Allahabad High Court
Vachaspati Dixit vs State Of U.P. Thru Prin.Secy.Tax & ... on 21 March, 2018
Author: Devendra Kumar Arora
Bench: Devendra Kumar Arora
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- SERVICE BENCH No. - 1956 of 2015 Petitioner :- Vachaspati Dixit Respondent :- State Of U.P. Thru Prin.Secy.Tax & Registration Deptt.& Anr. Counsel for Petitioner :- Shailendra Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Virendra Kumar-II, J.)
1. Heard Mr. Shailendra Kumar Singh, learned counsel for petitioner and Mr. Vivek Shukla, learned Additional Chief Standing Counsel for State.
2. The petitioner has instituted this writ petition assailing judgment and order dated 16.11.2015 passed by State Public Services Tribunal (hereinafter referred to as 'Tribunal') and punishment order dated 7.9.2007 passed by the competent authority. He has claimed relief for all consequential service benefits of pay, arrears of pay and to revise the pension. Vide impugned judgment and order dated 16.11.2015, Tribunal has dismissed Claim Petition No. 2446 of 2010 (Vachaspati Dixit Vs. State of U.P. and another) as time barred.
3. It is pleaded in the grounds of writ petition that the petitioner has attained the age of superannuation on 31.12.2013 from the post of District Entertainment Tax Officer at Gorakhpur. He was in the pay-scale of Rs. 20820 and Grade Pay of Rs. 4800 and his post was Class-II Officer. It is contended that The Tribunal has rejected claim petition illegally on the ground of limitation observing that the claim petition has been filed after lapse of five years. The Tribunal has applied wrong provisions of U.P. Public Services Tribunal Act, 1976 (hereinafter referred to as Tribunal Act, 1976).
4. It is further pleaded that petitioner's claim petition no. 2446 of 2010 was entertained by Tribunal and notices were issued to opposite parties, who filed written statement against the claim petition. The petitioner had filed rejoinder affidavit specifically denying the averments made in the written statement. Learned Tribunal after hearing both the parties granted interim order on 9.6.2011 and operation of the punishment order dated 7.9.2007 was stayed till further orders.
5. It is further contended that the petitioner preferred an appeal on 9.9.2008 against punishment order dated 7.9.2007 and a legal notice was sent on 16.11.2010, but the opposite parties have not replied to this legal notice. The petitioner also filed an application for explaining delay in preferring the appeal and requested the appellate authority for deciding the appeal on merits, but appeal was not decided by opposite parties for a very long time. The petitioner had also sent a legal notice on 15.11.2010, but appeal was not decided, even after expiry of notice of period of one month.
6. The petitioner has relied upon the provisions of Section 5 sub-Section 1 of the Tribunal Act, 1976 and contended that these provisions provide that in computing the period of limitation, the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition in accordance with Rules or orders regulating his conditions of service and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded. It makes clear that the appeal of the petitioner was pending undecided since long and the same was not decided even after sending the legal notice in view of Section 4 of sub-Section 6 and after lapse of more than five years claim petition was rejected on the ground of limitation in an unjustified manner by misinterpreting the judgment of this Court in the case of State of U.P. Vs. Vivekanand Singh and others vide order dated 29.5.2015 passed in W.P. No. 444 (SB) of 2015.
7. It is also pleaded that the Tribunal has rejected the claim petition merely on the ground that the period of limitation for filing claim petition, after lapse of six months, has expired on 8.3.2009 and the said period was counted with effect from the date of filing of appeal in a most arbitrary and illegal manner. It is further contended by learned counsel for petitioner that appellate authority, who has to decide the appeal in discharging its statutory legal obligations, cannot defeat the right of the claimant to vindicate his rights by approaching the Tribunal nor can be frustrated.
8. It is further contended that the Tribunal erred in rejecting the claim petition on the ground of limitation. Therefore, the judgment and order dated 16.11.2015 is illegal and against the provisions of Tribunal Act, 1976, hence the same is liable to the set aside. The claim petition is liable to be decided on merits.
9. On the above mentioned grounds, following reliefs have been sought in this writ petition:-
"(i) to issue a writ order or direction in the nature of certiorari quashing the impugned judgment and order dated 16.11.2015 contained in Annexure No. 1 to this writ petition along with punishment order dated 7.9.2007 contained in Annexure No. 1 to the annexed claim petition with all consequential services benefits of pay, arrears of pay and to revise the pension and to pay its arrears etc. in the interest of justice with cost.
(ii) to issue a writ order or direction in the nature of mandamus commanding the opposite parties to pay the arrears of pay and to revise the pension and to pay its arrears with all consequential service benefit.
(iii) to issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case in favour of the petitioner."
10. We have also perused the counter affidavit filed on behalf of the respondents. The respondents have pleaded in counter affidavit that a surprise inspection of one Cinema Hall, namely, Shiv Palace situated at Phoolpur, Azamgarh was carried out by Deputy Commissioner, Entertainment Tax on 20.5.2005 at 1:50 p.m., while the petitioner was posted as District Entertainment Tax Officer, Azamgarh. The Deputy Commissioner found several irregularities as to tax evasion. The departmental proceedings were initiated against the petitioner vide order dated 11.7.2005 and the then Deputy Commissioner, Entertainment Tax, Kanpur Nagar was appointed inquiry officer, who submitted his report on 24.4.2006.
11. A show cause notice dated 10.7.2006 annexing therewith a copy of inquiry report issued against the petitioner according to Rule 9 (4) of the Uttar Pradesh Government Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred to as Rule, 1999). The petitioner did not submit any representation or explanation within specified period. Subsequently after lapse of considerable long period of time, after giving anxious and thorough consideration to the aforesaid inquiry report, the findings of inquiry officer and all the material available on record, the departmental proceedings were concluded and the petitioner was awarded major penalty of 'withholding two increments' with cumulative effect and the minor penalty of 'censure' vide punishment order dated 7.9.2007 passed by the competent authority.
12. The respondents have further mentioned that according to Rule 11 of Rule 1999, appeal against order passed by the disciplinary authority under these rules except the order passed by the Governor, the appeal shall be preferred to the appellate authority within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily. The petitioner preferred an appeal before the appellate authority belatedly on 9.9.2008. Subsequently he filed claim petition no. 2446 of 2010 before the Tribunal.
13. The respondents have relied upon the proviso appended to Section 4 (1)(6) of Tribunal Act, 1976, which provides that "if no final order is made by the appellate authority within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all remedies available to him". It is further mentioned that the petitioner has sent legal notice on 15.11.2010 after lapse of about more than two years and two months after filing of the aforesaid appeal, which is also highly time barred.
14. The respondents have also relied upon the decision in the case of S.S. Rathore Vs. State of Madhya Pradesh reported in (1989) 4 SCC 582, which was followed by this Court in Writ Petition No. 444 (SB) of 2015 (State of U.P. and another Vs. Vivekanand Singh and another) and submitted that Tribunal has dismissed claim petition no. 2446 of 2010 vide its judgment and order dated 16.11.2015, finding it as absolutely time barred. The Tribunal has considered legal position as to period of limitation vis-a-vis Section 5 (1)(b)(i) of Tribunal Act, 1976, which prescribes the period of limitation for filing claim petition as one year.
15. The respondents have relied upon paragraph-22 of the case S.S. Rathore (supra), which has been quoted in paragraph-6 of counter affidavit and it is submitted that if appeal has been preferred or representation has been made by the employee, and it is disposed of, cause of action shall first accrued and where such order is not made on the expiry of six months from the date, when the appeal was filed or representation was made, the right to sue shall first accrue. Therefore, the petitioner was bound to institute claim petition after preferring the appeal and after expiry of six months from the date, when the appeal was filed by him, if it was not finally decided by appellate authority.
16. The respondents have further pleaded that it is settled principle of law that 'the law helps those who are vigilant and not those who sleep over their rights' as per the maxim "vigilantibus, et non dormientinus, jura sub veniunt". The petitioner has never been alert and has taken available recourse after due delay at every step/stage.
17. It is contended that the impugned judgment and order dated 16.11.2015 is absolutely just and proper and it is in accordance with the settled principle of law, as such, is liable to be upheld by this Court. The petitioner is not entitled to get any relief and writ petition deserves to be dismissed with costs being devoid of merits.
18. The petitioner has filed rejoinder affidavit reiterating his earlier contentions.
19. We have perused the impugned judgment and order dated 16.11.2015 and relevant provisions of Tribunal Act, 1976.
20. Learned counsel for petitioner has relied upon the several decisions of this Court, which are being reproduced as under:-
In the case of Samarjeet Singh Vs. State of U.P. and others reported in [2006 (24) LCD 122] this Court in paragraphs-17 to 24 has held as under:-
"17. Sub-section (5) and proviso to Sub-section (6) of Section 4 of the Act do not control the provisions of Section 5(1)(b) (i) and (ii) of the Act. Sub-clause (b)(i) and (ii) of Section 5(1) of the Act says that the provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under Section 4 of the Act as if a reference were a suit filed in civil court so, however, that : (i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year and (ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal revision or petition, as the case may be shall be excluded.
18. The aforesaid provision provides that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 of the Act may be made within the period prescribed by that Act, or within one year next after the commencement of the U.P. Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier. The aforesaid provisions make it clear that while computing the period of limitation, the period of limitation starts from the date on which the public servant makes a representation or prefers an appeal, revision or any other petition and comes to an end when he acquires knowledge of the final order passed. All such period thus has to be excluded while computing limitation. In case final order is passed after one year or two years or so on and so forth, the limitation would be counted from the date of passing of the original order and by excluding the entire period commencing from the date of making the appeal or representation, if provided under rules, and the date when the final orders passed on such appeal or representation come within his knowledge.
19. In the instant case, the Tribunal was swayed by the provisions of Sub-section (5) of Section 4 and proviso to Sub-section (6) of Section 4 where the right to approach the Tribunal has been given after availing all the remedies available to a public servant under the relevant service rules and the circumstances and the procedure when a public servant can approach the Tribunal, during the pendency of the appeal or revision.
20. In the absence of a final order having been passed by the appellate authority it cannot be said that the claim petition would be barred by limitation if the claimant does not avail the liberty given in the provision aforesaid. If statutory appeals or representations are kept pending for years together and no order is passed within six months from the date on which such appeal was preferred or representation was made, the Tribunal ought not to reject the claim petition, on the ground that the public servant should have given a written notice by registered post, requiring such competent authority to pass the order within 30 days, and thus has not filed the claim petition within the limitation prescribed.
21. In a case wherein the appeal or revision remains unattended for any period beyond six months or one year, the only requirement could be that such a claimant gives the required notice as given in proviso to Sub-section (6) of Section 4 and thereafter to approach the Tribunal whether thereafter, the appeal or revision is decided or not, but this requirement of giving notice in a matter which has been kept pending for years together by the appellate authority, if is not complied with by the complainant, the Tribunal may not dismiss the claim petition summarily but may give an opportunity to the claimant to give a notice as required within a given time and defer the hearing for such period or the Tribunal, or as per the facts of the case, may entertain the petition even without any such notice being given by the public servant as the rule of exhaustion of departmental remedies is itself discretionary in terms of subsection (5) of Section 4, wherein it has been said that 'ordinarily' the Tribunal would not entertain the petition, unless departmental remedy stands exhausted.
22. Failure on the part of the appellate authority or the authority who is to decide the representation, in discharging their statutory legal obligations cannot defeat the right of a claimant to vindicate his rights by approaching the Tribunal nor can be frustrated.
23. In this case plea has been taken by the State that no such appeal was ever filed before the District Magistrate (appellate authority). This submission is absolutely vague and in fact there is no denial of the averment of the petitioner in the petition that he had filed the appeal within time which was registered on 2.7.1987. Before us the petitioner produced photostat copy of the receipt showing that the appeal was filed. We have not taken it on the record, as this matter requires to be considered by the Tribunal.
24. In view of the relevant provisions of the Act, we hold that the Tribunal misguided itself in rejecting the claim petition at the admission stage, treating it to be barred by limitation and, therefore, the matter is required to be reconsidered by the Tribunal."
In the case of Lalji Tiwari Vs. U.P. Public Services Tribunal, Lucknow and others reported in [2014 (32) LCD 1357] has held in paragraphs-8 and 9 as under:-
"8. The period of limitation under section 5 of the Act shall be reckoned from the date when the statutory appeal, representation, revision or petition is filed against the order of punishment. However, the period spent in deciding the representation, appeal, revision or petition shall be excluded. Apart from it, the date of communication of order to the government servant passed on his representation, appeal, revision or petition shall also be important for calculating the period of limitation.
9. The Tribunal after taking note of endorsement made by the office dismissed the claim petition preferred by the petitioner as barred by limitation without going into factual matrix of the case. The Tribunal was under obligation to consider the grounds of the petitioner in regard to limitation and must have assigned the reason for not accepting the grounds. Moreover, the Tribunal must have evaluated the order of appellate authority in the light of plea raised in the appeal filed by the petitioner for condoning the delay."
This Court in the case of Radhey Shyam Vs. U.P. State Public Services Tribunal, Indira Bhawan, reported in [2011 (29) LCD 1485] has held in paragraphs-10 and 11 as under:-
"10. Thus, it has been provided in the proviso to Section 4 of U.P. Public Service Tribunal Act that a Government servant may prefer a claim petition during the pendency of appeal or revision, but the revisional power may be invoked by filing revision against the appellate order passed by the appellate authority. In case such revision or representation is not decided within a period of one year from the date of its filing, then the claimant, by a written notice, may require the authority competent to pass the order and in case the order is not passed within one month of service of notice, the claimant may file a claim petition after expiry of period of one month.
11. Since the petitioner has preferred a claim petition within one year after service of notice and no decision was taken within one month, he was entitled to prefer claim petition on or before 5.8.2010. In the present case, the claim petition was filed by the petitioner on 29.12.2009, that was well within statutory period provided by Section 4 read with section 5 of the Act. The tribunal has been failed to exercise power vested in it. Since, the claim petition was filed within time, the tribunal should have decided the controversy on merit instead of dismissing it as time barred."
This Court in the case of Amar Nath Singh Vs. State of U.P. and others reported in [2012 (30) LCD 702] has held in paragraph-5 as under:-
"5. A perusal of the impugned order passed by the Tribunal reveals that against the punishment order, the petitioner preferred an appeal and after dismissal of appeal, the revision was also filed which was decided by the judgment and order dated 2.7.1990. A copy of the order passed by the revisional authority is contained to the writ petition as Annexure No.4. A perusal of the order of revsional authority shows that it was decided on merit by the revisional authority. The Tribunal has dismissed claim petition as time barred on the ground that the revision was preferred after statutory period of limitation only on 22.2.1988. Hence the claim petition shall not be maintainable. The ground on which, Tribunal dismissed the claim petition being barred by limitation, seems to be not sustainable. The limitation with regard to filing of claim petition should be considered taking into account the last order passed by the statutory authority. Since the revision was entertained by the revisional authority and it was decided on merit by the order dated 2.7.1990, the Tribunal was not correct to dismiss the claim petition by the impugned order dated 28.9.1992 as time barred while calculating limitation for filing claim petition before the Tribunal. The Tribunal could have taken note of the date when last order was passed by the statutory authority is on merit while discharging its obligation. It was not open for the Tribunal to interfere with the jurisdiction exercised by the revisional authority on the ground of limitation. It was only for the revisional authority to record finding as to whether the revision is time barred or not and whether it is maintainable or not. In case revision has been entertained and decided on merit, then no finding could have been recorded by the Tribunal with regard to delay in filing of revision before the statutory revisional authority."
21. Learned counsel for petitioner has also relied upon decision of this Court in the case of Mahendra Pratap Rai Vs. State of U.P. and others reported in [1986 (4) LCD 209]. In paragraph-2, this Court has held as under:-
"2. The tribunal has observed that the order for recovery of the amount was passed on 27-9-1974 against which the petitioner had preferred an appeal on 9-7-1975. The order of termination was passed on 30-10-1976 against which the petitioner had preferred an appeal on 17-11-1976. Thereafter the Tribunal went on to observe that both the appeals were filed much beyond time. I think this could not be said at least for the appeal which was filed against the order of termination. It would be evident from the order of Tribunal itself that the appeal against the order of termination was filed on 17-11-1976 whereas the order of termination was passed on October 30, 1976 i.e. to say, only after eighteen days. The Tribunal has further found that since the appeals were filed beyond time, it was immaterial whether these appeals had been disposed of or not. The view taken by the Tribunal is erroneous. Once the appeals have been filed, they have to be disposed of by the authorities competent to decide those appeals. If the appeals are time-barred, it is only the competent authority who can dismiss them on that ground. The appeals in any case had to be disposed of. The petitioner would be entitled to have the limitation from the date of disposal of appeals preferred by him. In case the appeals filed by the petitioner are not disposed of for such a long time, the petitioner would be justified in approaching the Tribunal instead of waiting any more for decision by the appellate authority. In this view of the matter, the writ petition is allowed and the order dated 25-9-1985 passed by the Tribunal is set aside and the claim petition is remanded to the Tribunal for deciding it on merits."
22. We have perused provision of Section 4 of Tribunal Act, 1976, which reads as under:-
"4. Reference of claim to Tribunal.-
(1) ....................
(2) ......................
(3) ......................
(4) Where a reference has been admitted by the Tribunal under sub-section (3), every proceeding under the relevant service rules or regulation or any contract to redressal of grievances in relation to the subject-matter of such reference pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract.
5. .......................
6. .........................
Provided that where no final order is made by the State Government, authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
5. Powers and procedure of the Tribunal.-
(1) (a) .................................
(b) The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under Section 4 as if a reference where a suit filed in civil court so, however, that-
(i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year;
(ii) ......................
23. On perusal of these provisions, it is crystal clear that reference/claim petition under Section 4 of Tribunal Act, 1976 is considered in nature of civil suit and Section 5 of Limitation Act 1963 is not applicable to the such reference or civil suit. Clause (1) (b) (i) of Section 5 of Tribunal Act, 1976 provides period of limitation for one year to institute reference/claim petition before the Tribunal. A conjoint reading of provisions of Section 5 (1)(b)(ii) and Section 4 clause (6) proviso, it reveal that if any public servant prefers an appeal and in such appeal, no final order is made, by the State Government, authority, or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant, within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
24. Section 4 of the Tribunal Act, 1976 provides under clause (1) that subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance.
25. Section 4 clause (5) of the said Act provides that the Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievance.
26. Clause (6) provides that for the purpose of sub-Section 5 a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance.
27. Learned counsel for petitioner has also relied upon the provisions of clause 4 of Section 4 of Tribunal Act, 1976 and put forth argument that appeal was preferred on 9.9.2008 by the petitioner is still pending and appellate authority has not passed final order in this appeal. Therefore, claim petition instituted by the petitioner cannot be termed as time barred. Learned counsel for petitioner has also pointed out that petitioner has sent legal notice on 16.11.2010 by speed post and requested for deciding the appeal on merits.
28. The argument of learned counsel for petitioner is misconceived because it is provided in sub-clause 4 of Section 4 as follows:-
"Where a reference has been admitted by the Tribunal under sub-section (3), every proceeding under the relevant service rules or regulation or any contract to redressal of grievances in relation to the subject-matter of such reference pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract. "
29. Section 4 sub-clause 4 basically provides that if a reference or claim petition has been admitted by the Tribunal sub-section (3), then every proceeding under the relevant service rules or regulation or contract to redressal of grievance in relation to subject matter of such reference pending immediately before such admission shall abate and save as otherwise directed by Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract.
30. It is also relevant to peruse provisions of Rule 11 of Rules, 1999, which reads as under:-
"11. Appeal.-(1) Except the orders passed under these rules by the Governor, the Government Servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority.
(2) The appeal shall be addressed and submitted to the Appellate Authority. A Government Servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant.
(3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed.
(4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily."
31. Since the petitioner has admitted that he preferred appeal on 9.9.2008 challenging his punishment order dated 7.9.2007, therefore no other proceeding/representation was pending on behalf of the petitioner, while claim petition no. 2446 of 2010 was entertained by Tribunal. It is relevant to mention here that clause (1)(4) of rule 11 of Rules, 1999 provides that the appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily.
32. The punishment order dated 7.9.2007 was passed by the disciplinary authority after giving show cause notice to the petitioner. These departmental proceedings were initiated against him on 11.7.2005 and an inquiry report dated 24.4.2006 was provided to him vide show cause notice/ letter no. 2205 dated 10.7.2006. The petitioner did not respond to this show cause notice, therefore punishment order was passed on 7.9.2007.
33. Admittedly the petitioner has preferred an appeal on 9.9.2008 assailing his punishment order dated 7.9.2007 with delay, because it was not preferred within 90 days after knowledge of punishment order dated 7.9.2007. In the grounds of writ petition also, the petitioner has not disclosed this fact that when he came to know about punishment order dated 7.9.2007, he has only contended that he preferred appeal explaining the delay in preferring appeal on 9.9.2008. The appellate authority is competent to consider the circumstances in which the appeal was preferred by the petitioner with delay.
34. According to provisions of Section 11 (4) of Rules, 1999, the period of 90 days for preferring the appeal has to be counted from the date of communication of impugned order and if appeal preferred after said period then it shall be dismissed summarily. There is no provision for condonation of delay in preferring appeal under Section 11 of the said Rules. The petitioner has suppressed this fact in the grounds of writ petition that when impugned order of punishment dated 7.9.2007 was communicated to him. This fact adversely affects the petitioner in this regard.
35. Learned Tribunal has relied upon the decision passed by Division Bench of this Court in the case of Vivekanand Singh and another Vs. State of U.P. and another in W.P. No. 444 (SB) of 2015 decided on 29.5.2015 and relied upon the provisions of Section 5 (1)(b)(i) of Tribunal Act, 1976. Learned Tribunal has recorded finding relying upon exposition of law, which is quoted in paragraph-6 of the judgment by observing that the petitioner should have filed claim petition on expiry of six month from the date of filing of appeal on 9.9.2008. The limitation period for filing claim petition, after lapse of six months, has expired on 8.3.2009. The petitioner has filed claim petition on 20.12.2010, which is highly time barred.
36. We have perused case law which is also relied upon by learned counsel for petitioner, in the case of Vivekanand Singh (supra). The Division Bench of this Court has considered the provisions of Section 4 and Section 5 of Tribunal Act 1976 and observed that as per Section 5 (b) of Tribunal Act, 1976, the provisions of Limitation Act, 1963 apply mutatis mutandis to a reference under Section 4 as if, a reference were a suit filed in the Civil Court.
On page-4 Division Bench of this Court has observed regarding the facts and circumstances of claim petition of this decision and the contention of petitioner State that claim petition was time barred. Division Bench has also considered decision of S.S. Rathore (supra) and quoted paragraph-14 to 23 of this case law which has been decided by Seven Judges Bench of Honble Supreme Court. On page-8 and 9, Division Bench has examined the contentions of both the parties and considered the question of limitation regarding institution of claim petition.
On page-9 of the judgment, it has been observed as under:-
"On the date of filing of the claim petition, the only ground for treating it within limitation was the pendency of the alleged review application dated 6.2.2012. Once the averments made in para 4.12 were categorically and specifically denied by the State and its authorities in para 14 of their written statement based on their records, the presumption regarding such an application having been sent stood rebutted and the burden shifted back to the claimant to prove that he had, in fact, submitted such a review application by registered post. Reference in this regard may be made to the pronouncement of the Supreme Court in the case reported in 2008(17) SCC 321, V.N. Bharat v. Delhi Development Authority & anr., wherein their Lordships held as under :
"In our view, the Commission also erred in placing the onus of proof of service of the demand notice on the appellant, since except for denial there is nothing else that the appellant could have produced to prove a negative fact. As we have indicated hereinbefore, the presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DDA the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered to and had been received by the appellant. It is on a mistaken understanding of the provisions of Section 114(f) of the Evidence Act that the Commission came to the erroneous conclusion that the allegation of unfair trade practice on the part of the respondent authority had not been proved. In our view, from the material on record it is quite clear that the respondent authority was unable to prove that service of the demand notice for the fifth and final installment had been effected on the appellant."
No attempt was made by him to prove the aforesaid material fact. He did not move any application for summoning of the relevant documents including the Dak register, if any, from the office of the concerned opposite party or to examine any witness to prove his assertion. He did not even offer any explanation as to why he had not filed the proof of such an application having been sent by registered post. Even if he had filed the registry receipt, once its receipt was denied, the onus shifted on the claimant to prove his assertions."
On page-10 it is observed that:
The submission of the review application on 6.2.2012 was not proved by the claimant. The original act of submission of the review application dated 6.2.2012 itself having not been proved, the subsequent legal notice dated 13.6.2013 is rendered inconsequential and meaningless.
On page-10 and 11, the Division Bench has also observed that:
Once the averments made in para 4.12 of the claim petition were not proved the point of limitation was to be calculated from the date of original order dated 28.12.2011 and, the benefit of sub-Section 5(1)(b)(ii) read with Section 4(5) and (6) as also paragraph 20 of the judgment of the Supreme Court in S.S. Rathore's case (supra) was not available to the claimant.
The original order having been passed on 28.12.2012, no statutory remedy having been preferred against it,the period of limitation for filing a claim petition under the Act, if at all maintainable in view of section 4 (5) of the Act, was one year therefore, it was barred by limitation when it was filed in July, 2013.
The ratio of paragraph 20 of the judgment in S.S.Rathore is applicable only upon a statutory remedy having been followed/availed, not otherwise. This is evident from the use of the following words "though the remedy has been followed". In paragraph 22 of the said judgment also the Supreme Court has used the words "on the expiry of six months from the date when the appeal was filed or representation was made the right to sue shall first accrue".
The point of limitation goes to the root of the matter. It involves a jurisdictional issue. The Limitation Act has been made applicable to the Tribunal, as it was applicable to a suit, thus, Section 5 thereof has no application to a reference filed under Section 4 of the Act. If a claim petition is barred by limitation, then irrespective of its merits, the Tribunal has no other option but to decline to entertain it. It does not have the power to condone the delay.
In view of this, the entire edifice of the arguments advanced by Sri Kalia, based on pendency of the review application dated 6.2.2012 falls to the ground, as it has no foundation to sustain the same
37. On perusal of above-mentioned observations of the Division Bench in this case law reveal that since pending review application dated 6.2.2012 was not proved by the claimant-opposite parties, therefore, it was found by the Division Bench that paragraph 20 of case law of S.S. Rathore (supra) was not applicable to the facts and circumstances of claim petition by observing on page-17 that claim petition no 922 of 2013 was dismissed and writ petition instituted by State Government was allowed. In the instant case, Tribunal has relied upon aforesaid ratio in its correct perspective. On page-17 of judgment of Vivekanand Singh (supra), this Court has held as under:-
"But for the averments made in para 4.12 of the claim petition, it would have been dismissed at the very threshold as being time barred. The claimant misled the Tribunal in entertaining his claim petition on the basis of incorrect averrments made by him in para 4.12 thereof. It was clearly an abuse of the process of the court. The claimant can not be permitted to draw mileage out of his illegal act. If this is permitted it would render the provision of limitation as also the object behind it meaningless and will provide a flip to unscrupulous elements to abuse the process of the law."
38. We have also perused exposition of law of S.S. Rathore (supra) Hon'ble Supreme Court has held in paragraphs-14 to 23 as under:-
14. The distinction adopted in Mohammad Nooh's case between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the lay by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31.8.1966.
15. In several State the Conduct Rules for Government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court. Section 20(1) of the Administrative Tribunals Act, 1985 provides :
20. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
16. The Rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some Rules provide even a second appeal or a revision. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act. Administrative Tribunals have been set up for Government servants of the center and several States have already set up such Tribunals under the Act for the employees of the respective States. The law is soon going to get crystallised on the line laid down under Section 20 of the Administrative Tribunals Act.
17. In this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the Limitation Act, great hardship is bound to result. On one side, the claim would not be maintainable if laid before exhaustion of the (remedies; on the other,) if the departmental remedy though availed is not finalised within the period of limitation, the cause of action would no more be justifiable having become barred by limitation. Redressal of grievances in the hands of the departmental authorities take an unduly long time. That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance. This approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as expeditiously as possible Ordinarily, a period of three to six months should be the outer limit. That would discipline the system and keep the public servant away from a protracted period of litigation.
18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.
19. The question for consideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of Sub-sections (2) and (3) of Section 20 of the Administrative Tribunals Act. There, it has been laid down :
20.(2) For the purposes of Sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-
(a) if a final order has been made by the Government or other authority or Officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance : or
(b) Where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of Sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.
20. 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.
21. It is appropriate to notice the provision regarding limitation under Section 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 evocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.
22. 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 when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation.
23. In view of what we have said above, Goel's case must be taken to have not been correctly decided.
39. For decision of this writ petition, paragraph-22 of S.S. Rathore (supra) is relevant, which has been relied upon by the Tribunal, in correct perspective.
40. On the point of limitation, Hon'ble Apex Court in the case of Karnataka Power Corpn. Ltd. v. K. Thangappan, reported in (2006) 4 SCC 322 , has held in para 6,7 and 10 as under-
6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out inDurga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co.v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, 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 limitation, 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 it relates to the remedy."
10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [(1967) 2 SCR 70 : AIR 1967 SC 993] . This was reiterated in Rabindranath Bose case [(1970) 1 SCC 84 : AIR 1970 SC 470] by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik [(1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639] also.)"
41. In the case of Shiv Dass v. Union of India, reported in (2007) 9 SCC 274, the Apex Court held in para 8 and 9 as under -
8. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [AIR 1967 SC 993] . There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik[(1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639] .) In the case of C. Jacob v. Director of Geology and Mining, reported in (2008) 10 SCC 115, the Apex Court held in para 8 to 11 as under-
8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.
9. 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 realise 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.
10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of "acknowledgement of a jural relationship" to give rise to a fresh cause of action.
42. The Division Bench of this Court in which one of us (Hon'ble Virendra Kumar-II,J.) was a member in a judgment passed in Writ Petition No. 12411 (SB) of 2017 (State of Uttar Pradesh and another Vs. Eklavya Kumar), in para-5 has observed as under:
"5. Undue delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. Following the cases of Government of West Bengal Vs. Tarun K. Roy and others 2004(1) SCC 347 and Chairman U.P. Jal Nigam and another Vs. Jaswant Singh and another 2006(11) SCC 464, the Apex Court in New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423."
43. On the basis of above discussion, facts and circumstances and above-mentioned exposition of law held by Apex Court as well as Division Bench of this Court, the findings recorded by the Tribunal in impugned judgment and order dated 16.11.2015 cannot be termed as perverse, against law or facts and case law relied upon by learned counsel for petitioner are not applicable to the facts and circumstances of this case as well as does not help in any manner to the petitioner.
44. In view of the above, this petition being devoid of merits, deserves to be dismissed and is hereby dismissed.
Order Date:- 21.3.2018 Virendra