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Allahabad High Court · body

2010 DIGILAW 2441 (ALL)

ABHILAKH CHAUDHARI v. UNION OF INDIA

2010-08-11

ASHOK BHUSHAN, VIRENDRA KUMAR DIXIT

body2010
JUDGMENT By the Court.—Supplementary affidavit filed today is taken on record. 2. Heard Sri Indra Raj Singh, learned counsel for the petitioner and learned Standing counsel. 3. By this writ petition, the petitioner has prayed for quashing the judgment and order dated 8.8.2000 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad by which O.A. No. 1670 of 1992 has been dismissed as barred by time. 4. Brief facts of the case are that the petitioner who was working as a Fitter in the Eastern Railway, was proceeded with the departmentally and punishment order dated 10.11.1987 was passed after regular departmental proceedings removing him from services. Thereafter an appeal was filed which was rejected by the appellate authority on 13.9.1988. However, the punishment of removal was modified to compulsory retirement and the petitioner filed a review petition on 21.10.1988 before the Chief Bridge Engineer, the eastern railway which was not disposed of, hence he filed O.A. No. 1670 of 1992 on 17.11.1992 before the Tribunal. 5. The petitioner’s case is that the O.A. was admitted and after exchange of pleadings the Tribunal has passed the order dismissing the O.A. as time barred. Sri I.R. Singh, learned counsel for the petitioner challenging the order contended that the Review Application having not been decided the O.A. was within time. He further submits that in any event under Section 21 Sub Section 3 the Tribunal had jurisdiction to condone the delay in filing the O.A. and he further submits that after O.A. having been admitted by Tribunal the same could not have been dismissed on the ground of time barred after 8 years. 6. We have considered the submissions of the learned counsel for the parties and have perused the record. 7. Sections 20 and 21 of the Administrative Tribunal Act, 1985 are relevant for the present case which are quoted as below : Section 20. Application not to be admitted unless other remedies exhausted.—(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. Application not to be admitted unless other remedies exhausted.—(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. (2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,— (a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or (b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired. (3) For the purposes of sub-section (1) and (2) any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. 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 exerciseable 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 (a) 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 (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 8. The provision of Limitation is provided and prescribed under Section 21, the present case was covered by Section 21 Sub Section (1) (b) where review was filed and a period of six months has expired. In a Section 21 (1) (b) after expiry of the six months period the application is to be filed within one year from the date of expiry of the said period of six months. In the present case the review was filed on 21.10.1988 the six months period would have expired on 20.4.1989, the one year period shall also expire on 20.4.1990 which was period of Limitation under which the O.A. was to be filed. Admittedly O.A. was filed in November, 1990, thus it was clearly barred by time according to Section 21 (1) (b). Admittedly O.A. was filed in November, 1990, thus it was clearly barred by time according to Section 21 (1) (b). Learned counsel for the petitioner next contended that the Tribunal had jurisdiction to condone the delay in Section 21 Sub Section 3, the petitioner has brought on record the copy of O.A. as annexure-1 to the supplementary affidavit in para 3 of the O.A. deals with limitation which is to the following effect : “The applicant further declares that the application is within the limitation period as prescribed under Section 21 of the Act No. 13 of the Central Administrative Tribunal, 1985, as the cause of action arose firstly on 21.10.1988 when the applicant filed his review before the respondent No. 2 and thereafter when the review was not decided by the respondent No. 2 subsequently the applicant sent several reminders firstly on 7.8.1990 and lastly on 22nd February, 1992.” 9. A bare perusal of the averment in para 3 of the O.A. indicates that the petitioner’s case was that the O.A. is within time. The petitioner having not admitted that the O.A. is beyond time there was no occasion to give any explanation for condonation of delay. The Tribunal cannot be said to have committed any error in not exercising the jurisdiction under Section 21 Sub Section 3, the present case is not a case where the condonation of delay was sought. The petitioner’s case further is that the O.A. having been admitted it could not have been dismissed as barred by time. Learned counsel for the petitioner has placed reliance on the para 9 of the judgment of Hon’ble the Apex Court in N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 . 10. In the said case the Court was considering the sufficient cause within the meaning of Section 5 of the Limitation Act. The Court after considering the cause in the said case came to the conclusion that the delay was caused due to failure of Advocate to inform the appellant as well as his failure to take action. The said case was on facts of the case where the Court found cause sufficient which is clearly distinguishable from the present case. The Court after considering the cause in the said case came to the conclusion that the delay was caused due to failure of Advocate to inform the appellant as well as his failure to take action. The said case was on facts of the case where the Court found cause sufficient which is clearly distinguishable from the present case. The fact that O.A. was admitted leads to the conclusion that the Court was prima facie satisfied that there are substantial issues for consideration, but admission of O.A. does not mean that the question of Limitation was over ruled when there is no express order of the Tribunal in that regard. Mere fact that O.A. has been admitted, shall not preclude the Court to consider the questions of limitations or other questions which goes to the root of the matter. Mere fact that O.A. was admitted, does not preclude the consideration of the questions of Limitation and the Tribunal being satisfied that the O.A. was barred by time, it was an obligation of the Tribunal to reject the application. 11. In view of the above, we do not find any error in the impugned order dated 8.8.2000, the writ petition is therefore dismissed. —————