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Himachal Pradesh High Court · body

2005 DIGILAW 425 (HP)

SAVITRI CHAUHAN v. STATE OF H. P.

2005-11-17

M.R.VERMA, S.S.NEGI

body2005
JUDGEMENT M.R. Verma, Justice (Retd.) Chairman. In this original application the appellant has inter alia claimed the following reliefs: "(1) That the respondents may be directed to regularize the applicant as a Clerk who effect from 1.4.1982 and alternatively with effect from 8.5.1985 with all consequential benefits. (ii) That the respondents may be directed to give to the applicant the arrears of salary due and permissible to her on account of relief at (1) above" 2. The case of the applicant as made out in the original application is that she possessed the requisite qualification and was given employment as a daily waged Clerk w. e. f. 1.4.1982 when the joined her duties as such. The employment of the applicant was extended from time to time and her experience certificate as having worked as a Clerk w. e. f. 1.4.1982 to 12.5.1985 is Annexure A-8. She bonafide believes that her case was recommended for regularisation but vide order dated May 8, 1985 (wrongly mentioned as 1995 in sub para 3 of para 6 of the original application) Annexure A-9 her services were ordered to be regularised as a Peon. She objected such appointment but on assurance by the S.D.O.(Civil) she accepted the appointment as a Peon. After appointment as a Peon and before that she has been discharging the duties and function of a Clerk but was neither given the pay of a Clerk nor her services were regularized as a Clerk. It is also her case that she made a representation (Annexure-A-19) in January 1994, but nothing fruitful happened till the filing of this original application. Vide para 5 of the original application she has claimed that her application is within limitation prescribed under section 21 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the act). 3. The respondents filed reply wherein the claim of the applicant was contested inter alia on the ground of being barred by time. 4. It is also claimed that during the period w.4.1982 to 8.5.1985 the applicant worked intermittently as a leave substitute Clerk and on regular selection for the post of Peon, was appointed as such, Vide Annexure A-5. Her claim for regularisation as a Clerk has been denied. The question of limitation goes tot he root of the matter, therefore, the parties were heard on the question of limitation. Her claim for regularisation as a Clerk has been denied. The question of limitation goes tot he root of the matter, therefore, the parties were heard on the question of limitation. 5.It was contended by the learned Additional Advocate General that the applicant was initially appointed as a leave substitute for a few intervals and on being sponsored by the Employment Exchange was selected and appointed to a Cass-1V Peon i.e. Peon/Chowkidar vide Annexure A-9. This appointment the applicant accepted in the year 1985. The applicant did not file any claim within one year of the cause of action, therefore, the present original application is hopelessly time barred. 6. On the other hand, it was contended by the learned counsel for the applicant that the appellant had a continuing cause of action and in any case she made a representation Annexure A-19 to the respondents for regularizing her services as a Clerk in January 1994 which were never disposed of by the respondents and the present original application has been filed when the said representation was not decided, therefore, the present original application is within the period of limitation. 7. Be it stated at the very outset that the application has not set out any reason para 5 of her original application to explain as to how her original application is within limitation nor has filed an application for condonation of delay in filing the present original application, therefore, the answer to the question whether the present original application is barred by time or is within limitation depends on the answer to the question whether the appellant has a continuing cause of action to claim regulation as a Clerk from 1.4.1982 or 8.5.1985 or whether in view of her representation Annexure A-19 the present original application is within limitation. 8. The administrative Tribunals Act is a self contained statute and provides limitation for making original application vide section 21 which reads as follows. "21. 8. The administrative Tribunals Act is a self contained statute and provides limitation for making original application vide section 21 which 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 the 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, which ever period expires later. (3) Notwithstanding anything contained in sub-section(i) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) or 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. It is clear from the above provisions that an original applciat98n has to be filed by the aggrieved employee within one year of the passing of the final order within the meaning of Section 20 of the act. It is clear from the above provisions that an original applciat98n has to be filed by the aggrieved employee within one year of the passing of the final order within the meaning of Section 20 of the act. In case any order is appeallable or a representation lies against such order the time would run against the employee from the date on which such appeal or representation had been finally disposed of and in case no final orders are passed on such appeal or representation, within six months the employee an prefer an application under section 19 of the act, within one year form the expiry of six months from the date of filing of the appeal or the representation. Such application can be admitted by the Tribunal after expiry of the aforesaid prescribed period only if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 10. In "Secretary to Govt. Of India and others Vrs. Shivram Mathadu Gaikawad, 1995 Supp. (3) Supreme Court Cases 231" wherein the Honble Supreme Court held as under. - "2. The learned counsel or the Union of India raised a preliminary contention, namely, that the application was filed almost after about four years from the date of discharge and, therefore, it was clearly barred by Section 21 of the Administrative Tribunals Act, 1985. He pointed out that this question weas (sic- was) squarely raised in the counter filed in answer to the respondents application in the following terms: "These respondents state that the applicant herein is challenging the order dated 7.10.1986 discharging him from the service and has filed this application on 14.9.1990, as such this application is barred by the provisions of Limitation under section 21 of the Central Administrative Tribunals Act, 1985." When we turn to the judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7.10.1986 and the application was filed in 1990, it was clearly barred by limitation unless an application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under sub-section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality on an application under Section 21(3) if the Tribunal had dealt with the question pf limitation in the context of Section 21 we may have refrain from interfering with the order of the Tribunal under Article 136, but it seems that the Tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation. It is also difficult to understand how the Tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section 21 of the Administrative Tribunals Act, it deserves to be dismissed." 11. In Ramesh Chand Sharma Vrs. Udham Singh Kamal and others, (1999) 8 Supreme Court Cases 304, the Honble Apex Court while dealing with the question of limitation held as under- "On a perusal of the materials on record and after haring counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this stage. In our opinion, the OA filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is not settled (see Secy. To Govt. of India Vs. Shivram Mahadu Gaikwad)." 12. In the case in hand the applicant claims regularisation of her services as a Clerk w. e. f. 1.4.1992 and in the alternative from 8.5.1985. The law in this behalf is not settled (see Secy. To Govt. of India Vs. Shivram Mahadu Gaikwad)." 12. In the case in hand the applicant claims regularisation of her services as a Clerk w. e. f. 1.4.1992 and in the alternative from 8.5.1985. Therefore, the cause of action had accrued to the application to claim regularisation on May 8, 1985 when she was offered appointment as a Peon and was not regularised as a Clerk. The applicant evidently has no continuing cause of action. The present original application has been filed after a lapse of more than 10 years from the date of the accrual of the cause of action. 13. The contention that the applicant has preferred representation Annexure A-19 to respondent No.2 in January 1994 which has not been decided by respondent No.2, therefore, the original application is within limitation, is without any merit and substance. 14. The plea of the applicant that she made representation Annexure A-19 does not seem to be correct. As per the averments made in Sub para 5 of Para 6 of the original application, the applicant made this representation in January 1994. However, Annexure A-19 does not bear any date. In one corner at the foot of Annexure A-19 "September" is mentioned. Neither the date nor the year has been specified. The respondents in their reply affidavit have specifically denied having received any such representation from the applicant and this averment has been made in the reply after getting a report from the concerned diary branch vide which no such representation was found having ever been received in the office of respondent No.2.There is no reason to dis-believe their averments made on the basis of contemporaneous record more so when the alleged representation Annexure A-19 mentions the months of "September" at the space where ordinarily the date of preparing and signing a document is mentioned where as the case of the applicant is that she made such representation in January 1994. Theretofore, this document appears to have been fabricated with a view to mis-lead the Tribunal on the question of limitation. Theretofore, this document appears to have been fabricated with a view to mis-lead the Tribunal on the question of limitation. In any case, assuming that such a representation as alleged was made in January 1994, the applicant, for the purpose of limitation for filing the original application could have waited for decision on her representation till July 1994 and then ought to have filed the original application within one year i.e. within a total period of one and a half years from the date of her making the representation. The original application has been filed on September 6,1995 i.e much after the expiry of one and a half years of the making of the alleged representation. Therefore, the original application is apparently barred by time. Moreover, this representation has been filed after more than 8 and a half years of the accrual of cause of action in favour of the applicant. By making such a belated representation the applicant cannot get the period of limitation extended within the scope of provisions of Section 21 (1)(b) of the Act. Where an aggrieved servant has allowed his remedy to become time bared, he cannot be permitted to get fresh lease of life merely by filing a belated representation or time barred appeal. The casual representation or representations not provided in the service rules cannot have the effect of extending the period of limitation. 15. It may be pointed out that we have already observed hereinabove that the plea of having filed a representation to respondent No.2 as taken by the applicant is factually incorrect and appears to have been taken simply to mis-lead of Tribunal on the question of limitation. Such an attempt on the part of a litigant deserves to be dealt with strictly. However, instead of taking some strict action we feel that it will meet the ends of justice if adequate costs are awarded against the applicant. In view of the above, we are of the considered view that the present original application is hopelessly time barred and is accordingly dismissed with costs quantified in the sum of Rs.3000/- to be paid by the applicant to the respondents within 45 days of the passing of this order, failing which the respondents to take appropriate steps for realisation of the costs.