Central Administrative Tribunal - Lucknow
Vikas Awasthi vs Union Of India on 20 January, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
LUCKNOW
M.A. No. 112 of 2021 in
Original Application No. 187 of 2010
This the 20th day of January, 2023
Hon'ble Mr. Justice Anil Kumar Ojha, Member - J
Vikas Awasthi aged about 33 years, son of late Anil Kumar
Awasthi, r/o H. No. 135/DEF, Jamunia Bag, Railway
Colony, Kanpur Cantt.
............ Applicant
By Advocate:
Sri Karuna Shankar Bajpai
VERSUS
1. Union of India through Secretary, Ministry of Defence,
Govt. of India, New Delhi.
2. E-in-C's Branch (EIC(4), IHQ, MoD (Army), Kashmir
House, DHQ-PO, New Delhi - 11.
3. HQ Chief Engineer, EIC (I), Central Command,
Lucknow-02.
4. Garrison Engineer (I) B/R (AF), Chakeri, Kanpur.
............ Respondents
By Advocate: Ms. Prayagmati Gupta
O R D E R (ORAL)
Heard learned counsel for the applicant, learned Sr. Standing Counsel for the respondents and perused the records.
M.A No. 112 of 2021 has been filed by the applicant to recall the order dated 25.11.2016 whereby recall application No. 594/2014 has been dismissed for non-prosecution.
Submission of the learned counsel for the applicant is that O.A No. 187/2010 was dismissed on 14.02.2014 for want of prosecution and as soon as applicant came to know about dismissal order immediately consulted his counsel and filed recall application which was listed on 25.11.2016 but counsel could not appear before the Court to press recall application so it was dismissed for non-prosecution.
2Further submitted that counsel for the applicant did not communicate the aforesaid dismissal order so applicant could not file recall application within limitation. Further argued, due to surge of the Covid Virus pandemic all over the country in the year 2020, applicant could not approach the counsel.
Applicant's counsel did not inform about recall application to the applicant for long time, hence, applicant approached to the present counsel. Counsel for the applicant inspected the documents and filed instant recall application.
Further submitted that if order dated 25.11.2016 is not recalled then there would be irreparable loss to the applicant as matter pertains to the claim of compassionate appointment under dying in harness.
Per contra, learned counsel for the respondents vehemently opposed the recall application and submitted that it is the settled law that cases should not be disposed of on technical grounds but Court should lean in favour of granting opportunity of hearing. Applicant should explain the delay on day-to-day basis with sufficient causes.
Real test is to determine the delay is to see that lapse of time is not attributable to laches or negligence of the applicant.
Learned counsel for the respondents relied upon the following authorities:
(i) Collector, Land Acquisition, Anantnag & Ors Vs. Katiji & Ors , 1987 (2) SSC 107.
(ii) M/s Dehri Rohtas Light Railway Company Ltd.
Vs. District Board Bhojpu & Ors, 1992 (2) SSC
598.
(iii) UoI & Ors Vs. FCI, Letter Patent Appeal No. 1058/2019 in Civil W.P No. 4438/2009.
(iv) Maniben Devraj Shah Vs Municipal Corporation of Brihan, Mumbai, (2012) 5 SCC 157 and
(v) Balwant Singh (Dead) Vs Jagdish Singh & Ors, (2010) 8 SCC 685 Learned counsel for the respondents further submitted that applicant have to justify the delay of four years. It is apparent that applicant is not interested in pursuing this case and delay should not be condoned.
Applicant filed RA through M.A No. 335/2022 stating, interalia, therein that delay condonation application deserves to be allowed and relied upon the following authorities:
(i) Collector Land Acquisition Vs Kati ji & Ors, 1987 (13) ALR 306 (SC).3
(ii) B. Madhuri Goud Vs B. Damodar Reddy, (2012) 12 SCC 693.
(iii) N. Balakrishnan Vs M. Krishnamurthy, (1998) 7 SCC 133.
(iv) Smt. Prabha Vs Ram Prakash Kalra, 1987
(Suppl.) SCC 338.
(v) New India Insurance Co. Ltd. Vs Smt. Shanti
Misra, AIR 1976 SC 237.
(vi) Shakuntala Devi Jani Vs Kuntal Kumari, AIR
1969 SC 575 and
(vii) Ajay kumar Maurya Vs State of U.P & Ors, W.P No. 657/2022 (Writ-A).
It has also been stated that alleged delay is neither intentional nor deliberate. Hence, delay in filing the recall application should be condoned.
Learned counsel for the applicant further filed supplementary affidavit through M.A No. 2109/2022 citing the order of the Hon'ble Apex Court regarding suo moto cognizance in reference to extension of limitation by way of Suo moto Writ Petition (C) No. 3 of 2020 and submitted that period of limitation from 15.03.2020 to 28.02.2022 shall stand exclude for the purpose of limitation.
Considered the submissions of the learned counsel for the parties.
Perusal of the record reveals that O.A No. 187/2010 was dismissed for want of prosecution on 14.02.2014. Applicant preferred recall application which was again dismissed on 25.11.2016 and to recall aforesaid order dated 25.11.2016 present recall application No. 112/2021 has been filed.
Covid pandemic started in December 2019 in China. Hon'ble Apex Court taking Suo-moto cognizance in reference to extension of limitation by way of Suo moto Writ Petition (C) No. 3 of 2020 and ordered exclusion of period from 15.03.2020 to 28.02.2022 for the purpose of limitation.
Now applicant has to explain the delay from 25.11.2016 to 14.03.2020 which nearly stand more than 3½ years.
In the case of Chennai Metropolitan water supply and Sewerage Board and others Vs. T.T Murali Babu, (2014) 4 SCC 108, the Hon'ble Apex Court has held as under:
"15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and others etc. etc.[9] the Court observed that it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. It has been further stated therein that if there is inordinate 4 delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ 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 constitutional 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, "procrastination 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. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent- employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
In the case of Union of India Vs. M.K. Sarkar, (2010) 2 SCC 59, the Hon'ble Supreme Court has stated that:
"9. 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. The ill- effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115 :5
"The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
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. 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".
In the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157, the Hon'ble Supreme Court has held as under:
"12. .......... The law of limitation is founded on public policy. The Limitation Act, 1963 has not been enacted with the object of destroying the rights of the parties but to ensure that they approach the Court for vindication of their rights without unreasonable delay. The idea underlying the concept of limitation is that every remedy should remain alive only till the expiry of the period fixed by the Legislature. At the same time, the Courts are empowered to condone the delay provided that sufficient cause is shown by the applicant for not availing the remedy within the prescribed period of limitation. The expression sufficient cause used in Section 5 of the Limitation 6 Act, 1963 and other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which serve the ends of justice. No hard and fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years this Court has advocated that a liberal approach should be adopted in such matters so that substantive rights of the parties are not defeated merely because of delay.
13. In Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361, this Court while interpreting Section 5 of the Limitation Act, laid down the following proposition:
In construing Section 5 (of the Limitation Act), it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree- holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.
14. ..........
15. ..........
22. Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act.
Hon'ble Apex Court in the case of Sabarmati Gas Ltd. Vs Shah Alloys Ltd. in Civil Appeal No. 1669 of 2020 decided on 04.01.2023 has held that 'Sufficient cause' is the cause for which party could not be blamed.
Thus, law on the point of limitation is that doctrine of delay and laches should not be lightly brushed aside. A Court is not expected to give indulgence to such indolent persons who compete with Kumbhakarna or for that matter Rip Van Winkle.
Applying the aforesaid principles to the present case, it is evident that the applicant has filed recall application after nearly more than 3½ years of the dismissal of the recall 7 application for default and explanation given by the applicant for delay in filing of the delay condonation application is not satisfactory.
Delay condonation application lacks merits and is liable to be dismissed.
Accordingly, delay condonation application is dismissed.
Connected M.P(s), if any, also stand disposed of.
No order as to costs.
(Justice Anil Kumar Ojha) Member (J) RK