Central Administrative Tribunal - Cuttack
B K Jena vs M/O Railways on 29 November, 2023
SV WSS Mow i DA FAGAIOTSS of RATS CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH 0/0733 of 2016 Reserved an: 22.01.2023 Pronounced on: 29.21.2025 CORAM:
HON'BLE MR. PRAMOD KUMAR DAS, MEMBER { A) HON'BLE MR. RAJNISH KUMAR RAI, MEMBER ()) ) Basant Kumar Jena, aged about 50 years, Ex-Dy aS/ Chainbasa/ $.E.Railway under Chakradharpur Division, permanent resident of Vill. Alupatna, P.O.- Satapada, Via/ P.S.- Brahmagrri, Dist- Puri, Odisha.
wows Applicant VERSUS Union of India, represented through the Gxneral Manager, South Eastern Railway, 11 Garden Reach Road, Kolkata-43, West Bengal.
few iS be Chief Operating Manager, South Eastern Railway, Garden Reach, Kolkata-43, West Bengal.
Eabd . Additional Divisional Railway Manager, S.E. Railway, Chakradharpur Division, At/P.Q.- Chakradharpur, Dist. West Singhbhom, Jharkhand.
4. Senior Divisional Gperation Manager, South Eastern Railway, Chakradharpur Division, At/P.G.- Chakradharpur, Dist- West Singhbhom, Jharkhand.
orcoee Respondents For the applicant : Mr, NLR.Routray, Counsel For the respondents - Mr. G.R.Verma, Counsel fond OA 2GO/f807S3 af ZI6 OR DER s This QA was admitted on 24.10.2016 keeping the point of limitation open.
2 Ld. Counsel for the applicant has submitted that due to Hiness, the applicant remained absent from duty, for which, disciplinary proceedings was initiated against him for his unauthorized absence and inquiry was held ex parte. Based on such ex parte report, the Disciplinary Authority imposed the punishment of removal from service vide order dated 27.41.2009 (A/ 1). Against the said order, the applicant preferred appeal on 19.01.2010 [A/2) praying inter alia to convert the order of punishment from removal to compulsory retirement. But the Appellate Authority without considering bis appeal in its proper perspective rejected the same vide order dated 15.04.2010 (A/3). The applicant preferred revision on 28.11.2015 (A/S). Since, Revisional Authority sat ove rhe matter, he has filed this OA praying to quash the order ofthe DA dated 27.11.2009 {A/1} and the order af the AA dated 15.04.2010 (4/3) and to direct the respondents to impose any other minor panalty SSA MMAAAAAAIAAOAO§_¥>§} SSS ws ONS emery OR DAY OOT IS oF SSNS ted including compulsory retirement along with MA No. 587 /2016 praying to condone the delay.
3. Respondents filed counter oppusing the prayer of the applicant both on merit as well as on limitation. Applicant has also filed rejoinder.
4, The Hon'ble Supreme Court in D.C.8. Negi y. Union of India & others (Civil Appeal No.7956 of 2011) decided on 73.2011, condemned entertaining of the Original Applications by the Tribunal in disregard of the Hmitation prescribed under Section 21 of the Administrative Tribunals Act 1985. In the said order, following observations were made:
"Refore parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications fled under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:
"21. Limitation - (1) A Tribunal shall not admit an application, -
{a} in a case where a final order such as is mentioned in clause (a] af 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;
Ay OA CONS GOT S af RULE Oe (b} In a case where an appeal or representation such as is mentioned in clause (b} of subsection (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(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 perlod of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates > and
(b) no proceedings for the redressal af such grievance had been commenced hefore 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 (bh) af sub-section (1) ar, 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 net making the application within such period."
3 OA ZAR HOPES of 218 A reading of the plain language of the ahove reproduced Section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (5) of Section
211) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for nat doing so within the prescribed period and an order is passed under section 21 (3).
in the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this ornission by pointing out that In the reply filed on behalf of the respondents, no such objection was raised, but we have not felt impressed. In cur view, the Tribunal cannot abdicate its duty to act In accordance with the statute under which itis established and the fact that an objection of Hmitation is not raised by the respondent/non-applicant is not at all relevant."
in view of the position of Rules and Law, cited above, this Tribunal consider it appropriate to deal at the first instance the point of limitation, Accordingly, heard Ld. Counsel for both sides in extense on the paint of limitation,
5. Ld. Counsel for the applicant has submitted that due to his Ulness he remained absent from service, which he was not able to Inform to the 5 OA SSO RIES oF 5 authorities, He has not received copy of the memorandum initiating disciplinary proceedings against him. 10 conducted the inquiry behind his hack and submitted report ex parte. The Disciplinary Authority imposed the punishment but he was not served the copy of the report of the 10 or the order of the DA. However, after collecting order af punishment dated 27.11.2009, he submitted appeal on 19.01.2010 but not exhaustively as he was suffering from Manic Depression Psychosis. The Appellate authority rejected the appeal vide order dated 15.04.2070 without due application of mind which order he has got belatedly. Nence, he could not prefer revision within the time provided in the Rules. However he submitted revision petition on 28.11.2015 with an application for condonation of delay in preferring revision belatedly. Hence, it is the contention of the learned counsel for the applicant that there was no intentional or deliberate delay In preferring the revision or appreaching this Tribunal. Purther, it has been contended that if delay is condoned and the matter is heard on merit, no third party interest would he affected and if not, the Interest of the applicant would be seriously prejudiced. Tt has further been submitted that when substantial justice and technical consideration are pitted against each other, the cause of ound CLA DRAPES oF SUG substantial justice deserves to be preferred, for the other side cannot claim to have vested right in the injustice being done because of the non- deliberate delay is the law of the land. Hence, if is submitted that this being one such case, by applying the law laid down by the Hon'ble Apex Court in the case of Tukaram Kanha Joshi & Ors. Vs. Maharastra industrial Development Corporation & Ors. (201 3} 1 SCC 353, he has prayed to condone the delay. He has also relied an the decision of the Hon'ble High Court of Orissa in the case of Kalyan Ranjan Sahoo Vs. UOE& Ors., W.P.{C) No. 489/2015 to substantiate his prayer ta condone the delay. Accordingly, Ld. Counsel for the applicant has prayed to allow the MA.
6. Om the other hand, learned counsel for the Respondents has submitted that the stand taken by the Applicant is nothing but an afterthought to overcome the period of limitation. it has been contended that the Medical Officer, Police Hospital Puri has certified that the applicant is suffering from Manic Depression Psychosis and is under advice since 16.10.2007 with intermittent checkup. The said certificate was issued on 16.10.2009. The outdoor tickets produced by the applicant were dated 16.10.2007, 15.04.2008 and O7,08.20090. Hf the same are he OA 260 {807 83 of SOS taken to be genuine that does not explain the reason a5 to why the applicant remained silence after the order under Annexure-A/3 was issued and the same was received by him on 06.05.2010. Thus, according to learned counsel for the applicant the explanation given for the delay and laches being no explanation, the MA se aiso the GA are liable to be dismissed. In this regard, learned counsel for the Respondents has also relied on the decision of the Hon'ble Apex Court in the case of S.S.Rathore vs State of MP, AIR VAG SC LO.
7 'The applicant was holding a responsible post as Deputy SS /CBSA in Railway. The applicant did not dispute in his pleading oF in course of hearing on the allegation leveled against him in the Memorandum of charge dated 10.03.2009 that he remained absent unauthorizedly from 11.03.2008 ty 05.02.2009 without giving any intimation or taking pricr permission. it is tie case af the Applicant that his unauthorized absence was not willful but for his ilmess. However, 101s the stand of the applicant that after collecting the order of punishment the applicant submitted appeal on 19.01.2020. Even if said factum is taken as ine, in his appeal no whisper has made what has heen raised in this GA that be has not received the charge memo, report of enquiry or order of punishment.
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a eNa SSO SGOT 33 af SG Rather, it is seen that in his appeal he has the order of punishment of removal fram service he reduced to compulsory retirement to enable him to get pension and pensionary benefits for sustenance of Hie, Admittedly, the said appeal was considered and rejected by the Appellate Authority vide order dated 15/19.04.2010. It is not the case of the Applicant that he did not receive the said order of rejection of his appeal. But. he kept quiet for near about a period of five years and thereafter woke from the slumber and submitted application in the guise of revision petition only on 28.11.2015. Thereafter, he Mled the instant OA on 23.09.2016. The period from the date of rejection of his appeal wide order dated 15/19.04.2010 tll filing of revision petition dated 28.1 L.2015 remains unexplained and stares against the applicant.
@ This Tribunal is reminded by the decision of the Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewarage Board and Others v. T.T. Murali Babu, 2014 (4) SCC 108, the Hon'ble Apex Court have clearly held that the delay may have impact on others' ripened rights and may unnecessarily drag others Into litigation, and expressed opinion as under:
Ww GA QAO ONT AS of BING 46 Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The eourt should bear in mind that ft ig exercising an extraordinary and equitable urisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure oF pleasure, the Court would be under legal abligation to scrutinize whether the lis ata belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in mast circumstances inordinate delay would only Invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and Inaction on the part af a Higant-a 'Higant whe has forgotten the basic nerms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise ke a phoenix.
Delay dogsbring in hazard and causes injury te the lis.
in the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. [tis the duty af the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, im the present case, such belated approach gains more significance as the respondent- employee being absolutely careless to his duty and nurturing a lackadaisical attihde to the responsibility had remained unauthorisedly absent on the pretext af some kind of if health, We repeat af the cost of repetition that remaining mmmocuously oblivious to such delay does not faster the cause of justice. On the contrary, it brings In injustice, for itis Hkely to affect others. Such delay may have inpac ti GBA LUO IS af AG t on others' ripened rights and may unnecessarily drag others into Htigation which In acceptable realm af probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons ~ who compete with 'Kumbhakarna' er for that matter 'Rip Van Winkle'. In our considered ppinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold." (emphasis added).
ra g, Close to this case, ip the case of State of Uttaranchal and Another y. Shiv Charan Singh Bhandari and Others, 2013 (42) SCL 179, the Hon'ble Apex Court declined to exercise extraordinary jurisdiction for mordinate delay and held as un der:
"In State of TN. Vv. Seshachalam, this Court, testing the equali ty clause on the bedrock of delay and laches pertaining fo grant of service benefit, has ruled thus: .filing af representations alone would not save the period. of limitation. Delay or laches is a relevant factor for a court of law to determine the question as fo whether the claim made by an applicant deserves consideration. Delay and/or laches an the part ofa government servant may deprive him of the benef t which had been given fo others. Article 14 of the Constitution of India would not. ina situation of that nature, he attracted as if Is well known that law leans in favour of those who are alert and vigilant."
10. In the case of Uttaranchal Forest Develapment Corpn. and another v. J abar Singh and others (2007) 2SCC 1 12, the Hon'ble Apex wa QA 26Q/UO7 33 of MG Court was pleased to observe as under;
"43 The termination order was made in the year 1995 and the writ petitions were admittedly filed In the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been Aled after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches."
11. Inthe case of Bhoop Singh vy. Union of India, (1992) 3 SCC 136, if was held by the Hon'ble Apex Court as under:
"s There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain sient for long, he thereby gives rise to 4 reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified im acting on that belief This is more so in service matters where vacancies are required to be filled promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed"
12. In the case of PLK. Ramachandran Vs. State of Kerala & Anr. AIK 7908 SC 2276, the Honble Apex Court while considering a case af condonation of delay of 565 days, wherein no explanation much less 3 13 OA PANS GOIAS of ALB reasonable ar satisfactory explanation for condonation of delay had been given, held that "Law of limitation may harshly affect a particular party hut it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds."
13. We have gone through the decisions of the Hon'ble Apex Court and the Hon'ble High Court of Orissa cited by the Ld. Counsel for the applicant. The Hon'ble High Court of Orissa, no doubt, has quashed the order wherein this Tribunal dismissed the OA filed by Kalyan Ranjan Sahao on the ground of limitation based on facts of the said case. The present being different and distinct, the decision in Kalyan Ranjan Sahoo case has no application in this case. Similarly, the decision of the Hon'ble Apex Court in Tukaram Kanha joshi {supra} case holding that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, has no application to the present case in view of the specific decision of the Hon'ble Apex Court In the cases of D.CS.Negi {supra} and Chennai Metropolitan (supra).
Ba GA PAG SQOP SS af TOG
14. In the case of State of Uttar Pradesh & Ors Versus Rajmati Singh, in Civil Appeal No. 9329 of 2022 (Arising out af SLP(C) No. 2B1Z8 of 2017) disposed of on 07.12.2022, the Hon'ble Apex Court held as under:
"10. The question that falls for our consideration Is whether the claim of the respondent was inordinately delayed, obsolete, stale, and barred by the principle of delay and laches.and as a civil claim, whether it was barred by law of imitation?
11. To trace out the answer to the question formulated above, some facts need to be repeated. The respondent was apparently relieved on O408197S to undergo the required BTC courses. She was allegedly not permitted to resume duties in the year 1974 after she had completed B.Ed. degree, She made several representations, one after the other, but did not deem it appropriate fo approach any judicial or quasi judicial forum. It was only after the enactment of Right to Information Act, 2005, whereunder the State Information Commission came to be constituted, that the respondent moved before the said Commission to issue a directive to discover the fate of her representations. The Commission passed an Order on 05.03.2009 asking the appellant authorities to cormmunicate the decision on the OOo an out of the respon ee and it wee in His accor ding to 'he respondent revived her ponding é claim.
12. ln our considered view, the respondent like any vigilant citizen, especially given that she does not belong to economically or socially backward segments of the society, was expected to assert her rights before an appropriate forum within a reasonable time. Repeated representations a8 GA REO MNT SA af S018 neither give rise nar revive the cause of action, if it had already arisen in the past. Respondent's difficulties do nat end there, given that her services were brought to an end when she was denied to resume her duties in the year 1974, She was, thus, required to seek a declaration of her continuity or have a writ of mandamus issued for her reinstatement. She did not do either. The Information Commission is not a forum to adjudicate service disputes, It was not a forum which either could declare the rights of the respondent or grant any service benefits. The respondent's move before the State Information Commission was thus an exercise in futility. Ie leaves no reom for doubt that the respondent slept over her rights and allowed the grass to grow under her fest for a long duration of aver 33 years.
13. We are of the considered opinion that the respondent waived her rights to raise objections in this regard and is deemed to have abandoned her employment.
i4, The next question which falls for consideration Is whether a deemed order of termination of services or abandonment of employment could be challenged by the respondent before the Tribunal in the year 2010? There can be no quarrel that such a challenge was hopelessly time barred under Section 5 of U.P. Public Services (Tribunal) Act, 1976.
15. The view taken by the Tribunal on 11.06.2010 was legally correct and tenable. The High Court nevertheless vide Order dated 02.07.2012 passed in the respondent's Writ Petition set aside the Tribunal's order. A perusal of the High Court's order reveals that neither the principles of delay and latches nor the law of limitation were considered, with reference to the facts of the case in hand. The High Court blissfully ignored the proposition of law and preceeded on the premise that there was no fault on the part of the respondent to file the claim petition before the Tribunal as "the impugned order was passed on 04.06.2009 xx xx xx", The High Court completely overluoked the fact 3S EMA SEQ SHOT SS af SO that it was not an order passed on the representations made by the respondent but was a communication sent to her under compulsion due to the directions issued by the State Information Commission. The said communication In nu way revived the cause of action In favour of the respondent."
15. In view of the ahove, the revision petition fled on 28.11.2015 eannot save the imitation, which started after the rejection of appeal on 15.04.2010 whereas this OA has been fled on 23.09.2016. Therefore, entertaining this OA for adjudication on merit would tantamount to give the life to a dead case, which was set at rest since 2010. In the result, the MA stands dismissed. Asa consequence, the OA fails.
(Rainishsikum (Pramod Kumar Das} Member (ludl} Member (Admn.) RKSES