Allahabad High Court
Ram Kumar Tripathi vs State Of U.P. Thru Prin. Secy. Prison & 5 ... on 9 November, 2017
Bench: Anil Kumar, Daya Shankar Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on: 24.10.2017 Delivered on: 09.11.2017 Court No. - 7 Case :- SERVICE BENCH No. - 1046 of 2008 Petitioner :- Ram Kumar Tripathi Respondent :- State Of U.P. Thru Prin. Secy. Prison & 5 Ors. Counsel for Petitioner :- Rajesh Singh Chauhan, Amit Dwivedi,Lakshmana Singh Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Daya Shankar Tripathi,J.
(As per Hon'ble D.S. Tripathi, J.) By means of this writ petition filed under Article 226 of the Constitution, prayer has been made to issue writ in the nature of certiorari quashing the impugned punishment order dated 21.04.2006 passed by Disciplinary Authority and order dated 30.06.2008 passed by the State Public Services Tribunal, U.P., Lucknow (here-in-after referred to as "the Tribunal") in Claim Petition No.472 of 2008 (Ram Kumar Tripathi Vs. State of U.P. and others).
Facts giving rise to this writ petition, in brief, are that punishment order dated 21.04.2006 was passed by Disciplinary Authority against the petitioner by which two increments of the petitioner were stopped, cumulatively, which was challenged before the Tribunal by way of Claim Petition No.472 of 2008 (Ram Kumar Tripathi Vs. State of U.P. and others). After giving opportunity of hearing, aforesaid claim petition was dismissed vide order dated 30.06.2008 passed by the Tribunal, on the ground of limitation.
Order dated 30.06.2008 passed by the Tribunal and punishment order dated 21.04.2006 passed by Disciplinary Authority are under challenge to this writ petition.
Learned counsel for the petitioner submitted that the petitioner had submitted a representation, in form of review petition under Rule 14 of the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 (here-in-after referred to as "the Rules") before the Principal Secretary of the Department and aforesaid period of review petition should have been excluded by the Tribunal, from the period of limitation as per the Rules. Impugned order passed by the Tribunal suffers from legal infirmity, hence, the writ petition should be allowed.
Learned counsel for the respondents submitted that the period of review petition submitted before the Governor under Rule 14 of the Rules can be excluded from the period of limitation as per the Rules, but the petitioner had submitted a representation before the Principal Secretary, which cannot be termed as a review petition filed before the Governor. Hence, the period of representation lying before the Principal Secretary cannot be excluded from the period of limitation and the review petition is liable to be dismissed.
We have heard Sri Amit Dwivedi, learned counsel for the petitioner, Sri Pratyush Tripathi, learned Standing Counsel and perused the material placed on record.
Section 5 (1) (b) of the U.P. Public Services (Tribunal) Act, 1976 provides the period of limitation for filing a claim petition before the Tribunal, which reads as under:
"(1) (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 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;
(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."
In the case of Karan Kumar Yadav Vs. U.P. State Public Services Tribunal and others reported in 2008 2 AWC 1987 All, it has been held by the Division Bench of this Court that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable. Relevant portion of the report as reproduced below:
"Section 5(1)(b) aforesaid lays down the applicability of Limitation Act and confines it to the reference under Section 4 of the Act, 1976 as if a reference was a suit filed in the Civil Court . This leaves no doubt that a claim petition is just like a suit filed in the Civil Court and in the suit the period of limitation cannot be extended by applying the provisions of Section 5 of the Limitation Act. Sub clause (i) of Section 5 of the Tribunal's Act, specifically provide limitation for filing the claim petition i.e. one year and in sub clause (ii) the manner in which the period of limitation is to be computed has also been provided.
Section 5 of the Limitation Act reads as under:-
Extension of prescribed period in certain cases. -- Any appeal or any application, other than an appliation under any of the provisions of Order XXI of the Code of Civil Procedure 1908 ( 5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient case for not preferring the appeal or making the application within such period.
Explanation:- The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.
Its applicability is limited only to application/appeals and revision. It hardly requires any argument that section 5 does not apply to original suit, consequently it would not apply in the claim petition. Had the legislature intended to provide any extended period of limitation in filing the claim petition, it would not have described the claim petition as a suit filed in the Civil Court under section 5(1)(b) and/or it would have made a provision in the Act giving power to the Tribunal, to condone delay, with respect to the claim petition also.
In view of the aforesaid provision of the Act and the legal provision in respect to the applicability of Section 5 of the Act, it can safely be held that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable."
In the case of Rajsthan Public Service Commission and another Vs. Harish Kumar Purohit and others reported in (2003) 5 SCC 480, it has been held by the Apex Court that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues.
In the case of Sant Lal Gupta and others Vs. Modern Co-operative Group Housing Society Ltd. and others reported in (2010) 13 SCC 336, it has been held by the Apex Court that a coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law forum the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed.
It is admitted fact that the impugned punishment order was passed on 21.04.2006 and the claim petition was filed before the Tribunal on 25.03.2008.
Accordingly, the claim petition has been filed before the Tribunal after expiry of limitation period of one year. In light of aforesaid principles laid down by the Division Bench of this Court, it is clear that limitation period for filing a claim petition before the Tribunal is of one year and delay in filing claim petition before the Tribunal, cannot be entertained. A period can be excluded from the period of limitation, as provided under Section 5 (1) (b) (ii) of the Act.
Learned counsel for the petitioner submitted that a representation in form of review petition under Rule 14 of the Rules, was moved by the petitioner and period of pendency of aforesaid representation should have been excluded by the Tribunal from the period of limitation.
Rule 14 of the Rules provides provision for filing a review petition before the Governor, which reads as under:
"The Governor may at any time, either on his own motion or on the representation of the concerned Government servant, review any order passed by him under these rules, if it has brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing the impugned order or any material error of law occurred which has the effect of changing the nature of the case."
We find from the record that a representation was moved by the petitioner to the Principal Secretary of the department. Aforesaid representation was neither in form of review petition nor it was filed before the Governor. We are of the view that such a representation submitted by the petitioner before the Principal Secretary of the Department, can be termed as review petition filed before the Governor.
In the case of Kamla Yadav Vs. Smt. Shushma Devi and others reported in 2004 (22) LCD 40, it has been held by full bench of this Court that the Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not got to its aid to correct or make up the deficiency. The Court decides what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities.
In the case of Nasiruddin Vs. Sita Ram Agarwal reported in (2003) 4 SCC 753, it has been held by Hon'ble the Apex Court that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provisions is plain, unambiguous. It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation.
Aforesaid view is reiterated by the Hon'ble Apex Court in the cases of Union of India and another Vs. Deoki Nandan Agarwal reported in AIR SC 96, All India Radio Vs. Santosh Kumar and another reported in (1998) 3 SCC 237, Sakshi Vs. Union of India and others reported in (2004) 5 SCC 518, Pandian Chemicals Ltd. Vs. CIT reported in (2003) 5 SCC 590, Bhavnagar University Vs. Palitana Sugar Mills (P) and others reported in AIR 2003 SC 511 and J.P. Bansal Vs. State of Rajasthan reported in (2003) 5 SCC 134.
In light of aforesaid principles laid down by the Full Bench of this Court and Hon'ble Apex Court, the representation moved by the petitioner before the Principal Secretary of the Department, cannot be termed as review petition filed by the petitioner before the Governor. Hence, the aforesaid period of pendency of representation filed by the petitioner before the Principal Secretary of the Department cannot be excluded from the period of limitation as provided under Section 5 (1) (b) (ii) of the Act.
For all the reasons mentioned here-in-above, we are of the considered opinion that there is no legal error in the impugned order dated 30.06.2008 passed by the Tribunal, warranting interference by this Court.
The writ petition is devoid of any merit and it is, accordingly, dismissed.
Order Date :- 09.11.2017 atul [Daya Shankar Tripathi,J.] [Anil Kumar,J.]