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2002 DIGILAW 361 (HP)

BALDEV KUMAR v. STATE OF H. P.

2002-12-31

A.K.GOEL, M.R.VERMA

body2002
JUDGMENT Arun Kumar Goel, J. - Petitioner preferred O.A. No. 42 of 1999 against his termination. Reason given for his termination by the authorities was that he failed to qualify the departmental examination. This order was passed on 15.9.1992. Copy of this order is at page 31 of the writ file. So far O.A. is concerned it was filed before the Tribunal in January, 1999 i.e. after about 6 years and four months. This O.A. was dismissed by the H.P. State Administration Tribunal. 2. Section 21 of the Administration Tribunals Act, 1985 prescribes the limitation. For ready, reference, this Section is extracted here in below:- 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 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 (I) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he has sufficient cause for not making the application within such period. 3. A perusal of the impugned order shows that the O.A. was dismissed on the ground of limitation without going into the merits of the Original Application. 4. In the Original Application itself in paragraph 5, various reasons have been given for not filing the same within the period of limitation prescribed. For convenience, paragraph 5 of the Original Application as well as apply to it by the respondents, both are extracted here-in-below: 5. Limitation: The applicant was terminated from service on September 15, 1992. He was recently married in 1990. The father of applicant was under prolonged illness and he ultimately died in 1995 at the age of 65 years. His mother is also not keeping good health and she is also under prolonged treatment as would be clear from the prescription slips enclosed with the O.A. The applicant has got two daughters and he is the only bread earner of his family. He is also facing a criminal trial in the court of learned Sessions Judge, Bilaspur. His mother is also not keeping good health and she is also under prolonged treatment as would be clear from the prescription slips enclosed with the O.A. The applicant has got two daughters and he is the only bread earner of his family. He is also facing a criminal trial in the court of learned Sessions Judge, Bilaspur. Keeping in view the adverse family circumstances coupled with this impugned termination on 15.9.1992, the applicant remained under great financial constraint as also mental stress and could not approach this Honble Tribunal within the period of limitation. It is therefore prayed that the delay in filing the Original Application may kindly be condoned in the interest of justice." "Reply on behalf of respondents to para No. 5 That contents of this para are not admitted to be correct. The case of the applicant is badly barred by, limitation, latches the impugned order Annexure A-4 passed on 15.9.1992 after the lapse of six years. Thus the application is patently barred by limitation and the applicant as such is not entitled to invoke the jurisdiction of this Honble Tribunal. Hence the application deserves to be dismissed on this sole ground. 6. What emerges from the aforesaid pleadings of the parties is that an attempt was made by petitioner to explain the delay in filing the O.A. within time by giving reasons. A reference to the reply suggests that so far factual averments made in para 5 of the reply are concerned, those have not been controverted. In our considered view it was mandatorily required of the respondents to have either admitted or specifically denied each averment of fact. 7. In the aforesaid background and facts of this case, Mr. Gautam, learned senior Counsel appearing for the petitioner urged that Tribunal has the jurisdiction to have considered the prayer of his client in the exercise of powers under Section 21(3) supra. That having not been done, Tribunal has not only acted illegally but has also failed to exercise jurisdiction vested in it as per law. Per Mr. Gautam on this short ground alone this writ petition deserves to be allowed. 8. This plea was seriously contested by Mr. Sharma, learned Assistant Advocate General. He submitted that this Court may allow post decisional hearing to the petitioner and examine the case on limitation aspect. Per Mr. Gautam on this short ground alone this writ petition deserves to be allowed. 8. This plea was seriously contested by Mr. Sharma, learned Assistant Advocate General. He submitted that this Court may allow post decisional hearing to the petitioner and examine the case on limitation aspect. In our considered view this argument has been raised simply to be rejected. 9. Reason being that whether a case is made out or not for condonation of delay in filing the O.A. has to be first considered by the Tribunal who has been conferred powers under law to deal with it. After due consideration, it is for the Tribunal to come to the conclusion that whether a case is made out to invoke Section 21(3) of the Act, supra or not. Admittedly, this aspect of the case has not been dealt with by the Tribunal. In the circumstances, we feel that prayer to allow post decisional hearing by this Court to the petitioner needs to be rejected out rightly as it is no substitute for pre-decisional hearing (See K.L. Shephard and others v. Union of India and others, 1987(4) SCC 431 and H.L. Trehan and others v. Union of India and others, 1989(1) SCC 764. 10. Looking to the over all facts of this case and keeping in view the above discussion, this writ petition deserves to be allowed and it is ordered accordingly. As a consequence of it judgment passed by HP. Administrative Tribunal in O.A. No. 42 of 1999 on 15.7.2002 is quashed and set aside. At the same time, it is ordered that the O.A. is restored to its original number and date, and thereafter the Tribunal is directed to proceed further in the matter by examining the case in the light of what has been said hereinabove, as well as in accordance with Section 21(3) of the Administrative Tribunals Act,1985, and then proceed further, of course, in accordance with law after hearing the parties. 11. This writ petition has been finally disposed of after it was formally admitted looking to the controversy involved in it. Costs on the parties. 12. Registry will send a copy of this judgment to the Tribunal and parties will also be free to place the same before Tribunal, so as that it is in a position to proceed further in accordance with law.