, condemned entertaining of the Original Applications by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals Act 1985. In the said order, following observations were made:
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:Page 20 of 22
OA 1859/14 Narender Singh v. GNCTD & anr.21
"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 he had sufficient cause for not making the application within such period."
A reading of the plain language of the above reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in Page 21 of 22 OA 1859/14 Narender Singh v. GNCTD & anr.
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clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised, but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant."
18. In the light of our above discussions, we hold that the claim as raised by the applicant in the present O.A. is clearly barred by delay and laches. Accordingly, the O.A. is dismissed. No costs.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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