Central Administrative Tribunal - Allahabad
Mrs Vimal Devi vs General Manager N C Rly on 11 December, 2023
Reserved on 06.12.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 11th day of December, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Miscellaenous Application No. 1 of 2021
(Delay Condonation Application)
In
Diary No. 2622 of 2020
Mrs. Vimla Devi wife of Late Mahadeo aged about 53 years,
Resident of Village - Rasauli, Post - Bajita Thapa, Tehsil - Sadar,
District - Mirzapur.
........... APPLICANT
By Advocate: Shri A K Srivastava and Shri M K Srivastava
Versus
1. Union of India through General Manager, North Central Railway,
Allahabad.
2. Divisional Railway Manager, North Central Railway, Allahabad
Division, Allahabad.
3. Sr. Divisional Personnel Officer, North Central Railway,
Allahabad Division, Allahabad.
4. Senior Divisional Engineer (First), North Central Railway,
Allahabad Division, Nawab Yusuf Road, Allahabad.
..........RESPONDENTS
By Advocate: Shri Krishna Kumar Ojha
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) Shri A K Srivastava, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents, were present at the time of hearing on Delay Condonation Application vide MA No. 1 of 2021.
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2. At the outset, it is pertinent to mention that the instant delay condonation application suffers highly on the ground of vagueness as nowhere it has been explained that how much delay has occurred in filing of the subject original application nor the ground and reasons of delay have been elucidated anywhere. Straightforward reliance upon several case laws has been placed without even explaining the basic facts of the case. We could know about the exact position of the delay occurred only after going through the original application and reasons for the delay was only ascertained after hearing the parties. In that context itself, the delay condonation application suffers badly on account of vagueness and lack of syntax.
3. Disclosing a brief history of the case, learned counsel for the applicant submitted that the subject OA was filed by the applicant seeking family pension along with retiral dues of her husband which were not acceded to her. The husband of the applicant was awarded the punishment of removal from service and the order dated 02.04.2005 passed by the disciplinary authority and order dated 30.11.2012 passed by the appellate authority validating the punishment has been challenged in the subject OA. The husband of the applicant expired in 2016. The instant original application has been filed on 29.06.2020 which implies that there is a substantial delay of approximately 8 years since the order dated 30.11.2012 was passed by the appellate authority. To inquire into the merits of the OA, a decision on the delay condonation application is must but the contents of the OA have only been looked into notwithstanding its merits just to explore the details of the delay occurred.
4. During the course of hearing, learned counsel for the applicant placed reliance upon the judgment dated 28.02.2012 passed by the Hon'ble High Court of Allahabad in Writ A No. 21454 of 2010 titled Ram Jiyawan Vs Union of India & Others claiming that the said judgment deals with the same organization, same respondent, delinquent on the same post and same cause of action. Thus, he argued that the above judgment shall exercise a binding force in the
2|Page instant case as well. For the sake of clarity, the relied upon portion of the above judgment is quoted herein below:
"2. The petitioner, serving as a Track Man, was absent from duties from 8.9.2000 to 14.9.2001. He was given a charge sheet. A departmental enquiry was held in which he was punished, with an order of removal from service by the Disciplinary Authority: ADEN/L/NCR/ALD dated 4.6.2003. The petitioner's appeal and revision were dismissed, on which, he filed Original Application in the Central Administrative Tribunal, Allahabad Bench, Allahabad.
11. In Krushnakant B Parmar Vs. Union of India and another [Civil Appeal No. 2106 of 2012 (arising out of SLP (C) No. 15381 of 2007, decided on 15.2.2012] in a similar circumstances, through for a smaller period, the Supreme Court in paragraphs Nos. 15 to 22 as follows:-
"15. In the case of appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
16. 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 can not be held to be wilful.
18. 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.
19. 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 absence of such finding, the absence will not amount to misconduct.
20. 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 the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others reported in (2006) 5 SCC 88 wherein this Court held:
3|Page "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."
22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty."
14. In the present case also, we find that since the petitioner has been out of employment for a long period, and the charges against him are only for remaining absent, for which he had submitted a reply, which was not considered by the department, the writ petition is allowed. The order of the Central Administrative Tribunal and the order of the Revisional, Appellate and Disciplinary Authorities are set aside. The respondents are directed to reinstate the petitioner within a period of two months from today. The petitioner will be entitled for 50 % of the back wages."
5. Learned counsel for the applicant has also placed reliance upon the judgment dated 25.07.1997 passed by the Constitutional Bench of the Apex Court in case Civil Appeal No. 5082 of 1997 titled K C Sharma & others Vs. Union of India & others submitting that in case similar relief has already been granted in several cases, the appellant cannot be deprived of the said relief just on account of delay and latches and delay prevailing, if any, is liable to be condoned for the purpose of extending the said relief.
6. Learned counsel for the applicant has also placed reliance upon the judgment dated 20.02.2019 passed by the Cuttack Bench of
4|Page Central Administrative Tribunal in OA No. 722 of 2017 titled Nirakar Das Vs. Union of India & Ors. submitting that the Tribunal was pleased to state that same relief is liable to be extended to the similarly situated employees. For the sake of clarity, the relied upon portion is quoted herein below:
"6. That the judgment of Hon'ble Apex Court in the case of M. Shanmugam (Supra) is binding and being similarly situated employees as M. Shanmugam, the applicant are also entitled for the same benefits as per the judgment in case of M. Shanmugam (supra).
11. Hence this argument of the applicant has forced in light of the judgment dated 15.10.1998 of Hon'ble Apex Court. The second argument about applicability of the judgment of Hon'ble Apex Court dated 15.10.1998 in case of M. Shanmugam (supra) to the present OA's has also to be decided in favour of applicant, since the respondents averment of its non-applicability on the ground of delay is not expectable as discussed in paragraph - 10 of this order annexed herewith and marked as Annexure No - 6 to this original application in Compilation No - II."
7. In the concluding paragraphs of his delay condonation application, learned counsel for the applicant has submitted that the judgment in case Nirakar Das (supra) passed by the Cuttack Bench of CAT and that of Hon'ble High Court of Allahabad passed in case Ram Jiyawan (supra) hold paramount relevance in the instant case of the applicant and as such, the delay occurred in the instant case is liable to be condoned and the case must be heard and decided on merits.
8. Learned counsel for the respondents has vehemently opposed the averments of the applicant's counsel submitting that the instant delay condonation application is not tenable in the eyes of law because nowhere in it has the applicant explained the proportion of delay occurred nor has justified the reasons for the delay. Learned counsel further argued that the judgments relied upon by the applicant in his delay condonation application hold no context and relevance in the instant case of the applicant.
9. Learned counsel for the respondents has submitted that the applicant is seeking the quashing of the impugned order dated 02.04.2005 and appellate order dated 30.11.2012 which implies that there is a significant delay of about 9 years. Such an immense delay
5|Page is not liable to be condoned especially when the applicant has failed to genuinely explain the delay occurred. To substantiate his arguments, learned counsel for the respondents has placed reliance upon the judgment rendered by the Apex Court in the cases SS Rathore Vs State of M P reported in 1990 SCC (L&S) 50, in Administrator of Union Territory of Daman and Diu and others Vs R D Valand - 1995 Sup (4) Supreme Court cases 593, in Ramesh Chand Sharma etc. Vs. Udham Singh Kamal & others 1999 (2) SCSLJ 294 SCC 1998 (8) 304, Dr. A K Mitra, DG CSIR and another Vs D Appa Rao and another 1999 (1) SC SLJ 159 SCC 1998 (8) 492, in Union of India and others Vs M K Sarkar reported in (2010) 2 supreme court cases 59, in Union of India and others Vs Durairaj reported in JT 2011 (3) SC 254 and in Capt. Harish Uppal Vs Union of India and others (JY 1994 (3) SC 126). Thus, prayer was made on the part of respondents' counsel that the instant delay condonation application may be dismissed with cost and the OA may also be accordingly dismissed.
10. We have considered the rival contentions advanced by parties and carefully gone through the delay condonation application and the objection filed to it. We have also carefully perused the judgments relied upon by the parties.
11. As was discussed in the second paragraph of the instant judgment, it is reiterated that the instant delay condonation application suffers on the ground of vagueness and syntax as nowhere it has been explained as to how much delay has occurred in filing of the subject original application nor the grounds and reasons of delay have been elucidated anywhere. Straightforward reliance upon several case laws has been placed without even explaining the basic facts of the case. What's more surprising is the fact that vide order dated 25.01.2021, a direction was given to the applicant's counsel on his own request to move a supplementary affidavit to mention the specific period of delay occurred in terms of years, months and days but despite that, no such affidavit was ever filed on the part of the applicant or his counsel. However, a pivotal issue like
6|Page delay must not be scrutinized merely on the basis of petty syntax errors and it should be adjudicated on merits.
12. To strengthen his case, applicant's counsel has relied upon the judgment of the Hon'ble High Court of Allahabad passed in the case of Ram Jiyawan (supra) the relied upon / operative portion of which has already been quoted at paragraph 4 above. Applicant's counsel has claimed that the said judgment poses a direct bearing to the instant case of the applicant as it deals with the same organization, same respondent, delinquent on the same post and same cause of action. A perusal of the said judgment reveals that the question of delay has not been dealt with in it and only the issue of "unauthorized absence from service" was deliberated upon in that case. Although the point of contention in the subject OA of the instant delay condonation application is also "unauthorized absence from service"
but before analyzing the subject OA, instant delay condonation application has to be adjudicated upon. This simply implies that the judgment of Ram Jiyawan (supra) may have a bearing on the controversy involved in the subject OA but it definitely not has any bearing whatsoever to the instant delay condonation application and therefore, the argument of the applicant's counsel that the instant delay condonation application can be allowed on the lines of the law laid down in Ram Jiyawan case (supra) does not hold water.
13. Similarly, the reference made by the applicant's counsel to the judgment passed by the Apex Court in the case of K C Sharma (supra) cannot be used as a binding factor for arriving at a decision in the instant delay condonation application. In the above judgment, the Apex Court overturned the decision of the Tribunal and condoned the delay because similarly situated employees were already granted the identical relief by the same Bench of the Tribunal therefore it was held that no ground was made for the Tribunal to not act in accordance with its own decision of conferring the relief to the similarly situated persons which was done earlier. Further, it is needless to say that the issue of delay and latches is required to be solved in a judicious manner specifically taking into account the facts
7|Page and circumstances of particular case. This leaves very little or no scope for simply disseminating the relief under the garb of any blanket order without paying heed to the distinctiveness of facts and uniqueness of circumstances involved each and every case.
14. As regards to the judgment of Nirakar Das (supra) passed by the Cuttack Bench of Central Administrative Tribunal which has been relied upon by the applicant, it would be in the fitness of things to record that in the said judgment, the Bench concerned had placed reliance upon the judgment of M. Shanmugam case passed by the Apex Court on 15.10.1998. The facts and circumstances of the said case are different from the instant case of the applicant as in the said case, the department concerned committed a serious mistake by passing an order in violation of the statutory rules and provisions and accordingly, relief was conferred upon the applicants therein. However, as far as the instant case is concerned, the applicant who is the wife of the deceased employee was never granted the benefit of family pension. The last effective order was passed by the respondents in the year 2012, applicant's husband has passed away in the year 2016 and in all likelihood, the deceased employee ought to have approached before the Tribunal within one year. Even if it is assumed that the applicant who is the wife of the deceased employee is illiterate and due to one reason or another, she could not approach before the Tribunal for the redressal of her grievance immediately after the death of her husband, a delay of nine years cannot be overlooked. As regards to the case laws relied upon by the applicant, all fail to furnish a cogent and justifiable reason for the significant delay prevailing in the matter. The case of the applicant does not deserve recognition in any ground whatsoever. Time and again it has been ascertained by several judicial forums across the country including the Apex Court that inordinate and unexplained delay or latches is by itself a ground to refuse to the petitioner, irrespective of the merit of his or her claim. A person who has lost his / her remedy by lapse of time, loses his / her right as well. It is a universal legal principle that law does not and cannot lend its arms to those who are
8|Page not vigilant of their own rights. Further, if candidates placed similarly to those who have already been granted a relief earlier, approach the judicial forum at a belated stage, their claim cannot be simply acceded to ignoring the delay and latches particularly when day to day explanation of delay has not been made clear. In this regard, it would be in the fitness of things to refer to the law laid down by the Apex Court in its judgment dated 17.10.2014 passed in Civil Appeal No. 9849 of 2014 titled State of Uttar Pradesh & Ors. Vs. Arvind Kumar Srivastava & Ors. wherein similar type of controversy was adjudicated upon. For the sake of clarity, the operative portion of the judgment is quoted herein below:
"23) The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
9|Page (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."
15. Therefore, in view of the above deliberation and analysis, we are of the considered opinion that the delay occurred in filing the subject original application cannot be condoned and accordingly, the delay condonation application MA No. 01 of 2021 is hereby rejected being devoid of merits. Accordingly, if the delay condonation application has been rejected, Original Application bearing Diary No. 2622 of 2020 stands dismissed.
16. All associated MAs stand disposed of accordingly. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
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