Orissa High Court
State Of Odisha And Others vs Khirodini Rout And Another ..... Opp. ... on 31 July, 2023
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 22976 OF 2017
In the matter of an application under Article 227 of the
Constitution of India.
--------------
AFR State of Odisha and others ..... Petitioners
-Versus-
Khirodini Rout and another ..... Opp. Parties
For Petitioners : Mr. A.K. Mishra
Additional Government Advocate
For Opp. Parties : M/s. Suvashish Pattnaik, S. Mohanty, B. Moharana, A. Barik, B. Baivab, Advocates [O.P.No. 1] P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of hearing and judgment: 31.07.2023 DR. B.R. SARANGI, J. The State and its functionaries have filed this writ petition challenging the order dated 27.10.2016 passed by the Odisha Administrative Tribunal, Principal // 2 // Bench, Bhubaneswar in O.A. No. 1605 of 2015 quashing the punishment order dated 07.04.2007 and directed the petitioners to prepare the pension papers of the deceased Govt. employee in accordance with the relevant rules and draw and disburse such pension and other pre-retiral dues admissible to the applicant/legal heirs of the deceased Govt. employee within a period of four months from the date of receipt of the order.
2. The factual matrix of the case, in brief, is that the husband of opposite party no.1 (Akrura Charan Rout), while working as a Senior Assistant in the office of petitioner no.2-Director of Health Services, was placed under suspension on 19.11.1986 and retired from service on 30.11.1997 while under suspension. A disciplinary proceeding was initiated on 26.08.1989 against him on various grounds including misappropriation of Government cash, forging records and not making over cash entrusted to him etc. in August, 1991. The said proceeding continued without being finalized even after retirement of the deceased Government employee and concluded on // 3 // 07.04.2007 awarding penalty of recovery of Rs.3,56,185/- from the DCRG, pension and T.I. of the Government employee. Accordingly, certificate case was directed in case further amount remained to be recovered and the period of suspension from 19.11.1986 to 30.11.1997 is to be treated as such. Therefore, the opposite party no.1 approached the tribunal by filing O.A. No. 1605 of 2015 raising objection that the order of penalty has been imposed by the incompetent authority and after retirement of the Government employee. Therefore, the proceeding has to be converted to action under Rule-7 of the OCS (Pension) Rules, 1992, which provides that the Government have reserved to themselves the right of withholding pension or gratuity or both either in full or in part. Thereby, petitioner no.2 has no competence to pass an order for recovery of the amount. Further, the Orissa Public Service Commission has not been consulted before passing such order which is statutory requirement of the aforesaid rules. Furthermore, for the selfsame issue a criminal case was registered against the Government employee, which was ended in // 4 // acquittal on 07.01.2010 and in view of such acquittal, the findings of the enquiring officer in a disciplinary proceeding cannot be relied upon to award penalty. After due adjudication, the tribunal allowed the original application filed by the opposite party no.1 by quashing the order of punishment imposed against the deceased Government servant and directed the State-petitioners to pay the legitimate claim. Hence, this application.
3. Mr. A.K. Mishra, learned Addl. Government Advocate appearing for the State-petitioners contended that the petitioners, being the respondents before the tribunal, had raised preliminary objection with regard to maintainability of the original application, as the same was filed beyond the limitation period prescribed and specifically pleaded that the husband of the opposite party no.1 was communicated with the order dated 07.04.2007 with regard to punishment imposed on him by registered post with A.D. But on receipt of the same, the husband of the opposite party no.1 never preferred any appeal and he died on 11.02.2011. It is contended that neither the // 5 // delinquent official nor after his death, his legal representatives have preferred any appeal against the order of punishment. But, O.A. No. 1605 of 2015 was filed on 22.06.2015, after long lapse of more than eight years challenging the order of punishment dated 07.04.2007. The said original application was not maintainable, being grossly barred by limitation, as per the provisions contained under Section 21 (1) (a) of the Administrative Tribunals Act, 1985. It is contended that even though the question of limitation was raised before the tribunal, but the same was not taken into consideration and, as such, the order impugned has been passed, which cannot be sustained in the eye of law.
4. Mr. B. Baivab, learned counsel appearing on behalf of Mr. B. Moharana, learned counsel for opposite party no.1 contended that since the pension and pensionary benefits are continuing cause of action, the objection raised by the authority with regard to the limitation cannot stand on the way of the tribunal to decide the matter. As such, the tribunal is well justified in passing // 6 // the order impugned by extending the benefit to the opposite party no.1 by quashing the order impugned dated 07.04.2007, as the same was passed by an incompetent authority. More so, the benefit which has been accrued to the husband of the opposite party no.1, should be paid forthwith. It is further contended that though the opposite party no.1 has already received the provisional pension, but final pension has not yet been finalized because of pendency of the writ petition. Thus, it is contended that the benefit, which is admissible to the opposite party no.1, should be paid to her forthwith in compliance of the order passed by the tribunal.
5. This Court heard Mr. A.K. Mishra, learned Additional Government Advocate appearing for the petitioners-State of Odisha and Mr. B. Baivab, learned counsel appearing for opposite party no.1 in hybrid mode and perused the record. Pleadings having been exchanged between the parties, the matter has been disposed of finally with the consent of learned counsel for the parties at the stage of admission.
// 7 //
6. Considering the factual matrix, as delineated above, there is no dispute before this Court that in pursuance of the proceeding initiated against the husband of opposite party no.1, he was placed under suspension on 19.11.1986 and the proceeding was initiated against him in the year 1989 and while the proceeding was continuing he retired from service on 30.11.1997. But the proceeding continued and finally it was concluded on 07.04.2007 awarding penalty of recovery of Rs.3,56,185/- from the DCRG. The deceased employee has not challenged the same in any forum nor preferred any appeal as per the provisions of law and kept silent acknowledging the punishment. A criminal case was also instituted against the deceased Government employee, wherein he was acquitted on 07.01.2010. But the present opposite party no.1, the legal representative of the deceased government employee received the copy of the order on 25.04.2011, as stated, and, therefore, it is contended that she approached the tribunal by filing O.A. No. 1605 of 2015 as pension and pensionary benefits are the continuing cause of action.
// 8 //
7. On perusal of the Original Application filed by opposite party no.1, as at Annexure-4, it is mentioned as follows:
5. 'Limitation' "The applicant further declares that the application is within the limitation as prescribed under Section 21 of the Administrative Tribunal's Act, 1985".
8. Section 21 of the Administrative Tribunal 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, 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 // 9 // 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."
9. In view of the aforementioned provisions, it is made clear that a mandate has been put on the Tribunal by using the word "shall" not to admit an application 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.
// 10 // In State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912, the apex Court held that the use of word "shall" is a presumption that the particular provision is imperative. As such, instances have been taken on rule- 57(2) of the Schedule-II to the Income Tax Act, 1961, which provides that the full amount of purchase of money payable "shall" be paid by the purchaser to the Tax Recovery Officer on or before the fifteenth day from the date of sale of property. Thereby, by using the word "shall", the apex Court held that it is mandatory on the part of the purchaser to pay the full amount to the Tax Recovery Officer. As such, following this principles, the apex Court time and again held similar view in various subsequent judgments and ultimately got approval in the case of Pesara Pushpamala Reddy v. G. Veera Swamy, (2011) 4 SCC 306.
In C.N. Paramsivam and Anr. V. Sunrise Plaza and others, (2013) 9 SCC 460, the apex Court relying upon the word "shall" as well as the earlier decision of the Court on pari materia provision in Order XXI of the // 11 // CPC, held that making of the deposit by the intending purchaser is mandatory.
In Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480, Hon'ble Justice Hidayatullah observed that the word "shall" is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands and points out.
In State of U.P. v. Babu Ram, AIR 1961 SC 751, Hon'ble Justice Subarao, observed that when a statute uses the word "shall", prima facie it is mandatory, but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.
In Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, the apex Court, while interpreting Section 202 of the Cr.P.C, which provides that the Magistrate "shall" in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused, and either inquire // 12 // into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding, held that the word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, on looking at the intention of the Legislature, the Court found that the provision is aimed at preventing innocent persons from being harassed by unscrupulous persons making false complaints, and therefore the inquiry or investigation contemplated by the provision before issuing summons was held to be mandatory.
10. Taking into consideration the aforementioned analogy, applying the provisions under Section 21(1) and considering the legislative intent attached to the provisions, it is made clear that using the word "shall" the legislature have put a mandate, i.e., mandatory condition on the Tribunal to entertain the Original Application in connection with the grievance of the applicant within one year from the date on which such final order has been made. On perusal // 13 // of the provisions contained under Section 21(1) and (2), it is crystal clear that 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, the Tribunal can admit an application, whereas Sub-section (2) of Section 21 makes clear that notwithstanding anything contained in Sub-section (1) where 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, but 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 // 14 // months from the said date, whichever period expires later. Sub-section (3) of Section 21 states by using non-abstante clause that 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. The using of word "notwithstanding", a non-obstante clause, under Sub-section (3) of Section 21 gives overriding effect over the provisions.
In Union of India v. G.M. Kokil, 1984 (Supp.) SCC 196: AIR 1984 SC 1022, the apex Court held that a clause beginning with "notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force", is sometimes appended to a section in the beginning, with a view to give the enacting part of the // 15 // section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause.
In T.R. Thandur v. Union of India, AIR 1996 SC 1643, the apex Court held that a non-obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the non-obstante clause or to override it in specified circumstances.
In Central Bank of India v. State of Kerala, (2009) 4 SCC 94, the apex Court held that while interpreting a non statute clause the court is required to find out the extent to which the Legislature intended to give it an overriding effect.
In P. Virudhachalam v. Management of Lotus Mills, AIR 1998 SC 554: (1998) 1 SCC 650, the apex Court held that the expression "notwithstanding anything in any other law" occurring in a section of an Act cannot be construed to take away the effect of any provision of the Act in which that section appears.
// 16 // Therefore, the effect of provisions contained under Sub-sections (1) and (2) of Section 21 with regard to condonation of delay is dependent upon the satisfaction of the Tribunal if the application shows the sufficient cause.
11. The pari materia provisions for condonation of delay are derived from Section 5 of the Limitation Act. Therefore, the word "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when no negligence nor inaction, nor want of bona fide, is imputable to the appellant. The term "sufficient cause" under Section 5 of the Limitation Act apparently covers not only those circumstances (such as the Courts being closed or time being spent in obtaining copies, or the party being a minor or insane) which the law expressly recognizes as extending the time, but also such circumstances as are not expressly recognized but which may appear to the Court to be reasonable.
// 17 //
In Sitaram Ram Charan v. M.N.
Nagrasharma, AIR 1960 220, the apex Court held that "sufficient cause" means the appellant's explanation for the delay has to cover the whole period of the delay.
In Lonand Grampanchayat v. Ramgiri, AIR 1968 SC 222, the apex Court held that the word "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable.
In State of West Bengal v. Administrator, Howrah Municipality, (1972) 1 SCC 366, the apex Court held that the expression "sufficient cause" occurring in Section 5 of the Act would mean that "no negligence", "no inaction" or mala fides is imputable to the party.
Similar view has also been taken by the apex Court in Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC
195. // 18 // In Sankaran Pillai v. V.P. Venguduswami, (1999) 6 SCC 396: AIR 1999 SC 3060, while construing the provisions contained under Section 11(4) of the T.N. Building (Lease and Rent Control) Act, 1960, the apex Court held that the expression "sufficient cause" under Section 11 (4) of the Act necessarily implies an element of sincerity, bona fides and reasonableness.
In State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94: AIR 2000 SC 2306, the apex Court held that the expression "sufficient cause" occurring in Section 5 of the Limitation Act would mean that a liberal approach be given for sufficiency of cause for condonation of delay in filing the appeal.
12. In State of Nagaland v. Lipok Ao, AIR 2005 SC 2191, the Court referred to several precedents on the subject and observed that the proof of "sufficient cause" is a condition precedent for exercise of discretion vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is // 19 // one of the circumstances to be taken into account in using the discretion. The Court also took cognizance of the usual bureaucratic delays which take place in the functioning of the State and its agencies/ instrumentalities and observed:
"Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on- the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non- grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal."
13. The apex Court in Maniben Devraj Shah v. Muinicipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, held in paragraphs 24 and 25 to the following effect:-
"24. What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone // 20 // the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. 25. In case involving the State and its agencies/instrumentalities, the court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest".
After holding as above, in paragraph 28 the apex court has stated as follows:
"28.The application filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:
(a) The name of the person who was having custody of the record has not been disclosed.
(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.
(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.
(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial court were not filed till 23-08-2010 despite the fact that Shri Sirsikar had given intimation on 12-5-2003 about the judgments of the trial court.
// 21 //
(e) Even though the Corporation has engaged a battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be appealed against."
14. In Amalendu Kumar Bera and others v. State of West Bengal, 2013 (4) SCC 52, the apex Court in paragraph-9 held as follows:
"We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent State. There is no dispute that the expression "sufficient cause"
should be considered with pragmatism in justice oriented approach rather than the technical detection of "sufficient cause" for explaining every day‟s delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in Union of India v. Nripen Sarma, AIR 2011 SC 1237, the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant Union of India. The High Court refused to condone the delay on the ground that the appellant Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases // 22 // regularly in filing the appeal after the same became operational and barred by limitation."
15. In Office of the Chief Post Master General & Ors. v Living Media India Ltd. & Anr. : 2012 AIR SCW 1812, it has been held as follows:
"13. In our view, it is the right time to inform all the Government bodies; their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dated, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
16. It is apt to mention here that referring to the judgment of this Court in State of Odisha v. Bishnupriya Routray, 2014 (II) ILR-CTC 847, which was authored by // 23 // one of us (Dr. Justice B.R. Sarangi), similar orders were passed by this Court and challenging those orders the State had moved the apex Court in large number of S.L.Ps., which were dismissed by confirming the orders passed by this Court refusing to condone the delay in preferring the appeal.
17. In State of Odisha and another v. Miss Sumitra Das, 2021 (II) ILR CUT 241, the Division Bench of this Court had relied upon the judgment of the apex Court in the case of State of Madhya Pradesh v. Bherulal, decided on 15.10.2020 in SLP (C) Dairy No. 9217 of 2020, wherein the SLP was dismissed as time barred and the apex Court awarded cost of Rs.25,000/- on the State of M.P. and, as such, the judgment of the apex Court was also relied upon by this Court in paragraph-6 of the judgment to the following effect:-
"6. Thereafter the aforementioned decision has been referred to and reiterated in a number of orders of the Supreme Court. A sampling of such orders is as under:
// 24 //
(i) Order dated 13th January 2021 in SLP No.17559 of 2020 (State of Gujarat v. Tushar Jagdish Chandra Vyas & Anr.)
(ii) Order dated 22nd January 2021 in SLP No.11989 of 2020 (The Commissioner of Public Instruction & Ors. v. Shamshuddin)
(iii) Order dated 22nd January 2021 in SLP No.25743 of 2020 (State of Uttar Pradesh & Ors v. Sabha Narain & Ors.)
(iv) Order dated 4th February 2021 in SLP No.19846 of 2020 (Union of India v. Central Tibetan Schools Admin & Ors)
(v) Order dated 11th January 2021 in SLP No.22605 of 2020 (The State of Odisha & Ors v. Sunanda Mahakuda)"
From the above it would be evident that by order dated 11.01.2021 passed in SLP No.22605 of 2020 (State of Orissa v. Sunanda Mahakuda) filed by the State of Odisha, the apex Court dismissed the SLP imposing cost of Rs.25,000/- for filing a belated SLP without offering any credible explanation.
18. The declaration in Paragraph-5 of the Original Application, as mentioned above, clearly spelt out that the application is within the period of limitation, as prescribed under Section 21 of the Administrative Tribunals Act, 1985, which is not true, rather it is a false declaration.
// 25 //
19. This Court would wish to take note that litigations/appeals are expected to be filed within the period of limitation contemplated under the Statutes. Rule is to follow limitation. Condonation of delay is an exception. Exceptions are to be exercised discreetly, if the reasons furnished are genuine and acceptable. The Courts are vested with the power of discretion to condone the delay, that does not mean that enormous delay in instituting the case is to be condoned mechanically. Undoubtedly, if the reasons are candid and convincing, then the Courts are empowered to exercise its power of discretion for the purpose of condoning the delay. Power of discretion is a double-edged weapon. Thus, discretionary powers are to be exercised cautiously and uniformly so as to avoid any prejudice to either of the parties. Exercise of power of discretion if made excessively, it would defeat the purpose and object of the law of limitation. The Courts are expected not to travel beyond the permissible extent, so as to condone the enormous delay in a routine or mechanical // 26 // manner. Power of discretion is to be exercised to mitigate the injustice, if any occurred to the litigants.
20. Any citizen, who slept over his right, cannot wake up one fine morning and knock the doors of the Court for redressal of his grievances. The person, who slept over his right, has to necessary lose his right on account of efflux of time, which caused expiry of the cause. In the event of institution of appeal or litigation after a prolonged period, the right of defence will also be affected and further it will lead to unnecessary harassment for a prolonged period. All these mitigating factors are to be considered while condoning the huge delay in instituting the litigations/appeals. Thus, the law of limitation has got a definite reasoning and logic. Various time limitations prescribed under many statutes are adopting the "Doctrine of Reasonableness". The principles of reasonableness would be adopted with reference to the nature of litigations to be instituted. Various time limits are prescribed for civil litigations, appeals and other varieties of litigations, considering various factors and by applying the doctrine of // 27 // reasonableness. Thus, the law of limitation became substantive and to be followed scrupulously in all circumstances and on exceptional cases, the delay is to be condoned, if the reasons are genuine and acceptable. In absence of the same, the objection raised by the petitioner is well justified and the consequential order passed by the Odisha Administrative Tribunal is illegal, arbitrary, unreasonable and liable to be set aside.
21. The present petitioners raised specific objection, as pleaded in paragraph-15 of the writ petition, to the following effect:-
"15. That, It is submitted that the Order impugned before the learned Tribunal was passed vide Order No.12463, dtd. 07.04.2007 and same was communicated to the husband of the Opp. Party No.1 - Applicant vide memo No.12464, dtd.07.04.2007 by the Applicant in the Original Application. The husband of the Applicant expired on 11.02.2011 but the preferred not to challenge the Order dtd.07.04.2007 either by filling Appeal or by filing Original Application till the month of February, 2011. In the instant case, the impugned Order was passed on 07.04.2007 where as O.A. no.1605/2015 was filed only on 22.06.2015. The limitation provided under Section -21(1) (a) of the Administrative Tribunal Act, 1985 is one year from the date of the final order. Hence, in view of the limitation provided in Section 21(1) (a) of the Act, 1985, the learned Tribunal ought to have dismissed // 28 // the O.A. No.1605/2015 at the threshold being barred by limitation."
Similarly, in ground-(H) of the writ petition, it has been stated as follows:-
"H) For that, it is submitted that the Order impugned before the learned Tribunal was passed vide Order No.12463, dtd. 07.04.2007 and same was communicated to the husband of the Opp. Party No.1- Applicant vide Memo No.12464, dtd.07.04.2007 by Registered Post in the self same address as has been described by the Applicant in the Original Application. The husband of the Applicant expired on 11.02.2011 but he preferred not to challenge the Order dtd.07.04.2007 either by filling Appeal or by filling Original Application till the month of February, 2011. In the instant case, the impugned Order was passed on 07.04.2007 whereas O.A. No.1605/2015 was filed only on
22.06.2015. The limitation provided under Section - 21(1) (a) of the Administrative Tribunal Act, 1985 is one year from the date of the final order. Hence, in view of the limitation provided in Section 21(1) (a) of the Act, 1985, the learned Tribunal ought to have dismissed the Original Application i.e. O.A. no. 1605/2015 being barred by limitation."
22. The order of punishment was been passed on 07.04.2007 and, as such, there was no valid and justifiable reason to entertain such original application after long lapse of more than eight years. More so, neither the deceased government employee nor the opposite party no.1 preferred appeal against the said order of punishment. Thereby, the order of punishment imposed by the // 29 // disciplinary authority reached its finality, as a result of which recovery of amount of Rs.3,56,185/- has been sought to be made from the DCRG and pension of the deceased government employee. Once the order of punishment reached its finality, the tribunal could not have passed the order impugned stating inter alia that this is neither a sanction nor an order of the Government as per the stipulation in Rule-7 of the Pension Rules. But it has been mentioned that since DHS (O) is the appointing authority of the deceased Government employee, the proceeding initiated against him may be finalized at his end as per OCS (CC&A) Rules, 1962. The tribunal, while entertaining the original application has come to a finding that punishment order dated 07.04.2007 having been passed by an incompetent authority in contravention of Rule-7 of OCS (P) Rules, 1962, the same cannot be sustained in the eye of law. But, without adhering to the question of limitation, the tribunal has visited beyond its jurisdiction to decide the question by entertaining the original application on the ground of applicability of Rule-7 // 30 // of OCS (P) Rules, 1962. As such, if the order of punishment has been passed and communicated to the deceased employee, that itself is sufficient and more so the order of punishment so imposed has not been challenged before any forum. If the original application itself is barred by limitation and this question was raised before the tribunal, it is incumbent upon the tribunal to pass order on the question of limitation instead of passing the order on merits.
23. In the above view of the matter, the order dated 27.10.2016 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No. 1605 of 2015 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. Since the deceased government employee died long since and an outstanding dues of Rs.3,56,185/- has been determined against him, retaining such amount, any other pensionary benefits as due and admissible to the Government employee, shall be paid to opposite party no.1 to resolve the dispute for all times to come. Needless to say, deduction of amount of // 31 // Rs.3,56,185/-, as determined by the authority, shall be done from the amount computed in favour of the petitioner towards pensionary benefits and balance amount shall be released in favour of the opposite party no.1 forthwith to resolve the dispute.
24. With the aforesaid observation and direction, the writ petition stands disposed of. However, there shall be no order as to costs.
..............................
DR. B.R. SARANGI,
JUDGE
M.S. RAMAN, J. I agree.
..............................
M.S. RAMAN,
JUDGE
Orissa High Court, Cuttack
The 31st July, 2023, Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA Date: 02-Aug-2023 17:26:14