Allahabad High Court
Arun Prasad S/O Praveen Prasad vs U P Public Service Tribunal Indra Bhawan ... on 6 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 107
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- SERVICE BENCH No. - 748 of 2010 Petitioner :- Arun Prasad S/O Praveen Prasad Respondent :- U P Public Service Tribunal Indra Bhawan Lko.Thr.Its Counsel for Petitioner :- Raj Kumar Verma,Mateen Ahmad Khan,Saiyed Afzal Abbas Rizvi Counsel for Respondent :- C.S C Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioner and learned Standing Counsel.
Facts in brief of the present case are that initially petitioner filed Claim Petition No.1987 of 1997, which was admitted by order dated 29.09.1997 passed by State Public Services Tribunal, Lucknow (in short "Tribunal"). Subsequently, by order dated 02.09.2004, the said claim petition was dismissed in default, which reads as under :-
"None appears on behalf of the petitioner and on last date also, none was present in the Court, hence, the claim petition is dismissed in default."
Thereafter, an application (Restoration Application No.103 of 2009) for recall of the order dated 02.09.2004 passed in Claim Petition No.1987 of 1997 was moved, which was also dismissed by order dated 01.10.2009. The same reads as under :-
"A restoration application has been filed to recall the order dated 02.09.2004 and has been prayed that petition be restored to its original number. It has been pointed out that claim petition had been filed through Sri Asif Husain, Advocate and CA/WS and R.A. were duly exchanged but later since the learned counsel for the petitioner did not appear the claim petition was dismissed in default on 02.09.2004. Since he did not receive any information about the status of the claim petition he contacted Sri R. C. Dwivedi, Advocate and Sri Rajan Roy, Advocate and after inspection of relevant file on 29.06.2009 he came to know that claim petition had been dismissed in default. According to him a similar claim petition no.1986/97 Uma Shankar Verma vs. State of U.P. and others, had been finally decided on 22.01.2007. He has prayed to restore the claim petition on its original number. Petitioner had filed this restoration application on 28.07.2009 while the claim petition was dismissed in default on 02.09.2004 and none had been appearing in the case after 05.09.2003. The restoration application is highly time barred and reasons afforded by the petitioner are not found to be sufficient. Accordingly, the petitioner is not eligible for any relief and the restoration application is dismissed. Consign to record."
In view of the above said factual background, the petitioner has approached this Court by filing the present writ petition for quashing the orders dated 01.10.2009 as well as 02.09.2004 passed by State Public Services Tribunal, Lucknow.
We have heard learned counsel for the parties and going through the records.
We find from the averments made in the affidavit filed in support of application for restoration and recall of the order dated 02.09.2004 filed before the Tribunal that in the same it was specifically pleaded that "the petitioner did not receive any information about the dismissal of the claim petition in default either through his counsel or through the Hon'ble Tribunal" and it also appears that on inspection of the file on 29.06.2009 the petitioner could know about the order dated 02.09.2004 and within 30 days i.e. on 28.07.2009, the application for recall of the order dated 02.09.2004 was filed. Needless to say that the counsel, who was engaged by the petitioner to conduct the case, failed to appeal in the case on the date fixed i.e. 02.09.2004 and on account of the same the claim petition was dismissed in default.
Rule 22 of U.P. Public Services Tribunal (Procedure) Rules, 1992 provides for communication of order to the parties, the same is quoted below :-
"(1) Every interim order, granting or refusing or modifying interim relief and final order shall be communicated to the petitioner and to the concerned respondent or to their counsel, either by hand delivery or by post free of cost :
Provided that unless ordered otherwise by a Bench, a copy of the final order need not be sent to any respondent who has not entered appearance :
Provided further that when the petitioner or the respondent is represented by a counsel, under a single Vakalatnama, only one copy shall be supplied to such counsel as named therein.
(2) If the petitioner or the respondent to any proceeding requires a copy of any document or proceeding the same shall be supplied to him on such terms and conditions on payment of such fees as provided in these rules."
It appears from the order dated 01.10.2009 that the Tribunal has not recorded any finding, while rejecting the application for restoration and recall of the order dated 02.09.2004, on the point of knowledge of the petitioner with regard to the order dated 02.09.2004 after taking into account the Rule 22 of the Rules of 1992 and the specific statement of the petitioner made by him in the application for restoration and recall of the order dated 02.09.2004 that on inspection of file on 29.06.2009 it was found that the case was dismissed in default on 02.09.2004.
Rule 15 of the Rules of 1992 provides that an application for restoration should be filed within thirty days from the date of dismissal. Rule 15 on reproduction reads as under :-
"(1) Where on the date fixed for hearing of the petition or on any other date to which such hearing may be adjourned, the petitioner does not appear when the petition is called for hearing, the Tribunal may, in its discretion, either dismiss the petition for default or hear and decide it on merit.
(2) Where a petitioner has been dismissed for default and the petitioner files an application within thirty days from the date of dismissal and satisfies petitioner was called for hearing, the Tribunal shall make an order setting aside the order dismissing the petition and restore the same :
Provided that, where the case was disposed of on merits the decision shall not be re-opened except by way of review."
In the judgment passed in the case of D. Saibada vs. Bar Council of India & Anr., (2003) 6 SCC 186 the Hon'ble Apex Court has observed that the "date of order" means the date of communication or knowledge of order. The relevant paras are quoted below :
"9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.
10. An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer [AIR 1961 SC 1500 : (1962) 1 SCR 676] . Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that "the date of the award" cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words "the date of the award" occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words "from the date of the Collector's award" was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively.
11. The view taken in Raja Harish Chandra Raj Singh case [AIR 1961 SC 1500 : (1962) 1 SCR 676] by a two-Judge Bench of this Court was affirmed by a three-Judge Bench of this Court in State of Punjab v. Qaisar Jehan Begum [AIR 1963 SC 1604 : (1964) 1 SCR 971] . This Court added that the knowledge of the award does not mean a mere knowledge of the fact that an award has been made; the knowledge must relate to the essential contents of the award.
12. In Asstt. Transport Commr. v. Nand Singh [(1979) 4 SCC 19] the question of limitation for filing an appeal under Section 15 of the U.P. Motor Vehicles Taxation Act, 1935 came up for the consideration of this Court. It provides for an appeal being preferred "within thirty days from the date of such order". The taxation officer passed an order on 20-10-1964/24-10-1964 which was received by the person aggrieved on 29-10-1964. The appeal filed by him was within thirty days -- the prescribed period of limitation, calculated from 29-10-1964, but beyond thirty days of 24-10-1964. It was held that the effective date for calculating the period of limitation was 29-10-1964 and not 24-10-1964.
13. In Raj Kumar Dey v. Tarapada Dey [(1987) 4 SCC 398] this Court pressed into service two legal maxims guiding and assisting the court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, maybe kept in the file and consigned to the record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced.
14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed.
15. In O.N. Mohindroo v. District Judge, Delhi [(1971) 3 SCC 5] interpreting the pari materia provision contained in Section 44-AA of the Act, this Court held that the word "otherwise" used in the context of the power of review exercisable "of its own motion or otherwise" must be assigned a wide meaning and it will cover a case where the review jurisdiction is sought to be exercised by a reference made to the Bar Council. The provision entitles a person aggrieved to invoke review jurisdiction of the Bar Council by moving an appropriate petition for the purpose. It was also held that the review jurisdiction conferred on the Bar Council is wide and reference cannot be made to the provisions of the Civil Procedure Code so as to limit the width of review jurisdiction by drawing an analogy from the provisions of the Civil Procedure Code or the Criminal Procedure Code.
16. Placing such a construction, as we propose to, on the provision of Section 48-AA is permitted by well-settled principles of interpretation. Justice G.P. Singh states in Principles of Statutory Interpretation (8th Edn., 2001) :
"It may look somewhat paradoxical that plain meaning rule is not plain and requires some explanation. The rule, that plain words require no construction, starts with the premise that the words are plain, which is itself a conclusion reached after construing the words. It is not possible to decide whether certain words are plain or ambiguous unless they are studied in their context and construed." (p. 45) The rule of literal interpretation is also not to be read literally. Such flexibility to the rule has to be attributed as is attributable to the English language itself.
17. The learned author states again :
"In selecting out of different interpretations ''the court will adopt that which is just, reasonable and sensible rather than that which is none of those things', as it may be presumed ''that the legislature should have used the word in that interpretation which least offends our sense of justice'." (p. 113, ibid) "The courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative ''on the principle expressed in the maxim: ut res magis valeat quam pereat'." (p. 36, ibid) "If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results." (pp. 112-13, ibid)
18. Reading word for word and assigning a literal meaning to Section 48-AA would lead to absurdity, futility and to such consequences as Parliament could have never intended. The provision has an ambiguity and is capable of being read in more ways than one. We must, therefore, assign the provision a meaning -- and so read it -- as would give life to an otherwise lifeless letter and enable the power of review conferred thereby being meaningfully availed and effectively exercised."
It appears from the record that the petitioner has specifically stated before this Court as well as before the Tribunal that on inspecting the file of Tribunal on 29.06.2009, he came to know about the order dated 02.09.2004, whereby the claim petition was dismissed in default, and the said order was never communicated by the counsel for the petitioner nor by the Tribunal. The arguments made by the petitioner in regard to knowledge of order dated 02.09.2004 have not been refuted by the respondents.
It is also evident from the record that the application for restoration was filed on 28.07.2009, within thirty days from the date of inspection of file i.e. 29.06.2009, on which date the petitioner came to know about the order dated 02.09.2004.
The Hon'ble Supreme Court in the case of Ramji Dass and others v. Mohan Singh, 1978 ARC 496 has held that as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. In that case the appeal was filed against an ex parte decree after eight years and the District Court as well as the High Court had rejected the matter on the ground of delay. Setting aside the order of the High Court, Hon'ble Justice V.R. Krishna Iyer observed as under:
"... we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interest of Justice which always informs the power under S. 115 C.P.C. ..."
In the case of Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353, the Supreme Court has held that "no one has vested right in injustice being done because of non-deliberate delay. If substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred."
In the case of N. Balakrishnan V. M. Krishnamurthy reported in (1998) 7 SCC 133 the Apex Court explained the scope of limitation and condonation of delay, observing as under:
"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 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 for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy."
In the case of Smt. Prabha V. Ram Prakash Kalra reported in 1987 (Suppl.) SCC 338 the Supreme Court took the view that "the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay."
In the case of Vedabai @ Vaijayanatabai Baburao Patil V. Shantaram Baburao Patil and others reported in 2001 (44) ALR 577 (SC) the Apex Court made a distinction in delay and inordinate delay observing as under:
"In exercising discretion under section 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the consideration of prejudice to the otherwise will be a relevant factor so the case calls for a more cautious approach...."
In view of above, we are of the view that application for restoration of claim petition and recall of the order dated 02.09.2004 ought not to have been rejected on the ground that the same is highly barred by time that too without recording any finding on the point of knowledge of the petitioner about the order dated 02.09.2004.
In facts of the case it would be appropriate to refer the judgment of Division Bench of this Court dated 30.11.2011 passed in Special Appeal No.2130 of 2011 (Jai Prakash Pathak vs. Dios and another), the same reads as under :
"This intra court appeal is preferred against the order of learned Single Judge dated 21.10.2011 rejecting the application seeking recall/restoration of the writ petition which was dismissed in default vide order dated 04.11.2003.
We have heard learned counsel for the appellant and learned Standing Counsel for the respondents.
It is vehemently contended that as the counsel appearing for the applicant-appellant was elevated to the Bench of this Court hence effective pairvi could not be done and therefore, the writ petition was dismissed in default. It is further submitted that when the petitioner got the knowledge of dismissal of the writ petition, he immediately filed the restoration application which has been dismissed by the learned Single Judge.
On the other hand learned Standing Counsel submits that the appellant is guilty of laches and negligence inasmuch as he did not bother to enquire from his counsel about the fate of the writ petition, therefore, he does not deserve to get any relief. He further submits that the order of learned Single Judge does not suffer from any error.
We have considered the submissions of learned counsel for the parties and do not find any force in the submissions of learned Standing Counsel for the reason that nothing has been brought on record to show that the order of dismissal of the writ petition in default was conveyed to the petitioner-appellant. Therefore, it is difficult to hold that the appellant deliberately, despite having knowledge of his writ petition being dismissed, did not file the restoration application within time and, as such, cannot be said to be guilty of negligence and laches. That apart, it is well settled legal position that for the fault of lawyer, litigant should not be made to suffer. Reference may be had to the judgments of the Apex Court in Rafiq & Anr. Vs. Munshilal & Anr., AIR 1981 SC 1400 and Secretary, Department of Horticulture, Chandigarh & Anr. Vs. Raghu Raj, AIR 2009 SC 514.
We are, therefore of the view that the order rejecting the application for condonation of delay and the recall application cannot sustain.
In view of above, this appeal deserves to be allowed.
In the result, the appeal succeeds and is hereby allowed. The order of the learned Single Judge dated 21.10.2011 is set aside. Application No. 228803 of 2009 seeking condonation of delay in filing the restoration application and the Restoration/Recall Application No. 228804 of 2009 are hereby allowed. Consequently, the order dated 04.11.2003 dismissing Writ Petition No. 10881 of 1989 in default is recalled and the writ petition is restored to its original number.
Let the writ petition be placed for disposal at an early date before the appropriate Bench."
Taking into consideration the facts of the case and observations made by us as well as above referred settled principles of law including that if technical justice is pitted with against the substantial justice, the way should be given to the substantial justice, the writ petition is allowed and the orders dated 01.10.2009 as well as 02.09.2004 passed by State Public Services Tribunal, Lucknow are set aside and the claim petition is restored to its original number and the matter is remanded back to the State Public Services Tribunal, Lucknow to make all endeavour to decide the claim petition on merits within a period of six months from the date of receiving a certified copy of this order in accordance with law.
(Saurabh Lavania,J.) (Anil Kumar,J.)
Order Date :- 6.1.2020
Mahesh