Central Administrative Tribunal - Allahabad
Lauhar vs General Manager, N E Rly on 8 March, 2018
Central Administrative Tribunal, Allahabad Bench,
Allahabad
Original Application No. 330/01458/2013
Reserved on 27.2.2018
Pronounced on 08.03.2018
Hon'ble Mr. Justice Dinesh Gupta, Member (J)
Lauhar adopted son of late Sri Triveni resident of Village
Hardi Tola, Semater Post Harpur, Budhut Tehsil,
Sahjanwa District- Gorakhpur.
......Applicant
By Advocate: Sri H.C. Singh
Versus
1. Union of India through its Principal Secretary,
Railway at New Delhi.
2. General Manager, North Eastern Railway, Gorkhpur
Division, Gorakhpur.
3. Chief Manager, Karkhana, Employee North Eastern
Railway, Gorakhpur.
4. Bhagu Ram son of Paras, Nephew of Deceased
Triveni.
5. Kailash son of Paras , Nephew of deceased Triveni.
(Both resident of village, Hardi Tola, Semrater, Post Office,
Harpur, Budhut Tehsil Sahjanwa, District- Gorakhpur.
.Respondents
By Advocate: Sri D. Tiwari proxy for Sri R.K.Rai
ORDER
By Hon'ble Mr. Justice Dinesh Gupta, Member(J) The applicant has preferred this O.A. under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
i) It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to issue the direction to the respondent No. 3 to decide the grievance of the applicant which is pending before him within stipulated period.2
ii) It is further prayed that this Hon'ble Court may be pleased to issue a direction to the respondent No. 3 to appoint the applicant under dying-in-harness rules at the place of his father late Sri Triveni according to academic qualification.
2. The brief facts emerging from the O.A. are that the applicant claims that he is adopted son of late Triveni who died on 30.10.2000 while working on the post of Mason in North Eastern Railway, Gorakhpur Division, Gorakhpur. It is submitted that registered deed was executed on 23.10.2000 during the life time of late Triveni in presence of two witnesses.
2.1 After the death of late Triveni, applicant moved an application dated 23.5.2001 (Annexure No. 4) before respondent No. 3 for compassionate appointment but the respondents have not considered the case of applicant for appointment under dying-in-harness rules. 2.2 Two nephews namely Bhujram and Kailash have also moved application for appointment under dying-in-harness rules in place of his uncle as well as for payment of arrears. As such three candidates, applicant (being adopted son) and two nephews namely Bhujram and Kailash have applied for appointment under dying-in harness rules in place of late Triveni.
2.3 Respondent No. 3 set up an enquiry and enquiry officer submitted its report dated 24.8.2001 (Annexure No.6) through which it is stated that applicant is the 3 legally adopted son of employee Triveni, as such he is entitled for appointment under dying-in-harness rules. 2.4 When after enquiry report, the respondents have not given appointment to the applicant under dying-in-harness rules, the applicant moved a detailed application on 5.7.2008 (Annexure No. 7) but the respondents have not taken any action in regarding to appointment of applicant under dying-in-harness rules.
2.5 Having no option left, applicant has filed this O.A. in the year 2013 with prayer to appoint him under dying-in- harness rules in place of his father late Sri Triveni according to academic qualification.
3. Notices were issued to the respondents who in turn filed the counter reply through which it is stated that applicant has given false declaration under para 6 and 7 of the O.A. Applicant has earlier filed O.A. No. 42/2004 for quashing of order dated 19.6.2003/21.6.2003 and further for direction to respondent No. 2 to make appointment to the applicant and the said O.A. was dismissed in default vide order dated 2.1.2008 (Annexure R-1). 3.1 It is further submitted that applicant has no locus to file the instant O.A. on the basis of adoption deed dated 23.10.2000 because the adoption deep dated 23.10.2000 does not fulfill the requirement of statutory rules i.e. Hindu Adoption and Maintenance Act, 1956. 3.2 It is further submitted that as per Section 10 of the aforesaid Act, it is clearly stated that no person shall be capable of being taken in adoption if he has completed the 4 age of 15 years. However, in adoption deed the age of applicant is not disclosed. Moreover, from the records, it is clear that he was more than 17 years old at the time of adoption. Therefore, non disclosure of the age of adopted child in the adoption deed, the same become invalid and not to be treated as valid document.
3.3 Under Section 3 of the aforesaid Act, adoption of a child if the father of the child is dead, consent of mother is mandatory. However, in the present adoption deed dated 23.10.2000, it has been clearly stated that the father of adopted son was dead at the time of adoption and there was no consent of mother of applicant. As such O.A. is liable to be dismissed.
3.4 Applicant submitted nomination form on 5.10.2000 (Annexure R-2) in which he has mentioned the applicant's name as nephew and in the nomination form, the date of birth of applicant is shown as 12.5.1983. The T.C. submitted by the applicant also shows that date of birth of applicant is 12.5.1983. As such adopted deed of late Triveni was prepared when the applicant was about 17 years and 5 months of age. The adoption deed was examined by the Railway Officer and it was found that adoption deed is not legal as such compassionate appointment cannot be given to the applicant. 3.5 It is further submitted that retiral dues was paid to the applicant treating him as nominated son.
4. Since the father of the applicant was expired on 30.10.2000 and applicant first time moved an application 5 for compassionate appointment on 23.5.2001 and lastly on 25.7.2008. But he has filed the present O.A. in the year 2013 after lapse of 12 years from first application and after a lapse of five years from last application. Application has also filed delay condonation application against which respondents have also filed objection stating that applicant has failed to explain day-to day delay. As such O.A. is liable to be dismissed to the ground of limitation also.
5. Applicant has filed Writ Petition No. 6658 of 2017 before Hon'ble High Court which was disposed of by high Court vide order dated 13.2.2017 directing the Tribunal to decide the O.A. No.1458 of 2013 expeditiously, preferably within a period of two months in accordance with law.
6. Accordingly, O.A. was heard on 27.2.2018 finally.
7. Heard the learned counsel for applicant Sri H.C. Singh and learned counsel for respondents Sri D. Tiwari for Sri R.K. Rai and perused the pleadings available on record.
8. Counsel for the applicant submitted that although OA 42/2004 was filed by the applicant, but the same was dismissed on 2.1.2008. Since the applicant was not aware of the said dismissal Order, he could not move any restoration application and in 2013, the applicant filed the instant OA for the relief of grant of compassionate appointment to him being son of deceased adopted father and the said OA 42/2004 was not dismissed on merit as it was only dismissed in default of the applicant's counsel. Hence, mere dismissal of the said OA that too not on merit 6 will not deprive the applicant from filing fresh OA for seeking compassionate appointment.
8.1 Counsel for the applicant further submitted that the applicant was legally adopted son of deceased adopted father Shri Triveni. Counsel also placed reliance upon the registered adopted deed dated 23.10.2000 and the respondents have made payment of retiral dues to the applicant of deceased Triveni. Hence, the respondents now cannot be permitted to challenge the said registered adoption deed and could not reject the applicant's case for grant of compassionate appointment.
9. Counsel for the respondents reiterated the facts as stated by him in the counter affidavit and further submitted that the applicant has concealed the fact of filing of OA 42/2004 in which the applicant claimed the same relief which he is claiming now in the instant OA. The said OA was dismissed in the absence of applicant's counsel, although respondents' counsel Shri K.P. Singh was present when the said OA was dismissed. 9.1 Counsel for respondents further submitted that after dismissal of the said OA although in default will constitute res judicata as provided under Order IX, Rule 9 of the Civil Procedure Code, 1908.
9.2 Counsel for the respondents also submitted that the present OA is also hopelessly barred by limitation, as cause of action for the applicant accrued after the death of his alleged adopted father in 2000. Though his earlier OA was rejected in 2008 while the applicant filed this OA in 7 2013, i.e., long after a lapse of more than five years. Even the Delay Condonation Application moved by the applicant, he has failed to mention any ground for condoning the delay.
9.3 Counsel further submitted that in view of the observations above, the applicant is not entitled to any relief as claimed by him in the instant OA and the same is liable to be dismissed.
10. From the pleadings and the relevant documents of both the parties, there are three issues arisen for adjudication in this case which are as follows:-
i. Whether second OA for the same relief is maintainable after the dismissal of previous OA though the same was dismissed in default of counsel for the applicant and not on merit but in the presence of counsel for the respondents?
ii. Whether the applicant can claim compassionate appointment on the basis of said adoption deed or such adoption is a valid adoption?
iii. Whether the applicant can claim the compassionate appointment after a lapse of considerable time and without explaining the delay in his Delay Condonation Application or the instant OA be dismissed on the ground of delay and latches alone?
11. So far as first issue is concerned, admittedly the applicant filed OA 42/2004 for the same relief as claimed by him in the instant OA, as the respondents in their counter affidavit stated that earlier OA 42/2004 was filed 8 by the applicant in which the applicant sought following reliefs:-
(a) That this Hon'ble Tribunal may kindly be pleased to quash/cancel the illegal directions/orders dated 19.06.2003/21.06.2003.
(b) That this Hon'ble Tribunal may be pleased to issue be directions/order to the opposite party no.2 to make an appointment of the applicant on compassionate ground in place of deceased Triveni mason grade I note No.8810 in Mill Wrights Shop N.E.R. Gorakhpur.
(c) That this Hon'ble Tribunal may kindly be pleased to direct the opposite party no.2 to pay all retirement benefit of deceased Triveni aforesaid to the applicant.
(d) any other relief."
The applicant has now preferred the present OA for the direction to the respondents to appoint him in dying-in- harness rule. The said relief was also found place in the earlier OA and the said OA was dismissed in default on 2.1.2008. The respondents have also filed a copy of the said Order dated 2.1.2008 which clearly shows that the said OA was dismissed in default of the applicant in the presence of counsel for the respondents. The applicant has also not denied this fact of filing of the said OA. However, he tried to convince the Court that the said order of dismissal was not in his knowledge and, therefore, he could not file any restoration application. Thus, it is clear 9 that the applicant filed the earlier OA 42/2004 for the same relief of grant of compassionate appointment on compassionate grounds also and the said OA was dismissed in default in the presence of respondents' counsel and no restoration application was ever moved by the applicant so far. Now the effect of the said dismissal of the earlier OA is that it has been provided in the Central Administrative Tribunals Act, 1985 that Tribunal will follow the procedure and powers of the Tribunal as provided under Section 22 sub section (3) which clearly provides that A Tribunal shall have, for the purposes of [discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely :-
(a) x x x x x x x x x x (b) x x x x x x x x x x (c) x x x x x x x x x x (d) x x x x x x x x x x (e) x x x x x x x x x x (f) x x x x x x x x x x
(g) dismissing a representation for default or deciding it ex- parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex- parte ; ...
The said Code of Civil procedure, 1908, provides the cases where the suit can be dismissed either in default in the absence of both the parties or in the absence of 10 applicant/plaintiff. The Order IX Rule 8 provides that where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed. The Order IX Rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the applicant/plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with suit.
12. From a bare perusal of the above two provisions of the Code of Civil Procedure, 1908, it is clear that suit can be dismissed in default for the absence of the applicant/plaintiff. The applicant/plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but he can apply for restoration of the said suit. In the present case, the admittedly the applicant filed OA 42/2004 which was dismissed in default of the applicant and in the presence of the respondents' counsel after exchange of the pleadings. No restoration application has been moved by the applicant till today. Thus, the applicant cannot be permitted to file a fresh OA for the same cause of action and for the same relief. In the case of D. Sangya Naik vs. Department of Telecom by its Head, reported 11 in ILR, 2005 KAR 1974, the Hon'ble Karnataka High Court, while dealing the case of dismissal of the Writ Petition in default and thereafter filed a fresh Writ Petition for the same cause of action and dealt with the Order IX Rules 8 and 9 of the Code of Civil Procedure, 1908, observed as follows:-
"9. These Rules provide for restoration of suits dismissed under Rule 8 for non-appearance. It also mandates that the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. It enables him to apply to the same Court which dismissed the suit for non- appearance for setting aside the order of disissal on his showing sufficient cause for his non- appearance when the suit was called on for hearing. The dismissal of the suit under Rule 8 does not operate as "res judicata". It only imposes a disability on the plaintiff. This Rule is based on sound public policy. The principle underlying this provision is that a litigant who comes to Court with a cause should agitate the matter with due diligence and take a decision on merits, so that a finality is reached. Otherwise, there would not be any finality, and the opposite party could be harassed endlessly, by allowing the proceedings to be dismissed for non-prosecution and re-agitate the matter time and again at his convenience and leisure. Then this judicial process would become an instrument of oppression rather than a means to resolve disputes in a civilized way. Therefore, it is a rule of estoppel, which finds a statutory recognition in order IX Rule 8 CPC, which prevants the party from filing a suit on the same cause of action, if the earlier suit is dismissed for non-appearance. These provisions would also equally apply to the writ proceedings. When the earlier writ petition was dismissed for non- appearance of the petitioner on the day the case was set down for hearing, the petitioner shall be precluded from bringing a fresh writ petition on the same cause of action challenging the very same order which was the subject matter of the said proceedings."
13. This Court is also of the considered view that by not filing restoration application for restoring the earlier OA which was dismissed in default of the applicant in the 12 presence of the respondents' counsel, the applicant is precluded from bringing a fresh OA on the same cause of action and for the same very relief. As such, the issue No.1 is answered accordingly.
14. Now so far as issue no.2 regarding validity of adoption deed is concerned, as per the alleged adoption deed, the applicant was taken in adoption for more than seven years ago from the date of execution of the adoption deed though neither date of actual adoption was mentioned in the said adoption deed nor was it mentioned whether at the time of execution of the said adoption deed, natural mother was alive or not nor was it mentioned that at the time of execution of the said adoption deed, actual wife of adoptee father was alive or not. Admittedly, this deed of adoption was executed on 23.10.2000 by the adopted father Triveni and his another brother who as per the contention of the applicant was a witness to the original adoption. Thus, this adoption deed cannot be looked into as it was not a valid adoption deed as it was not executed by the natural parents or adopted parents, as after 1977, it was made compulsory that no adoption can be considered by any Court of Law in the absence of registered adoption deed. According to the allegation of the applicant, he was adopted by his adopted father Triveni and given by his natural father but this deed was executed at the time when the natural father of the applicant was no more. Therefore, alleged adoption of applicant cannot be said to be evidenced by legal adoption deed. So far as grant 13 of retiral dues to the applicant is concerned, since the name of the applicant was found placed in the nomination form submitted by the deceased Govt. employee, the respondents have paid the retiral dues to the applicant but so far as claim of the applicant for grant of compassionate appointment on the basis of being adopted son of the deceased Govt. employee is concerned, in the absence of any valid adoption deed, the applicant cannot be said to be the adopted son of the deceased Govt. employee, namely, Shri Triveni and as such he cannot claim compassionate appointment being adopted son. There is further question raised by the respondents' counsel regarding age of the applicant at the time of alleged registration of adoption deed. As per the documents furnished by the respondents, the applicant was more than 17 years of age at the time of execution of alleged adoption deed and according to the provision of Section 10(iv) of the Hindu Adoptions and Maintenance Act, 1956, no person above the age of 15 years can be given in adoption. Thus, in view of the above, the alleged adoption deed is not a valid adoption deed and on the basis of the said adoption deed, no presumption can be drawn that adoption of the applicant was valid and thus, the applicant cannot be considered for compassionate appointment on the basis of said adoption deed. This issue is also accordingly answered.
15. So far as the third issue is concerned, the cause of action for the applicant accrued in 2000 when the applicant's alleged adopted father expired and law of 14 limitation provides that application should be made within a year or at the most, one and a half years from the date of accruing of cause of action. It is also not disputed that law of limitation starts from the date when the applicant's claim for grant of compassionate appointment was rejected. In this regard, it is stated that once law of limitation starts running it cannot be stopped. In this case there is full of delay and latches, as it is observed while deciding the issue no.2 above that the applicant moved OA earlier in 2004 which was dismissed in default in 2008. Even if it is presumed that the said Order of 2008 vide which the said OA was dismissed was not in the knowledge of the applicant, the applicant has failed to explain the reasons for not filing the fresh OA within one year from the date of alleged dismissal in the delay condonation application, not even a single whisper or there is no ground taken by the applicant for filing the delay condonation application. Thus, the applicant has failed to demonstrate any reason or sufficient ground to condone the delay in filing the instant OA. The law of limitation in this regard is very clear. The Administrative Tribunals Act, 1985, being a special Act, specifically having a limitation clause. Section 21 of the said Act reads as follows:-
"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, 15 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 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 (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."
16. The Apex Court 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 as follows:-
"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 16 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)".
17. The Apex Court in the case of S.S. Rathore v. State of Madhya Pradesh, (1989) 4 SCC 582, held thus:-
"We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. It is appropriate to notice the provision regarding limitation under s. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub- section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article' 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date 17 when the appeal was-filed or representation was made, the right to sue shall first accrue."
In view of the above discussion, this issue is also answered according.
18. In the result, for the foregoing reasons, the instant OA is barred by limitation as well as devoid of merit on the basis of decisions arrived at on the aforesaid three issues. There shall be no order as to costs.
Justice Dinesh Gupta) Member (J) HLS/ravi/-