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2009 DIGILAW 606 (ORI)

SRIKANTA SENAPATI v. STATE OF ORISSA

2009-08-05

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : L. Mohapatra, J. - The Petitioner in this writ application assails the order of the Orissa Administrative Tribunal, Bhubaneswar dated 4.9.1998 passed in O.A. No. 224 of 1990 dismissing the same. 2. The case of the Petitioner before the Tribunal was that he was appointed as a Driver in the District Welfare office by orders of the Collector, Balasore on 15.7.1965 on being sponsored by the local Employment Exchange. He was placed under suspension vide order dated 22.1.1971 and while continuing under suspension, his service was terminated on 25.6.1971. At the relevant time he was involved in a series of criminal cases and was acquitted in all the cases except one, i.e., G.R. Case No. 1004 of 1971. He having been convicted in the said case, preferred Criminal Appeal No. 38/172 of 1983 and the appeal was allowed acquitting him of the charge on 19.11.1984. After being acquitted in all the criminal cases, he submitted a representation on 22.4.1987 to the Collector, Balasore for his reinstatement in service. There being no communication from the side of the Collector, he preferred an appeal before the R.D.C., Central Division, Cuttack and the appeal was rejected on 23.12.1989. Thereafter he approached the Tribunal in the aforesaid Original Application praying for all service benefits retrospectively w.e.f. 22.1.1971 till the date of reinstatement. 3. A counter affidavit was filed by the O. Ps. before the Tribunal stating therein that the Petitioner had been placed under suspension by the Collector, Balasore for using the official jeep in the mid-night of 20.1.1971 without any authority in a burglary case in the G.P. office, Balasore. The Superintendent of Police, Balasore intimated about the involvement of the Applicant in six more criminal cases. In view of the above, the appointment of the Petitioner being on temporary basis, it was terminated while he was under suspension. The Tribunal in the impugned judgment held that the order of termination had been passed in contravention of Article 311(2) of the Constitution of India but dismissed the Original Application on the ground of limitation. 4. Shri Aswini Kumar Mishra, the learned Senior Counsel appearing for the Petitioner assailed the impugned judgment on the ground that the Original Application had been filed within the prescribed period of limitation and therefore, could not have been dismissed on the ground of limitation. 4. Shri Aswini Kumar Mishra, the learned Senior Counsel appearing for the Petitioner assailed the impugned judgment on the ground that the Original Application had been filed within the prescribed period of limitation and therefore, could not have been dismissed on the ground of limitation. Reliance was placed on the order of rejection of the appeal in Annexure-6. According to the learned Senior Counsel Shri Mishra, the appeal of the Petitioner having been rejected by the R.D.C. and communicated to the Petitioner by the Establishment Officer in his letter dated 23.12.1989, the Original Application filed in the year 1990 was well within the period of limitation and the Tribunal was not justified in dismissing the Original Application solely on the ground of limitation. Learned Counsel for the State in support of the impugned judgment submitted that the Petitioner's service was terminated on 25.6.1971 and nothing prevented him for filing any appeal against the said termination order. The criminal cases have no bearing with the order of termination and for the first time he preferred an appeal to the R.D.C, Central Division on 13.5.1988 which was rejected on 23.12.1989. Mere rejection of the appeal does not give rise a fresh cause of action for filing an Original Application challenging the order of termination after lapse of almost 18 years. 5. Undisputedly the Petitioner had been appointed as a Driver by the orders of the Collector on temporary basis on condition that such appointment may be terminated at any time without assigning any reason there for. Undisputedly the Petitioner was put under suspension for his misconduct and ultimately for his involvement in several criminal cases, his service was terminated on 25.6.1971. From 1971 till 22.4.1987 he did not take any step challenging the order of termination. According to the Petitioner after he was acquitted in all the criminal cases by November 1984, he submitted a representation on 22.4.1987 for reinstatement. No reason has been assigned by the Petitioner as to why there was. delay of around two and half years in submitting such a representation. Learned Counsel for the Petitioner relied on a decision of the apex Court in the case of S.S. Rathore Vs. State of Madhya Pradesh. No reason has been assigned by the Petitioner as to why there was. delay of around two and half years in submitting such a representation. Learned Counsel for the Petitioner relied on a decision of the apex Court in the case of S.S. Rathore Vs. State of Madhya Pradesh. In the aforesaid reported case, referring to Section 14 and 21 of the Administrative Tribunals Act, 1985 as well as Article 58 of the Limitation Act, 1963, the Court held that in the case of a service dispute the cause of action must 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 arisen. Relying on the decision, it was further contended that the appeal of the Petitioner having been rejected by the R.D.C., Central Division on 23.12.1989, the Original Application had been filed within the period of limitation. In this connection, reference may also be made to a decision of the apex Court in the case of C. Jacob Vs. Director of Geology and Mining Indus. Est. and Another. In the said reported case 18 years after termination from service, the Petitioner therein made a representation with a claim that he should be taken back to service. The said representation was rejected and he filed a writ application claiming service benefits by referring the order of rejection as the cause of action. Under these circumstances the apex Court held that examining the claim of the Petitioner therein as if it was live claim and setting aside order of termination of service-is illegal. Here is a case where admittedly the Petitioner's service was terminated on 22.1.1971 and he did not take any steps challenging the order of termination till 22.4.1987 when he first made a representation. 6. We are, therefore, of the view that the ratio laid down in the case of C. Jacob v. Director of Geology & Mining and Anr. (supra) has full application to the facts of this case. 6. We are, therefore, of the view that the ratio laid down in the case of C. Jacob v. Director of Geology & Mining and Anr. (supra) has full application to the facts of this case. The Tribunal having rejected the Original Application on the ground of limitation, we find no infirmity in the same for the reasons stated above and accordingly dismiss the writ application. Final Result : Dismissed