Central Administrative Tribunal - Cuttack
Beenaya Kumar Pradhan vs D/O Post on 7 December, 2023
1 OA 260/00534 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00534 of 2019
Reserved on: 06.12.2023 Pronounced on : 07.12.2023
CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER (A)
HON'BLE MR. RAJNISH KUMAR RAI, MEMBER (J)
1. Beenaya Kumar Pradhan, aged about 58 years, S/o. Late
Hrushikesh Pradhan, APM (Accounts), Dhenkanal H.O.
759001, residing At/Po: Ranjagal, Via: Balimi, Dist:
Dhenkanal-759020(Gr-c)
2. Basanta Kumar Mallik aged about 56 years, S/o. Late
Muralidhar Mallik, working as Dy. Post Master, Dhenkanal
H.O. 759001, residing At: Karadabani, Po: Nihalprasad,
Via: Gandiapatna, Dist: Dhenkanal-759016 (Gr-c).
3. Laxmidhar Behera, aged about 58 years, working as
Sub-Postmaster, Kamakhyanagar-759018 residing At:
Rajakulakateni, Po: Malapura, Via: Kamakhyanagar, Dist:
Dhenkanal-759018(Gr-c).
4. Rabinarayan Mohapatra, aged about 56 years, S/o. Late
Kashinath Mohapatra, working as APM (Mails), Dhenkanal
H.O.-759001, residing At/Po: Bhapur, Dist: Dhenkanal-
759015 (Gr-c).
......Applicants
VERSUS
1. Union of India represented through its Director General
of Post, Ministry of Telecommunication, Dept. of Posts,
Dak Bhawan, Sansad Marg, New Delhi- 110001.
2 OA 260/00534 of 2019
2. Chief Postmaster General, Orissa Circle, Bhubaneswar,
Dist- Khurda, Odisha-751001.
3. The Superintendent of Post Office, Dhenkanal Division,
Dhenkanal-759001.
......Respondents
For the applicant : Mr. N.K.Sahoo, Counsel
For the respondents : Mr. J.K.Nayak, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The applicants submitted representation in 2018 (A/5 series) praying therein to revisit the benefit of TBOP and MACP by taking into consideration their services since the date when they were taken under Reserved Trained Pool (RTP)/training instead of their date of regularization by following the decision of Hon'ble High Court of A.P. and Telengana. The said representations were forwarded to Circle Office, Bhubaneswar and the decisions of the Circle Office were communicated to them vide letter dated 19.03.2019 (A/6) as under:
"Your representations on the above matter were forwarded to Circle Office Bhubaneswar on dated 31.10.2018. Circle office vide letter No.-ST/46-20/RTP/2018 dated 13/14.03.2019 has intimate that judgement of Hon'ble High Court of AO and Telengana vide interim order dated 10.03.2017 in WP MP No. 21403/2016 in WP No. 17400/2016 and WP MP No. 21429/2016 in WP No. 3 OA 260/00534 of 2019 17425/2016 is case specific only and cannot be extended to others."
2. As against the aforesaid decision, applicants preferred representation to the Chief Post Master General, Odisha Circle on 19.03.2019 (A/8) and alleging no action, they have filed this OA 11.08.2019, along with MA 617/2019 seeking condonation of delay in exercise of power conferred under Section 21 (3) of the Administrative Tribunals Act, 1985. Prayer of the applicants in the OA is as under:
"(i) To quash the order dt. 19.03.2019 under Annexure-A/6;
(ii) To direct the respondents to extend the similar benefit as extended to others in the matter of regularize their services from the date of their initial appointment i.e. rendered as RTP period for the purpose of granting the financial upgradation under TBOP & MACP Scheme in view of Hon'ble CAT, Hyderabad Bench dt. 15.04.2015 under Annexure-A/3;
(iii) To pass any other orders/orders as deem fit and proper."
3. Vide order dated 21.08.2019, notice was issued to the respondents giving them opportunity to file their reply, if any, to both OA as well as MA 617/2019.
4. Respondents filed their counter contesting the very maintainability of this OA on the ground of delay and laches so also on 4 OA 260/00534 of 2019 merit.
5. The Hon'ble Supreme Court in D.C.S. Negi v. Union of India & others (Civil Appeal No.7956 of 2011) decided on 7.3.2011, condemned entertaining of the Original Applications by the Tribunal in disregard of the limitation prescribed under Section 21 of the Administrative Tribunals Act 1985. In the said order, following observations were made:
"Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:
"21. Limitation - (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;
(b) in a case where an appeal or representation such as is mentioned in clause
(b) of subsection (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.
5 OA 260/00534 of 2019 (2) Notwithstanding anything contained in sub-section (1), 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 (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) 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 he had sufficient cause for not making the application within such period."
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 6 OA 260/00534 of 2019 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).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised, but we have not felt impressed. In our view, the Tribunal cannot abdicate its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant."
6. In view of the position of Rules and Law, cited above, this Tribunal considers it appropriate to deal at the first instance the point of limitation. Accordingly, heard Ld. Counsel for both sides in extenso on the point of limitation while hearing on merit of the matter.
7. Ld. Counsel for the applicant has submitted that the applicant after being selected, they joined as Postal Assistant under RTP Scheme in Dhenkanal Division in 1982 and were sent for training. Thereafter, one of the applicants was regularized in the said post on 22.09.1985 and the other three were regularized on 12.12.1986. The similarly situated employees filed TA No. 82/1986 before the Jabalpur Bench praying for their regularization. The said OA was disposed of on 16.12.1986 with direction to implement the RTP Scheme and the order of the Jabalpur 7 OA 260/00534 of 2019 was also upheld by the Hon'ble Apex Court vide SLP No. 11313/1987. Similar cases were filed by similarly situated employee before the CAT, Bombay Bench in OA No. 719-727 of 1996, which were disposed of 31.08.2010 in the light of the order passed by the Jabalpur Bench upheld by the Hon'ble Apex Court. Again, similarly situated persons approached before the Hyderabad Bench in OA No. 779 and 780 of 2013, which was disposed of on 15.04.2015 with direction for regularization of the persons kept under RTP and for counting the period for all purposes including grant of financial upgradation under TBOP and MACP Scheme (A/3). The matter was carried to Hon'ble High Court of AP and Telengana. In compliance of the interim order of the Hon'ble High Court of AP and Telengana, the Telengana Circle implemented the order granting the relief to those applicants. Thereafter, by filing representations dated 06.07.2018 (A/5 series), present applicants ventilated their grievance before Respondent No.3 for granting the benefit as has been granted to similarly situated employees of Telengana Circle. It is submitted that the representations of the applicants, instead of deciding on merit, were rejected on the ground that the order of the Hon'ble High Court of AP and Telengana is specific only and cannot be extended to others. It is submitted that the similarly situated employees 8 OA 260/00534 of 2019 of Madras Circle filed OA No. 1734/2018 before the CAT, Madras Bench, which was disposed of on 28.03.2019 (A/7) with direction to the respondents department to consider the claim of those applicants in accordance with law. Thereafter, the applicants filed another representation on 19.03.2019 (A/6) before respondent No.2 for reconsideration and since no consideration was given to such representation, they have approached before this Tribunal. It is contended that such non-extension of benefit of the decision based on which similarly employees were extended the relief regularizing their services w.e.f. the date they joined under RTP Scheme is violative of Article 14 of the Constitution of India. IN this regard, he has placed reliance on the decision of the Hon'ble Apex Court in the case of H.C.Puttaswamy & Ors. Vs. Karnataka High Curt, Bangalore, 1991 (1) ATJ 31, wherein in similar circumstances, the Hon'ble Apex Court direction was for retrospective regularization and grant of all benefits for the past services, as in the instant case. It is submitted that denial of TBOP and MACP benefits by counting their period of service when they joined as RTP amounts to depriving the applicants financial benefits, which comes within the purview of recurring cause of action. Thus, by placing reliance on the decision of the Hon'ble Apex Court in the case of UOI & Ors. VS 9 OA 260/00534 of 2019 Tarsem Singh, (2008) 2 SCC (L&S) 765, Ld. Counsel for the applicants submits that delay and laches should not stand on the way of granting the relief where the claim is for financial benefits. Hence, Ld. Counsel for the applicants has prayed for the relief by condoning the delay and laches, which is not intentional or deliberate.
8. Ld. Counsel for the respondents placing reliance on the fact and issues stated in the counter has strongly repudiated the stand of the applicants by stating that the applicants being the fence sitter and indolent cannot claim the benefit as was granted to the employees, who were vigilant and got the relief by virtue of the order of Courts. There was no such express direction in any of the orders of the CAT, Hyderabad and CAT, Chennai or order of the Hon'ble Courts of AP & Telengana to the respondents department to reopen the issues, which are set at rest long before.
9. Further, it is submitted that the applicants were recruited as RTP candidates in1982 in Dhenkanal Division. They were ordered to undergo training of 15 days from 01.12.1982. They were eligible for allowance of Rs.130 per month during the training period. They were absorbed and appointed in the year 1985/86, which they had accepted and the matter 10 OA 260/00534 of 2019 set at rest then and there. One Sri Bipin Bihari Dutt had filed OA No- 653/2004 before CAT, Patna Bench with prayer to count/regularize his services w.e.f 25.08.1983 and the consequential benefits including TBOP, which was dismissed on 04.03.2010. The said order was challenged by him before the Hon'ble High Court of Patna in Writ Petition No. 5265/2011 but the same was also dismissed on 28.02.2012. It is submitted that the order of the CAT, Hyderabad Bench relied on by the applicants has no application being per incurium for the same being without taking into consideration of the order of the CAT, Patna Bench in OA No. 653/2004 upheld by the Hon'ble High Court of Patna. Similarly, it is contended that the order of the CAT, Jabalpur Bench in T.A. No. 82/1986 has no application to the present case as in the said case was filed by the RTP employees seeking direction for their absorption and equal pay for equal work. The Tribunal disposed of the said O.A. on 16.12.1986, which was much after the absorption of the present applicants and, thus, it cannot be said that the applicants are similarly situated persons so as to get the relief. Ld. Counsel for the respondents besides placing reliance on other orders has specifically placed reliance on the order dtd. 16.08.2018 in O.A. No-946/2017 of the C.A.T. Chandigarh Bench in the case Gaje Singh vrs Union of India and others to 11 OA 260/00534 of 2019 substantiate that since the facts of this case is akin to the case of Gaje Singh (supra), the said OA having been dismissed on the point of limitation, this OA is also liable to be dismissed on the delay and laches.
10. Arguments were heard and documents, including the relied on decisions, were perused.
11. It is needless to state that the law of limitation is based on equitable principle that equity helps the diligent and not the indolent. It induces the claimants to be prompt in claiming the relief. In other case where the remedy only, not the right, is extinguished by limitation the Court will refuse to entertain stale claims on the ground of public policy vide Tilokchand Motichand & Ors vs H.B. Munshi & Anr., 1970 AIR 898.
12. This Tribunal is also reminded by the decision of the Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewarage Board and Others v. T.T. Murali Babu, 2014 (4) SCC 108, the Hon'ble Apex Court have clearly held that the delay may have impact on others' ripened rights and may unnecessarily drag others into litigation, and expressed opinion as under:
"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 12 OA 260/00534 of 2019 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 doesbring 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 13 OA 260/00534 of 2019 petition overboard at the very threshold." (emphasis added).
13. Close to this case, in the case of State of Uttaranchal and Another v. Shiv Charan Singh Bhandari and Others, 2013 (12) SCC 179, the Hon'ble Apex Court declined to exercise extraordinary jurisdiction for inordinate delay and held as under :
"In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: ...filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
14. In the case of Uttaranchal Forest Development Corpn. and another v. Jabar Singh and others (2007) 2 SCC 112, the Hon'ble Apex Court was pleased to observe as under:
"43. The termination order was made in the year 1995 and the writ petitions were admittedly filed in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches."
14 OA 260/00534 of 2019
15. In the case of Bhoop Singh v. Union of India, (1992) 3 SCC 136, it was held by the Hon'ble Apex Court as under:
"8. There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed."
16. In the case of P.K. Ramachandran Vs. State of Kerala & Anr., AIR 1998 SC 2276, the Hon'ble Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held that "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds."
17. In the case of State of Uttar Pradesh & Ors Versus Rajmati Singh, in Civil Appeal No. 9329 of 2022 (Arising out of SLP(C) No. 28128 15 OA 260/00534 of 2019 of 2017) disposed of on 07.12.2022, the Hon'ble Apex Court held as under:
"10. The question that falls for our consideration is whether the claim of the respondent was inordinately delayed, obsolete, stale, and barred by the principle of delay and laches and as a civil claim, whether it was barred by law of limitation?
11. To trace out the answer to the question formulated above, some facts need to be repeated. The respondent was apparently relieved on 04081973 to undergo the required BTC courses. She was allegedly not permitted to resume duties in the year 1974 after she had completed B.Ed. degree. She made several representations, one after the other, but did not deem it appropriate to approach any judicial or quasi judicial forum. It was only after the enactment of Right to Information Act, 2005, whereunder the State Information Commission came to be constituted, that the respondent moved before the said Commission to issue a directive to discover the fate of her representations. The Commission passed an Order on 05.03.2009 asking the appellant authorities to communicate the decision on the representations of the respondent and it was in this backdrop that the communication dated 04.06.2009 was issued by the District Basic Education Officer, which according to the respondent revived her pending claim.
12. In our considered view, the respondent like any vigilant citizen, especially given that she does not belong to economically or socially backward segments of the society, was expected to assert her rights before an appropriate forum within a reasonable time. Repeated representations neither give rise nor revive the cause of action, if it had already arisen in the past. Respondent's difficulties do not end there, given that her services were brought to an end when she was denied to resume her duties in the year 1974.
16 OA 260/00534 of 2019 She was, thus, required to seek a declaration of her continuity or have a writ of mandamus issued for her reinstatement. She did not do either. The Information Commission is not a forum to adjudicate service disputes. It was not a forum which either could declare the rights of the respondent or grant any service benefits. The respondent's move before the State Information Commission was thus an exercise in futility. It leaves no room for doubt that the respondent slept over her rights and allowed the grass to grow under her feet for a long duration of over 33 years.
13. We are of the considered opinion that the respondent waived her rights to raise objections in this regard and is deemed to have abandoned her employment.
14. The next question which falls for consideration is whether a deemed order of termination of services or abandonment of employment could be challenged by the respondent before the Tribunal in the year 2010? There can be no quarrel that such a challenge was hopelessly time barred under Section 5 of U.P. Public Services (Tribunal) Act, 1976.
15. The view taken by the Tribunal on 11.06.2010 was legally correct and tenable. The High Court nevertheless vide Order dated 02.07.2012 passed in the respondent's Writ Petition set aside the Tribunal's order. A perusal of the High Court's order reveals that neither the principles of delay and latches nor the law of limitation were considered, with reference to the facts of the case in hand. The High Court blissfully ignored the proposition of law and proceeded on the premise that there was no fault on the part of the respondent to file the claim petition before the Tribunal as "the impugned order was passed on 04.06.2009 xx xx xx". The High Court completely overlooked the fact that it was not an order passed on the representations made by the respondent but was a communication sent to her under compulsion due to the directions issued by the State Information Commission. The said communication in no 17 OA 260/00534 of 2019 way revived the cause of action in favour of the respondent."
18. Equally, it is well settled principle of law that a settled thing should not be unsettled after a long lapse of time. Further, it is well settled law that the persons, who shall be affected in case relief is granted to an applicant much be arraigned as party to the litigation. In the present case, as admitted by the applicants, they were regularized as RTP in the year 1985-86. They woke from the slumber by making representation on 06.07.2018 (i.e. after a lapse of more than three decades) praying inter alia for their regularization from the date of their enrollment as RTP for granting the financial upgradation under TBOP and MACP on the analogy that the RTP employee, who were not regularized approached the various Tribunals wherein orders were passed to regularize them retrospectively. But, no explanation is forthcoming for not being vigilant if at all they had acquired an indefeasible right to be regularized from the date when they were inducted as RTP starting from the day they were regularized in 1985-86. Therefore, allowing the benefit by condoning the delay would tantamount to unsettling a settled matter after about three decades. Further, direction of retrospective regularization at this stage would have much more adverse repercussion/affect and it may so lead 18 OA 260/00534 of 2019 to upsetting the promotional effects etc. affecting the rights of the others, who are not before this Tribunal. This Tribunal has gone into the decision relied on by the Ld. Counsel for the applicant in the case of Tarsem Singh (supra), which was a case where the applicant was entitled to certain financial benefits, which were not granted to him and, therefore, the Hon'ble Apex Court held that the matter being recurring cause of action, the delay has no application to the said case but this is a case where the applicant seeks to make them eligible by directing respondents to regularize them retrospectively and grant them the TBOP and MACP benefits. Thus, the decision in the case of Tarsem Singh is not at all applicable in the instant matter. Taking into consideration the entire aspect of this matter, this Tribunal is well convinced that this is a matter where no leniency can be shown to the applicant.
19. In the result, for the discussions made above, MA 617/2019 stands dismissed and as a consequence the OA fails.
(Rajnish Kumar Rai) (Pramod Kumar Das)
Member (Judl.) Member (Admn.)
RK/PS
19 OA 260/00534 of 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA 260/00534 of 2019
Reserved on: .11.2023
Pre-delivery draft order in the above case is placed below for kind perusal and concurrence.
Member (Admn.) Hon'ble Member (Judicial)