KARAN KUMAR YADAV v. U P STATE PUBLIC SERVICES TRIBUNAL AND
2007-11-20
PRADEEP KANT, RAJIV SHARMA
body2007
DigiLaw.ai
PRADEEP KANT AND RAJIV SHARMA, JJ. This petition challenges the order passed by the State Public Services Tribunal, dated 6th August, 2007 by means of which the claim petition preferred by the petitioner has been dismissed as barred by limitation. Leaving chequered history of the case it would be relevant to mention that the petitioner had applied for being appointed as Manager-cum-Clerk/vyasthapak in pursuance of the advertisement published in the year 1984. The petitioner in his application has mentioned that he had appeared in the examination of Diploma in Tourism and Hotel Management of which result has not been declared but at the same time he has also mentioned that he has passed the examination. 2. The petitioner who, was earlier working as daily wage employee, was issued appointment order on 1. 1. 1985 and was also sent for training. Since the petitioner was not possessed with Diploma in Tourism and Hotel Management from any recognized institution, as per the terms of the advertisement, he was given an opportunity to produce the same. Though the petitioner in his joining letter dated 1. 1. 1995 has mentioned about the annexing of Diploma Certificate but later on in response to the letter dated 15. 10. 1985 the petitioner in his letter dated 17. 10. 1985, has mentioned that till date he has not received any Diploma even the Admit Card of Raj as than University was not filed. 3. The services of the petitioner were terminated vide order dated 9th December, 1985 after finding that though the petitioner had appeared in the examination of Diploma course in the year 1982-1983 but he did not give any evidence to show that he has passed the said examination and therefore, he was required by the office order dated 15. 10. 1985 to produce the necessary certificate/diploma which the petitioner failed to produce and in his application dated 17. 10. 1985 the facts mentioned clearly reveal that he has not passed the examination till date. He had obtained the appointment by mis-statement of fact and by concealing true facts. It was against this order, firstly a writ petition was filed by the petitioner, which was dismissed on the ground of availability of the alternative remedy to approach before the State Public Services Tribunal vide order dated 22. 1. 1986 thereafter the petitioner approached the Tribunal in July. 1993. 4.
It was against this order, firstly a writ petition was filed by the petitioner, which was dismissed on the ground of availability of the alternative remedy to approach before the State Public Services Tribunal vide order dated 22. 1. 1986 thereafter the petitioner approached the Tribunal in July. 1993. 4. Initially the claim petition was allowed in the absence of counter-affidavit filed by. the State, by virtue of an ex parte order which was set aside vide order dated 9. 2. 2005, passed in Writ Petition No. 5424 (S/b) of 1996, remanding the matter to the Tribunal for deciding it afresh, after giving a clear finding on the point of limitation. The Tribunal found that the claim petition was barred by limitation and therefore, rejected the claim petition filed by the petitioner, vide its order dated 6. 8. 2007. 5. The High Court while remanding the matter vide its order dated 9. 2. 2005 specifically directed that the claim petition shall be decided after giving a clear finding on the question of limitation. It was in pursuance of the directive aforesaid, the claim petition has been found to be barred by limitation, and has been rejected by the Tribunal. 6. The petitioner does not dispute that the termination order was issued on 9th December, 1985 and that he was served with the order of termination and was having knowledge of the same. He however, says that he did make certain representations to the Chief Minister and to the Estate Officer, which remained pending, and that in the year 1990 he was informed by the local officers, that the matter has been forwarded to the higher authority. The petitioner again made representation in the year 1991-1992 to the Estate Officer and thereafter he approached the Tribunal. Argument is that since the representations were not decided, which he was continuously making since 1986 to 1992, therefore, the petition cannot be said to be barred by limitation. 7. The alternative argument is that the petitioner has moved application for condonation of delay under Section 5 of the Limitation Act and therefore, under Rule 8 sub-rule (4) of U. P. Public Services Tribunal (Procedure) Rules, 1992, (hereinafter referred to as the Rules, 1992), the Tribunal was having full jurisdiction to condone the delay in entertaining the claim petition and the view expressed by the Tribunal otherwise is per se illegal. 8.
8. At the outset it may be stated that, once the petitioner had approached the High Court straightaway in the Writ Petition No. 480 of 1986 and the writ petition having been dismissed on the ground of alternative remedy vide order dated 22. 1. 1986, there was no occasion for the petitioner to make any further representation if at all any representation had actually been given to the Estate Officer or any other Officer. The petitioner had made representations prior to approaching this Court in writ jurisdiction and the writ petition was dismissed on the ground of alternative remedy vide order dated 22,1. 1986, even then the petitioner did not choose to approach the Tribunal and sat tight over the matter for not less than seven years. This conduct of the petitioner remains unexplained. There was neither any statutory requirement nor there was any procedural necessity to make any further representation after dismissal of the writ petition aforesaid and to wait for indefinite period which was not less than seven years in this case. This sole ground was sufficient to dismiss the claim petition on the ground of limitation but the Tribunal has entered into other questions also and therefore, we consider the pleas raised accordingly. 9. The argument of the learned counsel for the petitioner Sri Shyam Mohan that in view of Rule 8 sub-rule (4) of the aforesaid Rules, 1992, the application under Section 5 of Limitation Act could not be rejected on the ground that the provisions aforesaid are not applicable in the matter of claim petition, appears to be primarily based on assumption and that the Rules do prescribe not only the procedure but also substantive provisions of applicability of Section 5 of the Limitation Act in the matter of claim petition also. If this interpretation is given it would mean that the Rules do prescribe a provision namely applicability of Section 5 to the claim petition contrary to the provisions of substantive Act and also that of Indian Limitation Act. However, the aforesaid Rule does not say anywhere that the Indian Limitation Act would apply, particularly Section 5 in the matter of claim petition, but it only says that where the petitioner seeks condonation of delay he shall file a separate application supported by an affidavit, for condoning the delay.
However, the aforesaid Rule does not say anywhere that the Indian Limitation Act would apply, particularly Section 5 in the matter of claim petition, but it only says that where the petitioner seeks condonation of delay he shall file a separate application supported by an affidavit, for condoning the delay. The Rule speaks about the contents of the petition, which does not necessarily mean that it gives any right to the claimant to file an application for condonation of delay while preferring the claim petition or it gives any authority to the Tribunal to condone the delay in filing the claim petition, if otherwise, there is a specific bar or the provisions of the Limitation Act do not permit to do so. 10. The Tribunal has considered the aforesaid sub-rule (4) of Rule 8 of the Rules, 1992 and has observed that the aforesaid Rule does not apply in the claim petition because a petition under Section 4 of the U. P. Public Services (Tribunal) Act, 1976 (hereinafter referred to as the Act, 1976) is just like a suit to which the provisions of Section 5 of the Limitation Act do not apply. Rule 8 (4) of the Rules, 1992 apply only to the proceedings/applications and the miscellaneous proceedings arising out of the order passed in proceedings under Section 4 of the Act. It applies to the miscellaneous applications moved during pendency of the claim petition. 11. Section 5 (1) (b) of the U. P. Public Services (Tribunal) Act, 1976 reads as follows: " 5 (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. " 12.
" 12. 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 Tribunals Act, specifically provide limitation for filing the claim petition, i. e. , one year and in sub-clause (iij the manner in which the period of limitation is to be computed has also been provided. 13. Section 5 of the Limitation Act, reads as under: " Extension of prescribed period in certain case.-Any appeal or any application, other than an application 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 judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section. ". 14. 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 co. urt in 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. 15. 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.
15. 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. The Tribunal will cease to have any jurisdiction to entertain any claim petition which is barred by limitation which limitation is to be computed in accordance with the provisions of the Tribunals Act itself and the rules framed thereunder. 16. Learned counsel for the petitioner says that since the petitioner has acquired Diploma afterward, therefore, this termination order may not come in way of his future appointment. Since the petitioners services have been terminated by not passing an order of dismissal from service he will be guided only by the principle which is applicable in the matter of simple termination of a temporary Government servant. For the aforesaid reasons the petition is dismissed. .