Central Administrative Tribunal - Delhi
Ganpat Ram (Inspector No.D-1/387 vs Commissioner Of Police on 19 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.866/2010 This the 19th day of March, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Ganpat Ram (Inspector No.D-1/387, Spl. Branch, Delhi Police) S/O Bhani Sahaya, R/O Qtr. No.1, Type-IV, P.S. Shankar Pur, Delhi. Applicant (By Shri A. K. Behera, Advocate) Versus Commissioner of Police, Police Headquarters, MSO Building, IP Estate New Delhi-110002. Respondent O R D E R Justice V. K. Bali, Chairman:
Ganpat Ram, an Inspector in Delhi Police, the applicant herein, through present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, calls in question order dated 1.2.2002 that came to be passed sequel to a regular departmental enquiry inflicting him with the punishment of forfeiture of three years approved service permanently for a period of three years entailing proportionate reduction in his pay, as also order dated 9.6.2003 passed by the Commissioner of Police, Delhi rejecting his appeal against the order passed by the disciplinary authority. In consequence of setting aside of the orders aforesaid, the applicant prays for all consequential benefits. Inasmuch as, the Original Application against the orders mentioned above came to be filed in 2008 and re-filed in 2010, the same is accompanied by two applications seeking condonation of delay both in filing and re-filing the same. Before we may, however, deal with the applications seeking condonation of delay, we may mention that the departmental enquiry was initiated against the applicant on the allegations that while posted as I/C PP/Khajuri Khas, he did not take appropriate legal action in the dispute between Hari Ram and Zile Singh, which was known to both him and Inspr. Zile Singh, SHO/Gokulpuri. The latter had taken the applicant to the plot over which the dispute existed along with HC Sita Ram. It was alleged that it was because of the inappropriate action on the part of the applicant that an incident of quarrel took place in which one Ant Ram s/o Zile Singh received gun shot injury, for which a case FIR No.868/98 u/s 452/307/34 IPC was registered at PS/Gokulpuri. It was also alleged that the applicant had received Rs.50,000/- as illegal gratification from Hari Ram for allowing him to start construction on the disputed plot, and that the transaction of money was made through one Gajraj Singh, a property dealer of Yamuna Vihar, who admitted about the said transaction before Shri Virender Singh, Addl. DCP(I)/North-East and Shri M. C. Bhardwaj, ACP/Seemapuri, but refused to give anything in writing. Gajraj Singh also mentioned that Rs.50,000/- had been returned to him by the applicant on 19.11.1998. Hari Ram also confirmed in writing regarding giving illegal gratification to the applicant through Gajraj Singh. The applicant denied having received any complaint in respect of the disputed plot from any of the parties to SHO/Gokulpuri. It was alleged that had the applicant not allowed Hari Ram to start construction on the disputed plot, the firing incident could have been averted, and that the SHO/Gokulpuri, in the presence of the applicant (Addl. SHO) directed categorically that nobody would start construction and status quo would be maintained. The applicant, it was further alleged, deliberately with ulterior motive allowed Hari Ram to carry on construction work, which was also revealed to ACP/Seemapuri when he visited the spot on the day of the firing incident. All that may further be mentioned is that even though, the report of the enquiry officer was in favour of the applicant, the disciplinary authority recorded a note of dissent, served it along with the report to the applicant, had his representation and returned a finding of guilt. The disciplinary authority held the applicant to have indulged in gross misconduct deserving the severest punishment. However, observing that with a view to give the applicant an opportunity to mend his conduct, the said authority punished him with forfeiture of three years approved service permanently for a period of three years entailing proportionate reduction in his pay. The appellate authority while confirming the order passed by the disciplinary authority observed that the allegation of taking illegal gratification of Rs.50,000/- through property dealer Gajraj Singh, PW-6, had been clearly supported by PWs-4, 9, 10, 11 and 12, and moreover, PW-2 Smt. Dhanwanti Devi had clearly deposed that on the directions of the applicant, Hari Ram Started filling the land with sil, which would show that the applicant had indulged in transaction of illegal gratification instead of taking appropriate legal action in the matter.
2. In the application seeking condonation of delay in filing the Original Application, it has inter alia been pleaded that the applicant was never involved in any service litigation prior to when he resorted to legal proceedings in the present case. He was under an impression that limitation to challenge the orders would be one year. He was not familiar with either the Tribunal or the legal practitioners there. He made enquiries from his colleagues and superiors and after getting their advice, some time in or around 2nd week of February, 2004 approached his lawyer for challenging the impugned orders. One Dinesh Kumar was working as court clerk in the office of the lawyer that the applicant engaged. The lawyer dictated the OA in his presence and a draft copy of the same was given to him as well. He went through the same, signed it and handed over to Dinesh Kumar, the clerk of the lawyer. This was some time in the last week of April or mid-May, 2004. It is pleaded that the applicant remained under the genuine belief that after signing the papers, his case must have been filed and pending adjudication. He was under the impression that service matters would take 4-5 years for being disposed of. Some time in October, 2006 the applicant contacted office of his lawyer and came to understand that Dinesh Kumar was no more working with him. He, therefore, contacted the lawyer to find out the status of his case, and discovered that his case file was not traceable in the office of the advocate. Since the court clerk had left some time in the year 2004, it was not possible to trace the said file. The applicant too would not have spare copy of the documents of his disciplinary case. It thus became necessary to reconstitute the file. It is then pleaded that the applicant had detailed discussion with his lawyer, and he expressed his confidence in the lawyer as also desired to prosecute his case further through him. In consultation with the lawyer, the applicant made earnest endeavour to reconstitute the file by contacting various personnel from whom such documents could be collected, like his defence assistant as well as the offices where he had been posted at the relevant time. The documents were collected from various sources by the applicant himself and the file was finally reconstituted in the first week of July, 2008. The case was thus again prepared and filed after a delay of four years. The delay of four years, it is stated, occurred in the circumstances mentioned above, and there was no mala fide intention on the part of the applicant in filing the case at that distant point of time, as he would not stand to gain anything by filing his Application at a belated stage.
3. In the application seeking condonation of delay in re-filing the OA, it is pleaded that the OA was filed on 10.9.2008 along with the application for condonation of delay, but there was delay of nearly one year and five months in re-filing the same after removing objections put forward by the Registry. The OA was filed late, as mentioned already, because of the delay in the office of the counsel. The counsel, it is pleaded, out of sheer embarrassment and fear of loss of reputation, remained hesitant in re-filing the case. The applicant, however, reposed his faith in the same counsel and re-filed the matter through him. After a lot of deliberation it was finally decided by the counsel to own up the mistake and file the application seeking condonation of delay in re-filing the OA after curing the objections.
4. What transpires from the facts of the case is that the order by the appellate authority dismissing the appeal of the applicant against order dated 1.2.2002 came to be passed on 9.6.2003, whereas the OA challenging the said orders was filed some time in September, 2008, after a delay of more than four years. Surely, a litigant cannot be put to loss because of delay in filing his lis at the end of the lawyer engaged by him, but what clearly emerges from the facts brought on records by the applicant himself is that he had come to know in October, 2006 that the OA had not been filed. One may not take seriously the impression of the applicant that the impugned orders could be challenged in the Tribunal within a year, as also that the clerk of the counsel was remiss in the matter in filing the OA, but what does not appear on the face of it to be correct is that the applicant when derived knowledge of his case having not been filed in October, 2006, would still take two years in reconstituting the file. There is no averment in the application as to what difficulties he had to face in reconstituting the file. All that the applicant had to collect was the report of the enquiry officer, the dissenting note recorded by the disciplinary authority and the orders passed by the disciplinary and appellate authorities, which could be easily obtained by simply making an application to the concerned authority. Even if, the copies of documents could be made available to the applicant only by his defence assistant as also the offices where he had been posted, it could not have taken two years to reconstitute the file. The story of reconstitution of the records, for which the applicant took two years, does not appear to be correct. It rather appears to be a made-up affair. Further, it may be recalled that the applicant had, as per his version, contacted his advocate in the second week of February, 2004, but there does not appear to be any reason why he contacted the advocate after almost two and a half years, i.e., October, 2006, to enquire about the fate of his case. In case a person inflicted with a punishment as the applicant had indeed been visited, there ought to have been some anxiety on his part to know as to what had happened in his case. It is difficult to believe that the applicant would remain indifferent or oblivious to the fate of his case. One may condone the delay in re-filing the OA as the fault on that count would not lie at the end of the applicant, but there does not appear to be any reason to condone the delay when the applicant would be oblivious to the fate of his case for two and a half years in the first instance and then take more than two years in reconstituting the case records. The explanation does not appear to be correct; it rather appears to be, as mentioned above, a made-up affair.
5. Shri Behera would, however, while seeking condonation of delay in filing and re-filing the OA, rely upon a judgment of the Honble Supreme Court in N. Balakrishnan v M. Krishnamurthy [(1998) 7 SCC 123]. Facts of the said case reveal that a suit for declaration primarily claiming title was filed by M. Krishnamurthy, which was decreed ex parte on 28.10.1991. N. Balakrishnan, who was defendant in the suit, on deriving knowledge of the decree, moved an application to set it aside, which was dismissed for default on 17.2.1993. He filed an application for having that order set aside only on 19.8.1995, for which a delay of 883 days was noted. He filed yet another application to condone the delay by offering explanation. The explanation furnished by him was that he had engaged a lawyer for making motion to set aside the ex parte decree, but the lawyer failed to inform him that the application was dismissed for default on 17.2.1993. When he got summons from the execution side on 5.7.1995, he approached his lawyer, but he was told that perhaps execution proceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousand towards advocates fees and other incidental expenses. The advocate would not do anything in the matter even thereafter. On 4.8.1995 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate, and hence rushed to the court from where he got the disquieting information that his application to set aside the ex parte decree stood dismissed for default as early as 17.2.1993, and that nothing was done in the court thereafter on his behalf. He also learnt that his advocate had left the profession and joined some service. He then filed the application for setting aside the order dated 17.2.1993. He simultaneously moved the District Consumer Disputes Redressal Forum ventilating his grievance and claiming compensation of rupees one lakh as against his erstwhile advocate. The said forum directed the advocate to pay compensation of rupees fifty thousand to Balakrishnan besides cost of rupees five hundred. We may also mention that the trial court condoned the delay, but the High Court in its revisional jurisdiction set aside the said order, and the application seeking review of the order in revision was also dismissed. In the facts as mentioned above, the Honble Supreme Court, insofar as length of delay in concerned, observed that condonation of delay is a matter of discretion of the court, and that section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit, and further that irrespective of the length of delay, acceptability of the explanation is the only criterion. While dealing with the powers of superior courts in dealing with such matters, it was observed that once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. It was further observed that it would be a different matter when the first court refuses to condone the delay, and in such cases the superior court would be free to consider the cause shown for the delay afresh, and it would be open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. It was also observed that the rules of limitation are not meant to destroy the rights of parties; they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. Pertinent reliance of the learned counsel is upon observations of the Honble Supreme Court that It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation.
6. Having heard the learned counsel representing the applicant, we are of the view that condonation of the massive delay has not been sought on sufficient grounds. The settled law on the point, and even if one is to note and have regard to the judgment cited by the learned counsel, is that the court must accept the explanation for the delay to be sufficient. The facts of the judicial precedent relied upon by the learned counsel would have no parity with the facts of the case in hand. The Apex Court was dealing with a case where, out and out, it was the fault of the lawyer whose conduct bordered on cheating the client and indulging in gross negligence in discharge of his duties, for which he was even mulcted with compensation to be paid to the client to the tune of rupees fifty thousand, besides costs. Insofar as, N. Balakrishnan, the appellant before the Supreme Court, is concerned, he had engaged a lawyer, paid him fee, and the application seeking to set aside the ex parte decree was filed as well, but the lawyer would never inform him of the fate of the case. The explanation furnished by him was accepted by the trial court and it is only in revisional jurisdiction that the said order was set aside. Revision under Section 115 CPC is competent only to correct jurisdictional errors, and that is why, even though not specifically said, it has been observed by the Supreme Court that such orders ordinarily should not be set aside in revisional jurisdiction of the High Court. The observations made by the Supreme Court as relied upon by the learned counsel and as have been extracted above, were in the context of the facts of that case. It cannot be said as a matter of law universally applicable that howsoever long the delay may be, be it one year or ten years, and even if there be no sufficient cause and simply if the litigant would not stand to gain by the delay, the delay must be condoned. If only the litigant not gaining by delay is to be followed as the solitary factor for condoning the delay, the courts and tribunals may have to condone delay almost in every case. In normal course of things, a litigant would wish to have his lis decided as early as possible. Such cases where he may intentionally delay to gain advantage would be very very limited. We may also not forget the significant observation made by the Honble Supreme Court that the explanation has to be accepted. Once the explanation is not acceptable, it would be difficult to condone the delay. Be that as it may, even if one is to go by the observations as relied upon by the learned counsel, to hold that whatever be the delay if the suitor does not stand to gain by the same, it must be condoned, in the present case, we find there could well be a reason for the applicant to delay the matter. It may be recalled that the applicant has been guilty of indulging in corruption. It is proved that he accepted a huge sum of rupees fifty thousand in helping a party, and but for his help despite instructions of the SHO, the incident of firing could have been averted. The disciplinary authority specifically observed that present was a case of severest punishment, but lesser punishment was being given to the applicant only with a view to give him opportunity to mend his conduct. Corruption, be it with police or any other organization, cannot be taken as acceptable and normal way of life. We are quite convinced that on proof of the allegations as made against the applicant, it would have been definitely a case of maximum punishment. It could be in the mind of the applicant that taking immediate steps to challenge the orders might result in enhancement of the punishment to him, be it by the authorities or even by the court, even if he was to challenge the orders, as surely, the courts are not powerless even in a petition that may be filed by a citizen, to put him to notice for enhancement of sentence. The lapse of time, it could be in the mind of the applicant, might not result in that kind of action. There appears to be a cause for the applicant to delay the proceedings in this case.
7. Finding no merit in the application seeking condonation of delay, we dismiss the same. That being so, the application seeking condonation of delay in re-filing the OA and the OA itself would not survive.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/