Allahabad High Court
Radha Raman Kulshretha vs State Of U.P. on 14 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 204
Author: Saurabh Lavania
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED Court No. - 9 Case :- SERVICE BENCH No. - 1823 of 1985 Petitioner :- Radha Raman Kulshretha Respondent :- State of U.P. Counsel for Petitioner :- G Kalwani,Anita Tiwari,G.Kalwani,Manish Kumar Pandey,S.Kumar,Smt. Nalini Jain Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Ms. Anita Tiwari, learned Counsel for the petitioner and Sri Mayank Singh, learned State Counsel for the respondents.
The present petition has been filed for the following main relief:-
(a) to issue a writ, order or direction in the nature of CERTIORARI quashing the impugned orders dated 23.12.1961 (Ann. 3) and dated 13.12.84 (Ann. 6) to the writ petition;
(b) to issue a writ, order or direction in the nature of MANDAMUS commanding the opposite parties 1 to 3 to treat the petitioner into their services with fully salary and also is entitled other benefits like annual increments, leave, seniority and promotion alike."
By means of the present petition the petitioner has challenged the impugned judgment and order dated 13.12.1984 (Annexure No. 6 to the writ petition) passed by the U.P. State Public Services Tribunal, Lucknow (in short "Tribunal") in Claim Petition No. 136/F/V/1982 filed by the petitioner as well as the order dated 23.12.61 (Annexure No. 3 to the writ petition), by which the services of the petitioner was terminated.
Brief facts of the case are that on 5.5.1958, the petitioner was initially appointed as a temporary Junior Clerk in the Uttar Pradesh Government Roadways Department under the control of the State Government. Thereafter, in the month of January 1961, the petitioner was transferred from Agra to Kanpur and he joined his duties at Kanpur. While he was working at Kanpur he received an information of illness of his wife therefore, he applied for ten days' earned leave and after granted permission from the Regional Transport Officer, Kanpur, he proceeded for ten days' leave. Thereafter, the petitioner fall ill and and sent an application for extension of leave alongwith medical certificate to the Regional Transport Officer, Kanpur and thereafter the petitioner extended his leave from time to time. Thereafter, on 23.12.1961, Regional Transport Officer, Kanpur, terminated the petitioner. Thereafter, the petitioner made a representation, which was also rejected.
In view of the said factual background, the petitioner for redressal of his grievance, approached before the Tribunal by means of Claim Petition No. 136/F/V/1982 (Radha Raman Kulshretha Vs. State of U.P. and others). Thereafter, respondents filed the counter affidavit before the Tribunal, stating therein that petitioner was initially appointed as a temporary Junior Clerk thereafter, in the month of January 1961, the petitioner was transferred from Agra to Kanpur and he joined his duties at Kanpur. On 25.01.1961 the petitioner proceeded on leave on the pretext that his wife is ill and subsequently he remained on leave on the ground that he was ill. Lastly, by an order dated 23.12.1961 his services were terminated. The relevant portion of the order dated 23.12.1961 reads as under:-
"In accordance with the terms and conditions of his employment, the services of Sri Radha Raman, temporary Junior Clerk, Regional Transport Office, Kanpur will stand terminated on the expiry of one month from the date of service of his notice on him. "
In the counter affidavit filed on behalf of the respondent it has also been urged that after joining his duties at Kanpur on 25.1.1961, the petitioner started taking leave on one pretext or the other. On 23.6.1961 the petitioner proceeded on long leave and did not return on duty at all. Thus, orders for termination of his services under contractual powers were passed on 23.12.1961. During the period the petitioner remained absent he made a number of representations for his transfer to Agra or to Bareilly. The petitioner was in this way pressurizing the administration to transfer him from Kanpur.
In the counter affidavit it has been pleaded by the respondents that the reference was hopelessly barred by limitation as for 17 long years the petitioner did not move any petition to the Government, but he submitted two petitions to the Chief Minister and Transport Minister on 17.7.1980 and 4.6.1981 praying for re-employment, same was rejected by the Government on 16.11.1981 and the petitioner was informed of the same on 16.12.1981. However, from the said fact, petitioner/claimant cannot derive any benefit that his claim is within the statutory period of limitation, so the claim petition is liable to be dismissed.
On 13.12.1984, the Tribunal after considering the submission of the parties, rejected the claim of the petitioner. The relevant portion of the order dated 13.12.1984 reads as under:-
"4. We have heard the learned counsel for the parties and have examined the record of the case. In our opinion this reference is barred by limitation. The services of the petitioner were terminated by the order dated 23.12.1961. Annexure No. 3 is a copy of that order, his representation was rejected by the Transport Commissioner on May 21, 1962. Annexure No. A-1 with the counter affidavit is a copy of order. It was contended on behalf of the petitioner that he gets a fresh cause of action by the order of the government which was communicated to him on 16.12.1981. Annexure No. 6 with the petition is a copy of that communication to the petitioner. According to the opposite parties the order was passed by the government on 16.11.1981. In our opinion this order will not give a fresh cause of action to the petitioner. The petitioner was informed with reference to his letter dated 4.6.1981 that the government has decided that it was not necessary to amended the earlier orders in any way. The petitioner has not filed a copy of letter dated 4.6.1981. According to the opposite parties the petitioner had requested for fresh appointment by his above letter. It was for the petitioner to file a copy of that letter to show its contents. We may mention here that in case the services of a temporary government servant are terminated by a notice, there is no departmental remedy. Such a government servant can only make a representation to the higher authorities. The learned counsel for the petitioner relied on Rule 69 of C.C.A. Rules to show that the government has absolute power to pass any order in such a case. In our opinion Rule 69 of C.C.A. Rules does not apply in a case where the services of a temporary employee are terminated under the rules. Rule 69 will apply where any subordinate authority passes any order in exercise of powers conferred by these rules. The power to terminate the services of a temporary government servant is not exercised under the C.C.A.Rules but under the U.P. Government Temporary Employee (Termination) Rules 1975. So we don't think that Rule 69 of C.C.A.Rules helps the petitioner in any manner. The order terminating the services of the petitioner was passed in 1961 and so a suit or any legal remedy should have been sought within 3 years from that date. In any case the limitation could have been taken from the date when the representation of the petitioner was rejected by the Transport Commissioner. Certainly the limitation cannot be taken from 16.12.1981 when the petitioner was informed of the decision of the government that it was not necessary to amend the earlier orders. In our opinion this reference is hopelessly barred by limitation.
5. In view of our opinion that the reference is barred by limitation it is not necessary to go into the merits of the case. However, we shall examine the merits of the case also in case it is considered necessary.
6. The impugned order has been challenged on various grounds mentioned in para 20 of the petition. The first ground is that the impugned order should be deemed to have been waived by the action of the opposite parties. The impugned order was passed on 23.12.1961. According to the order the services of the petitioner were to stand terminated on the expiry of one petitioner were to stand terminated on the expiry of one month from the date of the service notice on him. According to the petitioner this notice was served on him on 26.12.1961 and so the period of one month expired on 25.01.1962. It was argued on behalf of the petitioner that he was granted extra ordinary leave till 26.01.1962 which means that the notice was waived. He was granted leave for one more day as his service stood terminated on 25.01.1962. we are not impressed by this argument. Annexure No.4 is a copy of order passed by Transport Commissioner on June 16, 1962. By this order the period of absence from 23.06.1961 to 26.01.1962 was regularized. He was granted leave on half average pay from 23.06.1961 to 21.08.1961. He was granted extraordinary leave without pay from 22.08.1961 to 15.10.1961 the petitioner was then granted leve on full pay on medical ground w.e.f. 16.10.1961 to 15.11.1981. From 16.11.1961 to 26.1.1962 he was again granted extraordinary leave without pay. This order was passed in order to regularize the absence of the petitoner as mentioned by us as earlier. We do not think that the notice for terminating the services of the petitioner stood waived because he was granted leave without pay till 26.01.1962 instead of 25.01.1962 this order was passed after the service of the petitioner stood terminated on 25.01.1962. The petitioner was not granted any salary for this one extra day. In our opinion it is not possible to hold the circumstances that the notice was waived.
7. The next ground taken by the petitioner is that no reason has been assigned in the impugned order of the termination and so it attaches stigma on the career of the petitioner. On this ground the impugned order was alleged to be violative of Article 311(2) of the Constitution of India. We have mentioned this argument only to reject it. It is based on some mis-conception. The order would have become stigmatic if any reason had been mentioned so in it for terminating the service. The order cna not be considered to be stigmatic if no reason has been mentioned in it. The impugned order is a simple order of termination of service, and so it can not be considered to be stigmatic.
8. It has also been alleged in the petition and argued on behalf of the petitioner that the impugned order was passed as a matter of punishment because he had taken leave on medical grounds. The contention was that in this way the order was violative or Article 311(2) of the Constitution. We are unable to accept this argument also. The impugned order is a simple order of termination of service. Three rulings cited on behalf of the petitioner was not applicable to the facts of the present case. In the case of State of Assam vs. Akshyaya Kumar reported in 1975(2) SLR 430, the services of the government servant were terminated on the ground he was absent continuously for more than five years without leave. The order was passed under F.R. and S.R. 18. It was held that in such a case notice to show cause should have been issued. Similarly in case of Jai Shankar Vs. State reported in AIR 1956 SC 492 the services of the government servant were terminated for over staying leave. The order was passed under some regulation of Jodhpur Service Regulations. In the case of Prem Shanker Gupta Vs. State of U.P. reported in 1982 LLT (Services) at page 32 of services of the petitioner were terminated on the ground of his remaining willfully absent without leave. The order was passed under Rule 157-A (4)(b) of the financial hand book Vol.2. In the case before us the impugned order does not say that the services of the petitioner have been terminated on account of petitioner's absence without leave. As shown by us it is a simple order of termination of service under the Rules. It is not the case of opposite parties that the services of the petitioner have been terminated under Rule 157-A(4)(b) mentioned above. In our opinion the above rulings do not help the petitioner on the contrary it was held by the Supreme Court in the case of State of Nagaland Vs. G.Vasantha (Supreme Court service law judgments Vol.4 at page 502) that where the services are terminated under rules of employment without anything more than Article 311 of the Constitution does not come into play. The impugned order had not been challenged before us on the ground that it was arbitrary or discriminatory. No such plea has been taken in the claim petition before Article 16(1) of the Constitution can come into play the arbitrary and discriminatory nature of termination of service must fist be established. The fact that the services of the petitioner were terminated while junior to him were retained in service does not by itself prove unequal treatment (Union of India Vs. P.S.Mone AIR 1962 SC at page 630).
9. In view of above reasons we are of the opinion that the impugned order cannot be considered to be punitive because it is a simple order of termination. In such a case Article 311 of the Constitution does not apply. We have already shown that the impugned order cannot be considered to have been waived by the opposite parties.
No other point was urged before us on behalf of the petitioner to challenge the validity of the order. This claim petition is also hopelessly barred by limitation. The reference shall accordingly be rejected."
Challenging both the orders dated 23.11.1961 and 13.12.1984, the petitioner has approached before this Court.
Learned Counsel for the petitioner submitted that the impugned order of termination, is not an order simplicitor and no opportunity of hearing was given to the petitioner, prior to passing the termination order. Therefore, the order dated 23.12.1961 is arbitrary, illegal and in violation of principle of natural justice and the same is liable to be set aside.
Learned Counsel for the petitioner further submitted that petitioner approached before the learned Tribunal after exhausting departmental remedy, but vide order dated 13.12.1984 the learned Tribunal has rejected the claim petition of the petitioner on the ground that claim petition is highly time barred The impugned order is not in accordance with law and is liable to be set aside.
In support of his submission he has placed reliance on the judgment reported in (2012) 3 SCC 178 (Krushnakant B. Parmar Versus Union of India and another). The relevant paragraphs of the judgment read as under:-
"16. In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorised absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18. In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold that the absence was wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial review in a departmental proceeding fell for consideration before this Court in M.V. Bijlaniv. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] wherein this Court held: (SCC p. 95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
In support of his submission learned Counsel for the petitioner has also placed reliance on the order of this Court in the case of Service Single No. 122 of 2009 ( Smt. Kishori Ojha Vs. State of U.P.). The relevant portion of the said order is reproduced below:-
"Further more, the opposite parties themselves by means of the order dated 20.10.1995 (Annexure-2 to the Writ Petition) have directed that the aforesaid period of absence of late husband of the petitioner i.e. 952 days are to be treated as without pay. The definite inference of the said order would be that late husband of the petitioner has been granted leave without pay for the aforesaid period of 952 days and, as such, once the period of absence of late husband of the petitioner has already been treated to be leave without pay, there is no occasion for the opposite parties to have passed the order of dismissal of late husband of the petitioner. For the aforesaid purpose, learned counsel for the petitioner has relied upon the decision of Hon'ble the Supreme Court in State of Uttar Pradesh and others v. Saroj Kumar Sinha reported in (2010) 2 SCC 772 in which Hon'ble the Supreme Court has held as under :
"27. A bare perusal of the aforesaid sub-rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the Department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a judge."
"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents."
I am of the view that the aforesaid judgment of Hon'ble the Supreme Court is squarely applicable in the present case since even in the circumstance of late husband of the petitioner not participating in the enquiry, the opposite parties have not indicated any fixing of date or time to proceed with the enquiry ex-parte. The order of dismissal also does not indicate the recording of any statement of witnesses or production of record for the purposes of determination of the absence of late husband of the petitioner. Even the enquiry report has not been brought on record by the opposite parties from which it can be seen as to whether the unrebutted evidence is sufficient enough to hold the charges proved against late husband of the petitioner.
So far as submission of learned counsel for the petitioner is concerned that the order of dismissal is not commensurate with the charge of absentism levelled against late husband of the petitioner, he has relied upon the decision of Hon'ble the Supreme Court in Krushnakant B.Parmar v. Union of India and another, reported in (2012) 3 SCC 178 whereunder Hon'ble the Supreme Court has clearly held that the charge of unauthorised absence from duty cannot be decided without deciding the question as to whether the absence is wilful or is because of compelling circumstances. It has been further held that in a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful and in the absence of any such finding, the absence will not amount to misconduct. Absence from duty without any application or prior permission may amount to unauthorised absence but it does not always be wilful and, therefore, does not amount to grave misconduct.
In the present case also, although the enquiry report is not on record but even the order of dismissal has not decided the question as to whether the absence of late husband of the petitioner from duty was wilful or because of compelling circumstances of ill-health or being admitted in the hospital. Even after husband of the petitioner produced medical certificates, the opposite parties have not held any enquiry to examine the veracity of the said documents. In absence of the said action, it can be safely assumed that the explanation submitted by late husband of the petitioner about his being seriously ill and being admitted in hospital is perfectly valid and genuine.
With regard to the submission of learned counsel for the petitioner that the punishment imposed upon late husband of the petitioner is disproportionate to the charges levelled against him, he has relied upon the decision of Hon'ble the Supreme Court in S.R. Tewari v. Union of India and another, reported in (2013) 6 SCC 602 whreunder Hon'ble the Supreme Court has held that the question of interference on the quantum of punishment has already been answered in a catena of judgments whereunder it has been held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution of India. It has also been held that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. The order impugned would, however, not be perverse only if there is some evidence on record which is acceptable and which can be relied upon. The aforesaid judgment is squarely applicable in the present case in view of the fact that the impugned order of dismissal does not indicate any evidence whatsoever against late husband of the petitioner which was looked into in the enquiry proceedings. Even the medical certificates and reply submitted by late husband of the petitioner have been completely ignored. Dis-proportionality of the punishment vis-a-vis the charges imputed against late husband of the petitioner can also be seen by application of the judgment of Hon'ble the Supreme Court in Krushnakant B. Parmar (supra) in which Hon'ble the Supreme Court has specifically held that the question of unauthorised absence from duty amounting to misconduct can be decided only after the decision on the question as to whether the absence is wilful or because of compelling circumstances. It has been further held that if the absence is the result of some compelling circumstances under which it was not possible to report for duty, such absence cannot be said to be wilful and, therefore, would not amount to misconduct whereunder dismissal from services would be effected.
In view of the material on record clearly establishing the fact that late husband of the petitioner was seriously ill and was undergoing treatment at a Government Hospital against which no evidence was produced in the enquiry proceedings, it can be safely assumed that late husband of the petitioner was under compelling circumstances due to which he could not report on his duty resulting in his unauthorised absence. However, on the application of the aforesaid judgment of Hon'ble the Supreme Court in Krushnakant B. Parmar (supra), it cannot be said that the unauthorised absence of late husband of the petitioner was wilful and deliberate and, therefore, it cannot be held that such unauthorised absence amounted to misconduct so grave as to dismiss him from service.
In view of the above, the impugned dismissal order dated 28.09.1995, being against the provisions of law is hereby quashed. However, the order dated 26.10.1995 whereby the period of absence from duty of late husband of the petitioner amounting to 952 days has been directed to be 'without pay' is upheld.
It has been stated that the petitioner's husband subsequently died on 15.10.2004 and, as such, no useful purpose would be served in remitting the matter to the authority concerned for holding enquiry afresh.
In the aforesaid circumstances, the writ petition is partly allowed and a writ in the nature of Mandamus is issued commanding opposite party no.4, Superintendent of Police, Government Railway Police, District Lucknow to pay the post-retiral benefits due to late husband of the petitioner after re-fixation of pay of husband of the petitioner late Virendra Kumar Ojha. However, the fixation of pay prior to 15.10.2004 shall be done only on a notional basis.
The fixation of pay and the actual payment of post-retiral benefits due to late husband of the petitioner shall be done within a period of six months from the date a copy of this order is produced."
Learned Counsel for the respondent while supporting the judgment passed by the Tribunal dated 13.12.1984 and termination order dated 23.11.1961, has submitted that the petitioner was appointed as Junior Clerk by the then Deputy Transport Commissioner (Administrative) U.P. , Lucknow and was posted in the office of the Regional Transport Office, Agra where he joined on 5.5.1958 and he was transferred from Agra to Kanpur on 25.1.1961. Thereafter, the petitioner joined at Kanpur and he frequently took leave on one pretext or the other. In the first instance he took leave for 6 days for the period from 10.4.1961 to 15.4.1961 which was subsequently extended upto 9.5.1961 through a telegram on account of illeness of his wife. The petitioner again took leave for two days for 8.6.1961 and 9.6.1961. On 23.6.1961 the petitioner sent an application requesting for 11 days leave from his residence at Agra on the pretext of illness of his wife and left Agra. He extended the leave for a month on account of his own illness through a postcard on 5.7.1961. The respondent no. 3 i.e. Regional Transport Officer, Kanpur asked the petitioner to send a medical certificate of his own illness. Thereafter, the petitioner instead of submitting a medical certificate of his illness, sent a medical certificate of his wife, which was received by the respondent no. 3 on 28.07.1961. On 07.08.1961 the petitioner was asked to report for duty immediately. The petitioner on one or the other pretext avoided to submit the medical certificate of his own illness till 26.9.1961. On which date a reference was made to the Civil Surgeon Etah for his examination. The Civil Surgeon Etah recommended him a month leave on 16.10.1961. After expiry of the leave recommended by the Civil Surgeon Etah, the petitioner continued to remain on leave but did not submit any medical certificate in support of his illness. The petitioner remained absent from duty for a long period. Thereafter, petitioner's services were terminated on one month's notice in accordance with the terms and conditions of his employment vide order dated 23.12.1961 which was acknowledged by him on 26.12.1961. Thereafter, the petitioner moved a representation before the Transport Commissioner, U.P. against the termination order. The said representation was rejected by the Transport Commissioner vide its order dated 21.5.1962. Thereafter, the petitioner moved number of representations to the higher authorities, which were also rejected. Lastly, the petitioner sent a memorandum addressed to the Chief Minister for re-employment which was finally rejected by Government Order No. 5091P/30.3.24PF/80 Dated 16.11.81. Learned Counsel for the respondent further submitted that the orders dated 23.12.1961 and 13.12.1984 are passed in accordance with law and no interference is warranted by this Court.
We have considered the submissions of learned Counsel for the parties and perused the records.
In the aforesaid factual background, we feel it appropriate to first consider the issue of limitation and findings given by the Tribunal thereon as we are of the opinion that in event we find that the findings of the Tribunal on the issue of limitation is just and proper then no useful purpose would be served in considering other aspects of the case.
We find from the record that petitioner was appointed as Junior Clerk in the Transport Department on 5.5.1958, on purely temporary basis and vide order dated 23.12.1961, the petitioner was terminated. The order of termination is simplicitor order of termination.
Against the order of termination dated 23.12.1961 the petitioner preferred the representation before the higher authority i.e. Transport Commissioner, which was rejected vide order dated 21.05.1962. After order dated 21.05.1962 the petitioners preferred representations, one before the Chief Minister, another before the Transport Minister with the prayer of re-employment. The prayer for re-employment made by the petitioner was rejected on 16.11.1981 and the petitioner was informed about the same vide communication dated 16.12.1981.
The orders dated 23.12.1961 and 16.12.1981 were challenged by the petitioner before the Tribunal by means of Claim Petition No. 136/F/V/1982, which was dismissed by Tribunal vide order dated 13.12.1984. While dismissing the claim petition, the Tribunal on the issue of limitation observed as under:-
" The order terminating the services of the petitioner was passed in 1961 and so a suit or any legal remedy should have been sought within 3 years from that date. In any case the limitation could have been taken from the date when the representation of the petitioner was rejected by the Transport Commissioner. Certainly the limitation cannot be taken from 16.12.1981 when the petitioner was informed of the decision of the government that it was not necessary to amend the earlier orders. In our opinion this reference is hopelessly barred by limitation."
In facts of the case, in our view, the cause of action to the petitioner in relation to termination of service, for seeking relief against his termination was accrued on 23.12.1961, when the order of termination was passed or on 26.12.1961, when he acknowledged the order of termination and thereafter on 21.05.1962, the date on which the representation preferred by him, against the order of termination dated 23.12.1961, was rejected by the Transport Commissioner and not on 16.11.1981, whereby the highly belated representation of petitioner dated 04.06.1981, for re-employment, was rejected or on 16.12.1981, the date of communication of decision dated 16.11.1981 and as such we are of the view that the claim petition was not within the limitation provided under Section 5 of the U.P. State Public Services (Tribunal) Act, 1976. In fact the claim petition was highly barred by time.
We would also feel appropriate to observe that the repeated non statutory representations or availing remedy not provided under the law and any decision thereon would not extended the limitation.
In the case of Jagdish Narain Maltiar Versus The State of Bihar and Others reported in (1973) 1 SCC 811, the Hon'ble Apex Court observed as under:-
7. But equally, there is no substance in the appellant's contention that the High Court was in error in dismissing the Petition on the ground that it was filed after an abnormal de lay. It is only necessary to mention a few dates in order to show how the High Court was justified in the view it took. The first Writ Petition filed by the appellant was dismissed on January 21, 1960. The appellant made a representation to the Government more than 3 years thereafter i.e. on June 4, 1963. He received a reply to his representation on August 17, 1963 in which it was stated that his services were terminated for gross misconduct. On December 2, 1963 he submitted a fresh memorandum to the Government. On February 6. 1964 he submitted yet another memorandum. He waited to receive a reply till September 2, 1965 on which date he filed a further representation. He received an order rejecting his representation on May 15, 1966.
8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition.
In the case of New Delhi Municipal Council Versus Pan Singh and Others reported in (2007) 2 SCC (L&S) 398, the Hon'ble Apex Court has held as under:-
In Shiv Dass v. Union of India & Ors this Court held:-
"9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 993). There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also).
10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
The Division Bench of this Court in the case of Karan Kumar Yadav Vs. U.P. State Public Services Tribunal and Others has held as under:-
11. Section 5(1)(b) of the U.P. Public Services (Tribunal) Act, 1976 reads as follows:
5(1)(b). The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under Section 4 as if a reference were a suit filed in civil court so, however, that--
(i) notwithstanding the period of limitation prescribed in the Schedule to the said. Act, the period of limitation for such reference shall be one year;
(ii) in computing the period of limitation, the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor) in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded.
12. Section 5(1)(b) aforesaid lays down the applicability of Limitation Act and confines it to the reference under Section 4 of the Act, 1976 as if a reference was a suit filed in the civil court. This leaves no doubt that a claim petition is just like a suit filed in the civil court and in the suit the period of limitation cannot be extended by applying the provisions of Section 5 of the Limitation Act. Sub-clause (i) of Section 5 of the Tribunal's Act, specifically provide limitation for filing the claim petition, i.e., one year and in Sub-clause (ii) the manner in which the period of limitation is to be computed has also been provided.
13. Section 5 of the Limitation Act, reads as under:
Extension of prescribed period in certain case.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient case for not preferring the appeal or making the application within such period.
Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.
14. Its applicability is limited only to application/appeals and revision. It hardly requires any argument that Section 5 does not apply to original suit, consequently it would not apply in the claim petition. Had the Legislature intended to provide any extended period of limitation in filing the claim petition, it would not have described the claim petition as a suit, filed in the civil court in Section 5(1)(b) and/or it would have made a provision in the Act giving power to the Tribunal, to condone delay, with respect to the claim petition also.
15. In view of the aforesaid provision of the Act and the legal provision in respect to the applicability of Section 5 of the Act, it can safely be held that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable. The Tribunal will cease to have any jurisdiction to entertain any claim petition which is barred by limitation which limitation is to be computed in accordance with the provisions of the Tribunal's Act itself and the rules framed thereunder.
16. Learned counsel for the petitioner says that since the petitioner has acquired Diploma afterward, therefore, this termination order may not come in way of his future appointment.
17. Since the petitioner's services have been terminated by not passing an order of dismissal from service he will be guided only by the principle which is applicable in the matter of simple termination of a temporary Government servant. For the aforesaid reasons the petition is dismissed."
Thus, keeping in view the reasons recorded by us, hereinabove and the findings given by the Tribunal on the issue of limitation as well as the law on the issue of limitation, under consideration, we are of the view that there is no illegality or infirmity in the impugned order dated 13.12.1984.
For the aforesaid reason, we do not find a fit case for interference.
The writ petition is misconceived and hence dismissed accordingly.
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(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 14.02.2020 Jyoti/-