Central Administrative Tribunal - Delhi
Dharam Veer vs Bharat Sanchar Nigam Limited on 15 November, 2016
1 MA No.100/1663/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
M.A. No.100/1663/2015 In
O.A. No. 100/1837/2015
New Delhi this the 15th day of November, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. P.K. BASU, MEMBER (A)
Dharam Veer S/o Sh. Chiranji Lal,
Group ' D', Department - BSNL,
Designation - Casual Labour,
Nature of Grievance: Promotion
R/o 8465, Arya Nagar, Paharganj,
New Delhi - 110 055. ...Applicant
(Argued by: Mrs. Rani Chhabra, Advocate)
Versus
1. Bharat Sanchar Nigam Limited,
Thru. General Manager,
Corporate Office, 102-B,
Statesman House,
New Delhi - 110 001.
2. Assistant General Manager (LE),
Corporate Office, 102-B,
Statesman House,
New Delhi - 110 001.
3. The Chief General Manager,
BSNL, Northern Telecom Region,
Kadwai Bhawan, New Delhi.
4. The Assistant Director General (Pers.IV),
Bharat Sanchar Nigam Limited,
Government of India Enterprises,
Corporate Office, 102-B, Statesman House,
New Delhi - 110 001. ...Respondents
(By Advocate: Shri R.N. Singh)
ORDER (ORAL)
Hon'ble Mr. Justice M. S. Sullar, Member (J) :
The matrix of the facts and material, which needs a necessary mention, for the limited purpose of deciding the 2 MA No.100/1663/2015 matter of condonation of delay, in filing the main Original Application (OA), and exposited from the record is that, applicant, Dharam Veer S/o Chiranji Lal was engaged as Part Time Casual Labour (for brevity "PTCL") w.e.f. October, 1995 in the Department of Telecom Operations (for short "DTO), of Bharat Sanchar Nigam Limited (BSNL), Paharganj, New Delhi. He continued to work up to December, 2001. There was a common seniority list of PTCL, wherein one Naresh Kumar, who had been engaged on 10.05.1996, was shown at Sl.No.12 and one Smt. Guddi engaged in the same year was shown at Sl.No.14. The DTO Office, Paharganj had been closed down in the year 2001 and the applicant was declared surplus w.e.f. October, 2001. However, said Naresh Kumar, who was junior to the applicant and was disengaged on 10.09.1998, was re- engaged on 22.02.2001. Likewise, said Smt. Guddi, who had been engaged in 1995 as Safaiwala in the office of DTO, Parliament Street, was engaged in Central Telegraph Office as Part Time Safaiwala, whereas the respondents failed to consider the case of the applicant on the principle of 'last come first go' despite there being common seniority list. However, the claim of the applicant was negated by the BSNL.
2. Thereafter, applicant filed Writ Petition (C) No.11774/2004 before the Hon'ble High Court of Delhi, which was disposed of, vide order dated 26.10.2005, making reference to the policy of BSNL dated 10.10.2003, that those who have 3 MA No.100/1663/2015 worked on part time basis, could be treated as PTCL provided they had worked for 240 days in the preceding 12 months prior to the date of issuance of the letter. The Hon'ble High Court found, that the respondents had acted in a discriminatory manner, while they had regularized one Naresh Kumar and Guddi, whose services were terminated on account of office being shut.
3. The case of the applicant further proceeds, that in partial compliance of the order dated 26.10.2005 passed by the Hon'ble High Court of Delhi, the respondents had re-engaged the applicant as PTCL, but had neither regularized his services nor given the treatment at par with the said Naresh and Guddi. On the contrary, respondents had declined to regularise the services of the applicant, vide impugned order/communication dated 13.06.2013. Then the applicant filed a Contempt Petition bearing Cont. Case (C) No.740/2013, wherein the Hon'ble High Court directed that it related to a fresh cause of action and needed to be re-adjudicated.
4. Aggrieved thereby, the applicant had preferred the instant main OA bearing No.1837/2015, challenging the impugned order dated 13.06.2013 and claimed regularisation of his services. The OA was, however, dismissed, vide order dated 31.05.2016 by a coordinate bench of this Tribunal.
5. Still dissatisfied with the order of this Tribunal, the applicant filed Writ Petition (C) No.6164/2016, which was 4 MA No.100/1663/2015 allowed, vide order dated 27.07.2016 by Hon'ble High Court. The operative para of the order (para 9 to para 12) reads as under:-
"9. In view of Section 20, the contempt petition was not entertained being barred by limitation. We may also notice that it is the same Single Judge who opined that a fresh cause of action accrued in favour of the petitioner. The Single Judge observed that if at all it gives rise to any cause of action in favour of the petitioner against his nonregularisation, it is only a fresh cause of action which can be agitated by him in an independent writ petition. Thus, for the Tribunal to say that since the High Court was of the opinion that there was delay, the OA could not be entertained by the Tribunal.
10. Accordingly, we remand the matter back to the Tribunal. The Tribunal shall take an independent view as to whether there was delay in filing the OA or not; when the cause of action accrued; whether the petitioner had spent time in other proceedings; and whether the time spent is to be deducted or not and subject to objections which are raised by the respondents. We make it clear that we have not expressed any opinion on the merits of the matter.
11. Resultantly, present writ petition is allowed. The impugned order dated 31.5.2016 is set aside and the matter is remanded back to the Tribunal for fresh hearing. The Tribunal will decide the matter in accordance with law. Pleas of both the parties are kept open.
12. Writ petition stands disposed of."
6. In this view of the matter, now the sole question that arises for our consideration in this case, at this stage is, as to whether there are sufficient grounds to condone the delay in filing the present main OA or not?
7. Having regards to the rival contentions of the learned counsel for the parties, to our mind, the answer must obviously be in the affirmative, in the background of the facts and circumstances of the case.
8. As is evident from the record, that initially applicant has filed the Writ Petition (C) No.11774/2004 and claimed parity with the cases of Naresh Kumar and Guddi. The Hon'ble High Court of Delhi held that the respondents had acted in a discriminatory manner while they had regularised the services 5 MA No.100/1663/2015 of Naresh Kumar and Guddi, whereby the claim of the applicant was ignored. In pursuance thereof, the respondents had reengaged the applicant as PTCL, but did not regularise his services, despite the fact that he had been pursuing the matter through application/representation, but in vain. It necessitated him to file the Contempt Petition bearing No.740/2013 which was disposed of, vide order dated 14.10.2014 holding that fresh cause of action had arisen to the applicant and he should challenge it before the appropriate forum. Thereafter, in pursuance of the order of Hon'ble High Court of Delhi, the applicant filed the instant OA on 12.05.2015 within a period of limitation in this Tribunal.
9. On the contrary, the argument of learned counsel for the respondents that OA is time barred, is neither tenable nor the observation of Hon'ble Apex Court in case S.S. Rathore Vs. State of Madhya Pradesh AIR 1990 (SC) 10, is at all applicable to the facts of the present case, wherein it was held that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months', period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. However, this 6 MA No.100/1663/2015 principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations, not provided by law, are not governed by this principle.
10. Possibly no one can dispute with regard to the above said observation of Hon'ble Supreme Court, but the same is not applicable to the present controversy because in this case, while disposing of Contempt Case bearing No.740/2013, it was ruled that "if at all, it gives rise to any cause of action in favour of the petitioner against his non-regularisation, it is only a fresh cause of action which can be agitated by him in an independent writ petition", vide order dated 14.10.2014. It is not a matter of dispute, that the applicant has preferred the instant OA on 12.05.2015, within a period of limitation in this Tribunal.
11. There is yet another aspect of the matter, which can be viewed entirely from a different angle. As mentioned hereinabove, the applicant has bona fidely availed his legal remedies, by filing the pointed Writ Petitions and Contempt Petitions in the Hon'ble High Court of Delhi. In that eventuality, the period of pendency of these proceeding, prosecuted bonafidely in the Hon'ble High Court of Delhi, has to be excluded, while computing the period of limitation, as contemplated under Section 14 of the Limitation Act, 1963, which postulates that, in computing the period of limitation for any suit, the time during which the plaintiff has been 7 MA No.100/1663/2015 prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Sub-section (2) of Section 14 reads as under:-
"(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
12. Therefore, period of pendency of the Writ Petitions & Contempt Petition and availing the said remedies by the applicant in the Hon'ble High Court of Delhi, has to be excluded for computing the period of limitation. Otherwise also, not regularising the services of the applicant, would give rise him the fresh recurring cause of action against the respondents.
13. This is not the end of the matter. The fundamental jurisprudence and the basic concept of law of limitation are well settled. The Hon'ble Apex Court in cases Ram Nath Sao alias Ram Nath Sahu and others vs. Gobardhan Sao and others, AIR 2002 SC 1201 and The State of West Bengal vs. The Administrator, Howrah Municipality and others, (1972) 1 Supreme Court Cases 366: AIR 1972 SC 749, has reiterated that the expression "sufficient cause" within the meaning of Section 5 of the Act should receive a liberal construction when 8 MA No.100/1663/2015 no mala fide is imputable to a party, so as to advance substantial justice.
14. Sequelly, in case Sital Prasad Saxena (dead) by LRs vs. Union of India and others, AIR 1985 SC 1, it was ruled that the Courts should recall that "what has been said umpteen times that rules of procedure are designed to advance justice and should be so interpreted and not to make them penal statutes for punishing erring parties".
15. Likewise, the Hon'ble Supreme Court in cases N.Balakrishnan vs. M.Krishnamurthy, (1998) 7 SCC 123 and Collector, Land Acquisition, Anantnag and another vs. Mst.Katiji and others, AIR 1987 SC 1353, has held that the legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy and enumerated the following principles:-
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.9 MA No.100/1663/2015
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves. to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned - deliberately, or on account of culpable negligence, or on account of malafides.A litigant does not stand 0 to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing z injustice and is expected to do so".
16. Therefore, the applicant was not going to gain any thing by late filing the present OA. Thus seen from any angle, there are sufficient grounds to condone the delay, as envisaged under Section 5 read with Section 14 of the Limitation Act, 1963, in the obtaining circumstances of the case. The contrary arguments of the learned counsel for the respondents stricto sensu deserve to be and are hereby repelled. The ratio of law laid down by Hon'ble Apex Court in the indicated judgments, is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
17. In the light of the aforesaid reasons, and without commenting further anything on merits, lest it may prejudice the case of either side, during the course of hearing of the main OA, the MA is allowed. The original OA bearing No.1837/2015 filed by the applicant, is hereby treated to have been instituted within a period of limitation.
10 MA No.100/1663/2015
Needless to mention, that nothing observed herein above, would reflect in any manner on the merits of the case, as the same has been so recorded for the limited purpose of deciding the instant application for condonation of delay.
(P.K. BASU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
15.11.2016
Rakesh