Central Administrative Tribunal - Delhi
Shri Amar Pal S/O Shri Chhitu Ram vs Northern Railways on 12 May, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.3083/2010 M.A.No.2378/2010 M.A.No.2379/2010 This the 12th day of May 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shailendra Pandey, Member (A) Shri Amar Pal s/o Shri Chhitu Ram r/o Staff Quarter Sant Parmanand Hospital Jamuna Bazar, Delhi-6 ..Applicant (By Advocate: Shri M C Dhingra) Versus 1. Northern Railways Through General Manager Baroda House, New Delhi 2. Reviewing Authority Chief Materials Manager (Sales) Northern Railways Head Quarters Office Baroda House, New Delhi 3. Appellate Authority Under Rule 18 of Railway Service Conduct Rules 1968 Northern Railways Head Quarters Office Baroda House, New Delhi 4. The Secretary to Controller of Stores (COS) Stores Branch Northern Railway, Baroda House New Delhi ..Respondents (By Advocate: Shri Rajender Khatter) O R D E R
Shri M.L. Chauhan:
The applicant has filed this OA, thereby praying for the following reliefs:
8.1 quash
(i) order No.92-S/56/CI.IV/Pt.VII/SSG (Loose) dated 28.12.2001 whereby respondent No.4 has ordered applicants removal from service;
(ii) order No.92-S/56/CI.IV/Pt. VII/SSG (Loose) dated 17.4.2002 whereby applicant has been communicated the order of the Appellate Authority, respondent No.3 herein, dismissing his appeal against his aforesaid illegal removal from service.
(iii) order No.92-S/56/CI.IV/ Pt.VII/SSG (Loose) dated 7.4.2004 passed by respondent No.2, communicated to him vide covering letter 5.2.2010 whereby his Review/Revision has been erroneously dismissed against his illegal removal from service;
8.2 direct the respondents to re-instate the applicant in service with full back wages and other consequential benefits as are admissible by virtue of his service; and may also 8.3 pass such other and further order(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Briefly stated, undisputed facts of the case are that the applicant was engaged as substitute Bungalow Khalasi on 22.12.1997 and posted at the official residence of Shri Rajendra Singh, Deputy Stores Controller, Civil Lines, Delhi. The applicant on 22.9.1998 attempted to commit suicide by consuming poison and was admitted to casual ward of Sant Parmanand Hospital and FIR against the applicant was also lodged. Pursuant to the lodging of FIR, charge sheet against the applicant was filed in the trial court under Section 309 IPC. Simultaneously, the charge sheet was also issued against the applicant for committing suicide and also unauthorizedly absenting from duty. The charge sheet was accompanied with the lists of documents and witnesses. In the list of documents, only two documents were mentioned, namely, FIR No.292/1998 dated 22.8.2009, PS Civil Lines, Delhi and attendance register. The relied upon documents were required to be proved by the two witnesses, i.e., attendance clerk and Shri Rajendra Singh, Dy. Stores Controller, New Delhi. The inquiry was held and the inquiry officer vide his report held the charge proved. Copy of the inquiry report was also made available to the applicant, who filed representation against the findings recorded by the inquiry officer and vide the impugned order dated 28.12.2001 the disciplinary authority removed the applicant from service. The appeal filed by the applicant against the order of disciplinary authority was also stated to have been dismissed by the appellate authority vide the order dated 17.4.2002. The applicant thereafter filed OA-274/2002 before this Tribunal, which was disposed of vide the order dated 8.9.2003 with liberty to the applicant to prefer revision petition before the revisional authority. Pursuant to the aforesaid order passed by this Tribunal, the applicant submitted the revision petition on 4.11.2003 to the respondents. According to the applicant, the order rejecting the revision petition was not communicated to him, whereas, as per the respondents, the said order of the reviewing authority was sent to the applicant by Speed Post on 7.4.2004 at his last known address through letter No.92-S/6/CI.IV/Pt.VII/SSG (Loose) dated 7.4.2004 (Annexure A-6). Now the applicant has challenged the order dated 7.4.2004 along with the orders passed by the disciplinary as well as appellate authorities by filing the present OA on 1.7.2010 after a lapse of six years and three months. However, the OA was defective and contained objections, which was again re-filed by the applicant along with MA-2379/2010.
3. In view of the averments made in the application, MA 2379/2010 is allowed and delay in re-filing the OA after removing the defects is condoned.
4. It may further be stated here that the applicant has also filed another MA, being MA-2378/2010 for condonation of delay. In this MA, the applicant has stated that he has filed the revision petition before the General Manager, Northern Railway, New Delhi vide Annexure A-7. It is further stated that in the meanwhile, he defended the trial arising from FIR lodged against him for offence under Section 309 IPC wherein he was acquitted by the trial court vide the order dated 29.8.2009. It is also averred that during the pendency of the trial of the applicant, nothing was heard from the General Manager regarding the fate of his revision petition and he was advised not to chase the General Manager for deciding the representation and he should concentrate on the criminal trial wherein, in the event of his acquittal, he will be reinstated in service. It has also been averred that on being acquitted from the trial court, the applicant made application under RTI Act to know the fate of his revision petition and in reply to his said application under RTI Act, the respondents vide letter dated 5.2.2010 informed him that his revision petition was dismissed by the Chief Materials Manager (Sales) vide order dated 7.4.2004 enclosing therewith a copy of the order dated 7.4.2004, which was earlier not served upon the applicant. Thus, according to the applicant, he was not aware of the order dated 7.4.2004 and as soon as he learnt about the said order, which was conveyed to him vide the letter dated 5.2.2010, he promptly submitted the accompanying OA on 1.7.2010 without losing any time. Accordingly, the applicant submits that the delay in filing the OA is required to be condoned.
5. Notice of this application was given to the respondents and the respondents have filed their reply wherein it is categorically stated that the revision petition of the applicant has already been decided on 7.4.2004 and the same was communicated to the applicant by Speed Post on the last known available address with the respondents. The respondents have further stated that the present OA should have been filed within a period of one year from the date of decision on revision petition. The respondents have also placed reliance on the decision of the Full Bench of this Tribunal in Dhiru Mohan v. Union of India, Full Bench CAT 1989-1991 Volume II 448, which is to the effect that as the Administrative Tribunals Act is special law and provides specific limitation, the Limitation Act cannot be invoked for deciding the question of limitation under this Act.
6. The respondents have also placed reliance on the decision of the Apex Court in Rattan Chand Samanta v. Union of India, 1994 SCC (L&S) 182 whereby the Apex Court has ruled that delay deprives the right of the claim. Besides other judgments of the Apex Court, decisions in the case of S.S. Rathore v. Union of India & others, (1992) 3 SCC 136, Arun Agarwal v. Nagseeka Exports Pvt. Ltd., (2002) 10 SCC 101 and the latest decision in Union of India & others v. M.R. Sarkar, (2010) 2 SCC 59 have also been relied upon and it is submitted that in view of the position clarified by the Apex Court, the applicant has not given any sufficient cause for condonation of delay, as such MA seeking condonation of delay is required to be rejected.
7. On merits, the respondents have stated that the applicant was engaged as substitute Bungalow Peon on 22.12.1997. In terms of the Northern Railway printed serial No.10960/95, which provides that the engagement of Bungalow Peons/Khalasi will be purely on contractual basis and in case any eventuality, such as unwillingness to work as Bungalow Khalasi, he/she is found unsuitable, or his/her performance is found unsatisfactory, his/her services shall be terminated, the respondents have also stated that the services could have been terminated. However, in this case the applicant had been afforded adequate opportunity to defend himself before imposing upon him the punishment of removal from service. Thus according to the respondents even on merits the applicant has no case.
8. We have heard the learned counsel for the parties and gone through the material placed on record.
9. Since the learned counsel for the respondents has raised an objection that the OA is hopelessly time barred, the said question is required to be decided at the first instance. At this stage, we wish to refer to the decision of the Apex Court in the case of D.C.S. Negi v. Union of India & others (Special Leave to Appeal (Civil) No.7956/2011) decided on 7.3.2011 whereby the Apex Court while dismissing the Appeal has observed that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation and 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). The Apex Court has further observed that 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 abdicates 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. At this stage, it will be useful to quote relevant portion of the aforesaid decision of the Apex Court, which thus reads:
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:
"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 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 abdicates 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.
10. Admittedly, in the present case the applicant has filed the revision petition dated 3.11.2003 before the revisional authority. It is also not disputed that the said revision petition was decided by the revisional authority vide order dated 7.4.2004. According to the respondents, the said order was communicated to the applicant by the Speed Post on the address given by the applicant but according to the applicant no intimation of such decision was given to him and he came to know about passing of the said order when he was acquitted by the trial court and thereafter took steps for obtaining the information under the RTI Act and he was informed vide the letter dated 5.2.2010 that his revision petition has been dismissed on 7.4.2004.
11. The question, which requires our consideration, is whether the facts, as stated by the applicant, constitute a sufficient cause. Although the applicant has stated that he was advised to pursue the criminal proceedings instead of pursuing the revisional remedy and thus did not take steps to find out as to what happened to his revision petition but such afterthought explanation given by the applicant, according to us, does not inspire confidence.
12. As can be seen from the provision contained under Section 21 of the Administrative Tribunals Act, 1985, relevant portion of which has been quoted in the earlier part of the order, the OA was required to be filed within a period of one year from the date of decision of revision petition on 7.4.2004. Admittedly, the OA has been filed on 1.7.2010 after a lapse of more than five years from the last date for filing the OA in terms of the provisions contained under Section 21 of the Act. At this stage, we wish to refer to the decision of the Apex Court in M.R. Sarkars case (supra), which stipulates that the limitation has to be counted from the date of original cause of action and stale matters should not be entertained. At this stage, it will be useful to quote relevant portion of the judgment, which thus reads:
The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. 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 can not be considered as furnishing a fresh cause of action for 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. Moreover, a Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.
13. Thus, the contention put forth by the learned counsel for the applicant that since the order of the revisional authority was communicated to the applicant vide the covering letter dated 5.2.2010 limitation will start from that date, cannot be accepted. It was under these circumstances that the applicant in paragraph 3 of the OA has categorically stated that the application is within limitation prescribed in Section 21 of the Administrative Tribunals Act, 1985 and the application for condonation of delay was filed by the applicant subsequently on 10.9.2010. We are not convinced with the explanation given by the applicant that he did not make any effort to find out the fate of his revision petition, as he was waiting for the result of the criminal proceedings. In case the revision petition was not decided within a period of six months from the date of presentation, the same shall be deemed to have been rejected and the applicant could have approached the Tribunal within a period of one year from the date of expiry of the said period of six months in terms of the provisions contained in Section 21 of the said Act. The applicant has not given any explanation as to why he has not approached this Tribunal in terms of the aforesaid legal provision. Thus, the ipse dixit of the applicant that he was waiting for the outcome of the criminal proceedings, as such he did not think it proper to find out the fate of his revision petition, cannot be accepted and is not a valid explanation in accordance with the statutory provisions, as stated above.
14. That apart, simply because the applicant has been acquitted by the trial court, as the prosecution has failed to prove his case beyond reasonable doubt, will not nullify the order passed by the statutory authority. Thus, we are of the view that it is a case, which is required to be dismissed on the ground of limitation without going into the merits of the case and also without taking into consideration the plea taken by the respondents that the service of the applicant could have been terminated without holding the inquiry, as the applicant was engaged as substantive Bungalow Khalasi on contract basis.
15. For the foregoing reasons, since the applicant has not made out any case for condoning the delay in filing the OA, MA seeking condonation stands dismissed. In view of the dismissal of the MA, the OA also stands dismissed with no order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/