Central Administrative Tribunal - Allahabad
Jawahar Lal Yadav vs M/O Defence on 11 January, 2019
Reserved a CENTRAL ADMINISTRATIVE TRIBUNAL, . ALLAHABAD BENCH, ALLAHABAD Allahabad, this the _[| lly day of January, 2019 Present:
Hon'ble Rakesh Sagar Jain, Member (J) Hon'ble Mr. Mohd. Jamshed, Member (A) Original Application No.330/955 of 2017 (U/S 19, Administrative Tribunals Act, 1985) Jawahar Lal Yadav, . A/A 58 years MSD/1513 Sawyer, S/o Late Bihari Lal, R/o COD Chheoki Road, Chheoki, Naini, District-- Allahabad.
eeneene Applicant.
By Advocates -- Shri Harindra Prasad.
VERSUS
1. Union of India the Secretary of Government of India, Ministry of Defense, New Delhi.
Lieutenaunt Colonel, Administrative Officer, Cen Depot, Chheoki, Pin 900479, C/o 56 APO.
t, COD Chheoki Naini, Allahabad tral Ordnance
3. Commandan ..... Respondents.
By Advocate - Shri Arvind Singh RDER
--
Delivered by Hon'ble Mr. Rakesh Sagar Jain:
1. this order disposes of the Application filed for condoning the delay in filing the O.A. The O.A. No. 955 of 2017 has been filed by applicant Jawahar Lal Yadav under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:
(i) Toissue a order or direction quashing/setting aside the impugned order dated 09.05.2015 passed by the respondent No.2 (Annexur cae, e No. 7 t tye 1 of O.A,) 0 the Compilation No. (1) To j issue a order or direction commanding the respondents to take work on the post of Sawyer and overdue payment as directed in the impugned order dated 09.05.2015 passed by the respondent No. 2 may not be recovered or adjusted in instalments.
2.
Case of applicant Jawahar Lal Yadav is that he was appointed as Mazdoor by Commandant, COD Chheoki Naini, Allahabad on a probationary period of 2 years vide appointment letter dated 08.12.1981 and thereafter promoted to the post of Sawyer w.e.f. 29.06.1984 and thereby he completed 33 years of service. The personal officer had given confirmation of his service on the post of Sawyer on 19.06.2014 (Annexure No. A2 to compilation Il).
3. Applicant's further case is that by way of impugned order dated 09.05.2015, respondent No. 2 reverted the applicant back to his post of Mazdoor and that the over payment to this extent paid to the applicant will be adjusted in instalments. Hence the present O.A.
4. Alongside the 0.A., applicant filed an application for condoning the delay in filing the O.A. In the application it has been averred that applicant being a class IV employee did not understand the service rule regulation and that the impugned order dated 09.05.2015 has not been implemented till now and is awaiting the salary,as he before 09.05.2015 was drawing for the post of Sawyer, as such, the applicant was under impression that he had no need to file the same but when he contacted his lawyer and showed the order dated 09.05.2015, he was advised to challenge the same. Hence the delay in filing the present O.A. is not wilful and deliberate but due to unawareness of legal consequence of impugned order and therefore the delay in filing the O.A. be condoned.
ft oF
5. In their objections, the respondents have taken the plea that there is delay of nearly 1 year and 2 months in filing the O.A. The applicant fully knew the consequences of the Impugned order and it is nat the case of the applicant that he did nat have any knowledge of the impugned arder, as such, the period of limitation cannot be condoned, & \We have heard and considered the arguments of the learned counsels for the parties and gone through the material on record.
7. Before proceeding further, to have a full grasp of the dispute involved in the present case, reference may be made to the impugned order 09.05.2015 which reads as under:
" ESTABLISHMENT BRANCH IRREGULAR APPOINTMENT TO THE POST OF SAWYER i. Ref to your representation dt. 31 Mar 2015 on Show Cause Notice No. 181442/Discp/X/Est(I) Dt. 21 Feb 2015.
2. Your reply on Show Cause Notice received vide representation under reference has been examined by the undersigned in the light of official records and Recruitment Rules n the subject as under.-
aj}. You were appointed as Mazdoor in COD Chhecki wef 09 Dec. 1981 and since then, you were engaged to perform your duty to help the skilled tradesmen (Sawyers) at Saw Mill of Misc Sub Depot upto 29 Jun 1984. Thus your actual experience of work for Sawyer trade wef 09 Dec, 1981 to 29 jun 1984. Thus your actual experience of work for Sawyer trade wef 09 Dec 1981 to 29Jun 1984 has been reckoned as 02 years, 06 months & 20 days at the time of your selection for the post of Sawyer by the audit authority which is in contravention to Recruitment Rules as contained in SRO Na. 263/1980 for Sawyer.
b} On release of 04 vacancies for the post Sawyer from Army Headquarter, a requisition was placed before the Regional Employment Exchange Allahabad for sponsoring the eligible candidates and simultaneously, Daily Order Part | was also published in COD Chheoki asking for applications by the desirous eligible unskilled (Mazdoor) employees departmenily who fulfil the following terms & conditions as contained in SRO No. 263/1980. Accordingly 27 (twenty Seven) candidates were sponsored through Employment Exchange Allahabad and 18 candidates including you applied departmently for test/interview in which 10 candidates sponsored through Employment Exchange Allahabad and 15 candidates including you were present before the Board of Officers for undergoing test/interview:-
i. Essential :- Certificate in the trade from recognised Industrial Training Institute of three years training and/or experience of actual work of the trade. i. Desirable :- Middle School Standard. iff. Age :- 18 to 25 years.
c) Before conducting of test/interview, the candidature of each and every candidates as mentioned above was to be scrutinized but as per board proceedings dt. 29 Jun 1984 you had no certificate in the trade from recognised Industrial Training Institute of three years training and/or experience of actual work of the trade except work experience at Saw Mill in Misc. Sub Depot of COD Chheoki.
The: Board of Officers conducted your test/interview without reckoning the essential terms and conditions as contained in SRO No. 263/1980 but only on your work experience at Saw Mill in Misc Sub Depot of COD Chheoki and selected you based on highest marks scored. Accordingly, you were appointed as Sawyer wef 29 Jun 1984,
d) The Govt of India, Ministry of Defence vide para 4 of OM No. 11(1).2002/D(Civ-1) dated 20 May 2003, included the left out trades into three grade structure for promotion/financial upgradation under ACP Scheme. Since prior to above Govt. OM, the Sawyer trade was isolated/left out trade, you were granted first financial upgradation in next higher Pay Scale of Rs. 3200-4900. However, on receipt of above Govt. OM, revision of pay fixation proposal from Pay Scale Rs. 3200-4900 to Rs. 4000- 6000 was forwarded before the audit authority for audit and approval instead of audit and approval f pay fixation proposal, they raised the objection that you were appointed to the post of Sawyer illegally as you had no certificate in the trade from recognised Industrial Training Institute of three years training and/or experience of actual work of the . trade. They simultaneously suagested the department ta regularise the irregular appointment by the competent authority.
a} As suggested by the audit authority, yaur case of irregular appointment to the past of Sawyer was referred to the Govt. Of India, Ministry of Defence through our Higher Headquarter for the purpose but as per integrated HQ of MobB fArmy) letter Na. A/23716/Reclass/Maz to Sawyer/OS-8Cfii) Dt. 11 Jul 2014, instead of regularizing your irregular appaintment, the Govt of india, Ministry of Defence turned down same with the following comments :-
"Para 2. The case was taken up with Mob for seeking advice on further course of action in the matter and the MoD further referred the case to LA {Def} for seeking their view. LA(Def) did not agree to the proposal and stated that Recruitment Rules for every post have been framed under Article 309 of Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the.rules."
AD On receiving the points towards regularization of your irregular appointment through JCM 1V level, your case was taken up with Govt. Of India, Ministry of Defence once again through integrated HQ of MoD {Army) but the same was turned down again with the same comments.
g) Since all possible efforts towards regularization of your irregular appointment to the post of Saywer, were turned down time & again hence, the only option available with the department is to revert you to your previous post of Mazdoor as directed by the Higher Headquarters vide letter No. A/23716/Reclass Maz to Sawyer/OS8-8C{ii}) Dt.
16Feb 2015.
3. In view of the above, the undersigned found your representation not satisfactory and accordingly rejects the same by reverting you to your previous post of Mazdoor wef 29 Jun 1984, It is also intimated that the overpayment _ to this extent paid to you will be adjusted in instalments. Sd/-
{Yash Grover) Lt. Col.
Adm | Offr.
For Comat."
8. Admittedly the impugned order has been passed on 09.05.2015 and the same has been challenged by the way of present O.A. filed on 22.08.2017 which is beyond the period of {imitation prescribed by Administrative Tribunal Act. 1985.
9. In so far as question of "imitation is concerned, Section 21 of the Central Administrative Tribunal Act, 1985 reads as under:-
"(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;
(bh) 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 {4), 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 (i) or subsection (2), an application may be admitted after the period of one year specified in clause (a) or clause (bj) 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 they had sufficient cause for net making the application within such period".
10. A reading of the said section would indicate.that sub-section (1) of Section 21 provides for limitation for redressal of the grievances in clauses (a) and (b) and specifies the period of one year. Sub-section (2). amplifies the limitation of one year in respect of grievances covered under clauses (a) and (b) and an outer limit Of six months in respect of grievances covered by sub-section (2) is provided. Sub-section (3) postulates that notwithstanding anything contained in sub-section (1) or sub-section (2), if the applicant satisfy that he had sufficient cause for not making the the Tribunal applications within such period enumerated in sub-sections (1) and (2) from the date of application, the Tribunal has been given power to condone the delay, on satisfying itself that the applicant has satisfactorily explained the delay in filing the application for redressal of his grievances. When subsection (2) has given power (sic right) for rnaking applications within one year of the grievances covered under clauses (a} and {(b) of subsection (1) and within the outer limit of six months in respect of the grievances covered under sub-section (2), there is no need for the applicant to give any explanation to the delay having occurred during that period. He is entitled, as a matter of right, to invoke the jurisdiction of the court for redressal of his grievances. If the applications come to be filed beyond that period, then the need to give satisfactory explanation for the delay caused till date of filing of the application must be given and then the question of satisfaction of the Tribunal in that behalf would arise.
11. would arise. Sub-section (3) starts with a non obstante clause which rubs out the effect of sub-section (2) of Section 21 and the need thereby arises to give satisfactory explanation for the delay which occasioned after the expiry of the period prescribed in sub-sections (1) and (2) thereof. Since Section 21 {1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application 's 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).
On the question of delay and bar of limitation, reference may be made to the decisions of the Hon'ble Apex Court in the following ¢ cases:
A. Esha Bhattachargee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 Sct 649, after discussing the entire case law on the point of condonation of delay, the Hon'ble Apex Court has culled out certain principles as under:-
"91. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. The terms "sufficient cause' should be understood in ™ their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-
situation. | 21.3. Substantial justice being paramount and pivotal the:
technical considerations should not be given. undue and -
uncalled for emphasis.
414, Ne presun as ) p iption can be attached to deliberate cous eh tlon of delay but, gross neallgence on th re natin © part counsel of litigant is ta he taken note of part of the 215, Lock of bene fides Imputahie te purty seeki condanation of delay is a significant and relevant fac, "
21.6. it is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant sa that in the ultimate eventuate there is no real failure of justice.
21.7. The concept of liberal approach has to encupsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. There is a distinction between inordinate deiay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental -- principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. The entire gamut of facts are to be carefully scrutinized and the approach should be based on the.
paradigm of judicic f judicial discretion Which j 1S founded on objective r i easoning and not on individuat Perception.
21.13. t ali The State Or a public body oran entity representing a collective cause should be given some accept
22. To the aforesaid principles we ma P able latitude. guidelines taking nate of the present : add some more are: - oo ay scenario. They 22.1. An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. Though no precise formula can be laid down regard bein conscious effort for achieving consistency and collegiality of as that is the g had to the concept of judicial discretion, yet a the adjudicatory system should be made ultimate institutional motto.
22.4, The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters".
_ In Chennai Metropolitan Water Supply and Sewarage Board and Others Vs. 7.7. Murali Babu (2014) 4 SCC 108, it was held by the Hon'ble Apex Court as under:-
"13, First, we shall deal with the facet of delay. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and others[AIR 1969 SC 329] the Court referred to the principle that has been stated Armstron g Hurd, Abram Farewall, and Jahn Kem PC 224], which is as follows: - pl(1874) 5 "Now the doctrine of laches in Courts of Equity is not an arbitrary or a@ technical doctrine. Where ; practically unjust to give a remedy, ej eM toue te has, by hi ney, elther because the party » by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of | time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
. State of Maharashtra v. Digambar,(1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Hon'ble Apex Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the persan seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
12. Thus, the doctrine of delay and laches should not be lightly brushed aside. A court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant -- a litigant who has forgotten the basic norms, namely, "orocrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
13. Looking to the settled law it is 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.
A 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.
14.' In the present case, the applicant on his own showing is seeking relief pertaining to the year 2015. Therefore the cause of action occurred to the applicant in the year 2015. The reason given by the applicant for not filing the O.A. in time is that he did not understand the legal consequence of the impugned order. However, the reason cannot stand ground for the simple fact that he gave a detailed reply to the show cause notice given to him and he fully understood the contents of the show cause notice and gave his reply accordingly.
15. The applicant has not adduced sufficient cause that prevented him from filing the Application within the prescribed period of limitation. In a recent decision in SLP (C) No.7956/2011 ° (CC_No.3709/2011) in the matter of D.C.S. Negi vs. Union of india & Others, decided on 07.03.2011, it has been held by Hon'ble High Court that "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)'. : Aan gute :
16. In the light of the aforesaid observation of the Hon'ble Supreme Court, the law down in a catena of judgments is that an aggrieved party has to approach the court within the statutory period prescribed and after the expiry of that period, the Court cannot grant the relief prayed for. Hence, looking to the aforementioned reasons, the applicant does not deserve any indulgence in entertaining the OA by condoning the period of limitation. The present O.A. is barred by period of limitation.
17. Even going on merit, the relief for reversion of applicant does not consideration. Respondents' case being that applicant was given the promotion in violation of rules which cannot be perpetuated and which was set right by the respondents. In this regard, reference may be made to the law laid down by the Hon'ble Apex Court wherein it has been held that an appointment made under a mistake, the said authority is at liberty to set right the mistake of making an irregular/illegal appointment as under:-
i. "Amol v/s State of Maharashtra, (2018) 1 SCC {L&S) 12 wherein an appointment offered on mistake of fact was corrected on verification of records was upheld by the Hon'ble Apex Court which observed that :'The issues raised in these appeals have been dealt with by this Court vide judgment dated 07.11.2017 rendered in Civil-Appeal No.7938/2010 titled Amol v. The State of Maharashtra and Ors., wherein this. Court has upheld the stand taken by the High Court on verification of records that the candidates are not otherwise eligible to be appointed in terms of their merit. The appointment already offered to them was on a mistake of fact, which has only been corrected on verification of the records".
il. Pratap Kishore Panda v/s Agni Charan Das, (2018) 1 SCC (L&S) 371 wherein "The Umadevi doctrine is that if employment of persons is contrary to or de hors the statutory provisions and/or Rules and Regulations, then equities will not have any play even if such persons have been rendering services for several years.
iil, State of MP. v/s Shyama Pardhi, (1996) 7 SCC 118 "(t is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later . appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question or violation of the principles of natural justice does not arise. "
18... In view of the settled law as laid down by the Hon'blie Apex Court it is clear that if employment of person is contrary to or de hors the statutory provisions and/or Rules and Regulations, then equities will not have any play even if such person has been rendering services for several years.
19. Insofaras the relief concerning the recovery of money from the applicant is concerned, it can be said that it gives the applicant a recurring cause of action, as such, there is no question of delay in seeking the said relief. The learned counsel for the applicant besides reiterating the pleadings in the OA submitted that before ordering and effecting recovery for alleged excess payment made to him, the respondents did nat put the applicant on notice, which is a cross violation of | principles of natural justice. He further submitted that the applicant has not indulged into any Act of concealment, fraud or misrepresentation for securing more pension than what he was entitled to. He submitted that in terms of law laid down by the Hon'ble Apex Court in State of Punjab and Ors Vs. Raf . % Vs. Rafiq Masth (White Washer) & Ors. [(2015) 4 SCC 334], no such recove be made from the applicant. vere
20. Per contra, learned counsel for respondents argued that the applicant has been paid excess amount as explained by the respondents in the reply. Hence, this excess amount paid to the applicant is required to be recovered from him. He further argued that Hon'ble Apex Court in case of High Court of Punjab and Haryana and Ors. Vs. Jagdev Singh [AIR 2016 SC 3523] has held that the mistakes committed while granting financial benefits to the Government servant can be rectified and excess amount paid can be recovered. He further submitted that the Hon'ble Apex Court has distinguished its judgment in Rafiq Masih (supra) case in its judgment in Jagdev Singh.
21. It is an admitted fact that the applicant had no role to play in the disbursement of wages to him at the rate fixed by the ondents at any point of time. He has also not indulged into Admittedly, he resp any act of concealment or misrepresentation.
was ina post falling in Group 'C' category.
22. Undisputedly, rectification by respondents has entailed into a recovery from the applicant as communicated to him vide impugned order dated 09.05.2015, In this regard, We would like to mention here that the Hon'ble Apex Court in the case of Rafiq Masih (supra) has clearly held that no such recovery can be made from Group 'C' employee, also particularly, in view of the fact that excess payment has been made due to the mistake of the re spondents and not due to any misrepresentation or concealme . oe "
_ conceal nt on the part of the applicant, We, therefore, hold 1?
that no recovery should be made from the applicant for any excess payment made to him. Therefore the impugned order dated 09.05.2015 to the extent of effecting recovery from the applicant is held illegal and is hereby quashed and set aside. The amount, if any, recovered from the applicant so far on this account shall be refunded to him by the respondents within three months from the date of this order.
pardabpita ken \ew berdema tisk of dabor
23. The O.A/is accordingly disposed off. No order as to costs. mo ( motio sanSieo) ----=~SC«(RAKESH SAGAR JAIN) ; MEMBER (A) MEMBER (J) /Shashi/