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2007 DIGILAW 247 (CAL)

PARESH NATH BANERJEE v. STATE OF WEST BENGAL

2007-04-02

PINAKI CHANDRA GHOSE, S.S.NIJJAR

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( 1 ) THE appellant remained absent from duty from 1984. Thereafter, in the year 2001 he filed an Original Application before the West Bengal administrative Tribunal. The said Original Application was dismissed with the observation that whether the applicant remained absent or not, the fact remained that he did not seek any redressal from any Court of law for a good long period of seventeen years. The Original Application has been dismissed by the Tribunal as being barred by delay and laches. ( 2 ) COUNSEL for the petitioner submits that in the facts and circumstances of this case, the Tribunal ought not to have dismissed the matter only on the ground of delay and laches. In support of his submission the learned Counsel relies on a judgment of the Supreme Court in the case of Haryana State Electricity Board v. The State of Punjab and Haryana, reported in AIR 1974 SC 1806 . ( 3 ) WE are unable to accept the submission made by the learned counsel. The petitioner admittedly remained absent without any sanctioned leave since 1984. There was no plausible explanation rendered for the delay caused in filing the original application in the year 2001. The judgment cited by the learned Counsel for the petitioner pertains to the proceedings under Article 226 of the Constitution of India. Powers of the high Court to issue appropriate writs, orders or direction under Articles 226/227 of the Constitution of India are not subject to the provisions of the Limitation Act. Even then the High Court has the discretion to reject a writ petition on the ground of delay and laches. We may notice here the observations of the Supreme Court in the case P. S. Sadasivaswamy v. State of Tamil. Nadu, reported in AIR 1974 SC 2271 where it has been observed as follows: - "a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in the matter after the passage of a certain length of time. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in the matter after the passage of a certain length of time. But, it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal". ( 4 ) THE claim of the petitioner in the present appeal has to be considered on the basis of the provisions of the Central Administrative tribunal Act which clearly lays down the period of limitation in which the application has to be moved before a Bench of the Central Administrative tribunal. ( 5 ) SECTION 21 of the Administrative Tribunals Act, 1985 provides that in a case where a final order, such as is mentioned in Clause (a) of subsection (2) of Section 2 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, a Tribunal shall not admit an application. In the present case the Tribunal had to exercise its jurisdiction where the limitation has been prescribed in Section 21 of the said Act. The aforesaid section provides that the application shall not be maintainable in case it is not filed within the period of one year from the date of passing of the impugned order. The law with regard to delay and laches in service matters has been clearly laid down by the Supreme Court in the case of S. S. Rathore v. State of M. P. , reported in AIR 1990 SC 10 . The law with regard to delay and laches in service matters has been clearly laid down by the Supreme Court in the case of S. S. Rathore v. State of M. P. , reported in AIR 1990 SC 10 . It has been held that repeated representation would not have the effect of extending the period of limitation. We may reproduce here the relevant observations of the Supreme Court: - "we are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arises. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle". ( 6 ) IT is appropriate to notice the provision regarding limitation under section 21 of the Administrative Tribunals Act sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3 ). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned. Article 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58. ( 7 ) IT is proper that the position in such cases should be uniform. Therefore, in every such case until the appeal or representation provided by a law is disposed of, accrual of cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of establishment shall not be taken into consideration in the matter of fixing limitation. ( 8 ) WE are of the opinion that the writ petition itself does not raise any substantial question of law. The writ petition is accordingly dismissed.