Calcutta High Court (Appellete Side)
Ajit Kumar Jha vs Union Of India & Ors on 19 February, 2020
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3 19.02.2020
Sc CAN 7112 OF 2015
(Application for stay)
in
FMA 3044 OF 2015
Ajit Kumar Jha
-vs.-
Union of India & Ors.
-----------------------
Ms. Pampa Dey (Dhabal) Ms. Sangita Banerjee.
....For the Appellant/ Applicant.
Mr. Aurobindo Sen Ms. Susmita Saha Dutta.
....For the Respondents.
1. The appellant was a Senior Commandant of the Central Industrial Security Force. Following disciplinary proceedings, the appellant was dismissed from service by an order dated May 17, 2013 passed by his disciplinary authority.
2. Rule 46 of the Central Industrial Security Force Rules, 2001 (herafter the CISF Rules) provides an avenue for appeal before an appellate authority. The period of limitation for filing an appeal is provided in Rule 47 of the CISF Rules. Any person, aggrieved by an order of the nature specified in Rule 46, is required to submit an appeal within thirty days from the date on which a copy of the order, proposed to be appealed against, is received by him. The proviso to Rule 47 confers power on the appellate authority to entertain a time-barred appeal, if the appellant shows sufficient cause for not submitting the appeal in time.
3. The appellant filed an appeal on February 20, 2015. Obviously, the appeal was time-barred; as such, an application was filed by the appellant seeking 2 condonation of delay. In such application he enclosed documentary evidence in support of his contention that he was suffering from various ailments between June 10, 2013 and February 18, 2015 and claimed that his ill-health prevented him to file the appeal.
4. The appellate authority considered the application and proceeded to pass the following order dated April 22, 2015 :
"WHEREAS, No.062305550 Ex-Const. (GD) Ajit Kumar Jha formerly of CISF Unit, KoPT Kolkata submitted an application dated 20.02.2015 seeking permission to prefer appeal against the penalty of 'Dismissal from Service" awarded by Sr. commandant, CISF Unit KoPT Kolkata vide Final Order No. (3729) dated 17.05.2013 after a lapse of about two years.
02. AND WHEREAS, the applicant in his application has mentioned that he was suffering from various ailments from 10.06.2013 to 18.02.2015 which averted him from submission of appeal on time. having perused the medical certificates produced by him it appears that he was undertaking treatment of TB from Sub-divisional Hospital Bokaro from 10.06.2013 to 17.02.2014 and the treatment of Jaundice & UTD from 15.02.2014 to 1802.2015 as outdoor patient. As he was taking treatment as an Outdoor Patient, there was ample time for him to prefer appeal against the awarded penalty within the prescribed period of 30 days.
03. AND WHEREAS, as per Rule-47 of CISF Rules, 2001, no appeal shall be entertained unless it is submitted within a period of 30 days from the date of receipt of final order and there must be sufficient cause for not preferring the appeal in time.
04. NOW THEREFORE, I, the undersigned, of the view that the applicant had enough time to prefer appeal within the prescribed time limit but without doing so he has wasted the opportunity of preferring appeal against the awarded penalty. Hence, his request for preferring appeal vide application dated 20.02.2015 stands rejected as the appeal is not maintainable at this belated stage."
5. The order of the appellate authority was challenged by the appellant in a writ petition [W.P. 12744 (W) of 2015] out of which this appeal arises. A learned 3 Judge of this Court by His Lordship's order dated June 25, 2015 dismissed the writ petition. The said order reads as follows :
" Let the affidavit-of-service filed in Court today be taken on record.
Having heard the learned advocates for the parties and upon perusing the instant writ petition, it appears that the subject-matter of challenge is an order dated 22nd April, 2015, whereby the appellate authority has rejected the petitioner's application dated 20th February, 2015, to file his appeal at a belated stage.
The impugned order does not warrant any interference by the writ Court primarily because of cogent reasons provided by the concerned authority while rejecting the petitioner's prayer, which is clearly evident from paragraph 3 of the impugned order. That apart and in any event, the writ Court cannot transpose itself and become an appellate authority in order to sit in appeal over a decision rendered by a competent appellate authority in accordance with law.
For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed."
6. It would appear on a bare reading of the impugned appellate order dated April 22, 2015 that though the appeal was belatedly filed (nearly two years after the order of dismissal was passed), the appellant had sought to explain the belated approach by enclosing documentary evidence to show that he was undertaking treatment for tuberculosis at Sub-divisional Hospital, Bokaro from June 10, 2013 to February 17, 2014 and treatment for jaundice and UTD from February 15, 2014 to February 18, 2015 as an outdoor patient. The appellate authority was of the view that since the appellant had been taking treatment as an outdoor patient, he had ample time to prefer an appeal against the awarded penalty within the prescribed period of thirty days; hence, sufficient cause not having been shown, there was no question of condonation of delay.
7. It is this order of the appellate authority that has been upheld by the learned Judge in the order impugned.
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8. We cannot but hide our disappointment at the manner by which the appeal was considered by the appellate authority and the writ petition by the learned Judge of the writ Court. There has been no finding that the documentary evidence, produced by the appellant to support his claim of suffering from various ailments, were not genuine. It could be so that the appellant was not admitted in any hospital during the last course (of two years by which the appeal was time-barred) but the very fact that he had been taking treatment for jaundice and UTD as an outdoor patient would suggest that he may not have been in the right frame, both physically and mentally, to prefer an appeal within the shortest possible time. There was indeed sufficient cause preventing the appellant from filing the appeal earlier. The lack of application of mind as well as compassion shown by the appellate authority as well as by the learned Judge of the writ Court, on facts and in the circumstances, cannot be countenanced and, therefore, we find no reason to uphold the order impugned.
9. For the reasons as aforesaid, we set aside the appellate order dated April 22, 2015 as well as the order under challenge dated June 25, 2015.
10. The delay in filing of the appeal by the appellant under Rule 46 of the CISF Rules is condoned. The appellate authority is directed to consider and dispose of the appeal on merits as early as possible, preferably within two months from date of receipt of a copy of this order.
11. Needless to observe, we have refrained from expressing any opinion on the merits of the appeal filed by the appellant under Rule 46 of the CISF Rules. 5
12. This order disposes of the appeal as well as the application for stay. There shall be no order as to costs.
Photostat certified copy of this order, if applied for, be furnished expeditiously.
(Madhumati Mitra, J.) (Dipankar Datta, J.)