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2018 DIGILAW 348 (ALL)

UNION OF INDIA v. BITOLA DEVI

2018-02-08

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT Hon’ble Saral Srivastava, J.—Heard Sri A.K. Gaur, learned counsel for the petitioner and Sri Amardeo Singh, learned counsel for the respondent No. 1. 2. The petitioner Union of India has preferred the present writ petition challenging the order dated 22.5.2015 passed by the Central Administrative Tribunal, Allahabad, whereby the Tribunal has set-aside the order of removal of the husband of the respondent No. 1 Smt. Bitola Devi, and order dated 20/29.5.1997 dismissing appeal against removal order, and had granted terminal benefits and family pension to the respondent No. 1. 3. The brief facts of the case are that one Jagdish Prasad (husband of the respondent No. 1 Smt. Bitola Devi), while posted on the post of Fire man -II at Varanasi, was issued a charge-sheet dated 6.4.1993 for unauthorized absence from duty from 19.2.1992 to 24.2.1993. 4. Jagdish Prasad submitted reply to the charge-sheet and after submission of reply; the Inquiry Officer conducted the inquiry, and found the charge of unauthorized absence proved against Jagdish Prasad. The Inquiry Officer submitted the enquiry report to the disciplinary authority, who in turn passed an order dated 24/28.6.1993 imposing punishment of removal from service. 5. Jagdish Prasad preferred a departmental appeal against punishment order. The Appellate Authority vide order dated 20/29.5.1997 dismissed the appeal on the ground that the appeal was barred by time, and further, the reason given by the delinquent employee for his absence from duty was not sufficient. Jagdish Prasad preferred a revision petition before the Divisional Railway Manager, North Eastern Railway, Varanasi on 23.8.1997. 6. It transpires that when the revision petition of Jagdish Prasad was not decided by the competent authority, he preferred the Original Application No. 1510 of 2004 praying that a direction be issued to the respondents to decide the revision dated 28.8.1997 of the applicant filed against the order of removal from service. The Original Application No. 1510 of 2004 was dismissed in default. 7. In the mean time, Jagdish Prasad died on 19.12.2009. The respondent No. 1 (Smt. Bitola Devi) being wife of Late Jagdish Prasad submitted a representation claiming terminal benefits. The Original Application No. 1510 of 2004 was dismissed in default. 7. In the mean time, Jagdish Prasad died on 19.12.2009. The respondent No. 1 (Smt. Bitola Devi) being wife of Late Jagdish Prasad submitted a representation claiming terminal benefits. The representation of the respondent No. 1 was replied by the Divisional Personnel Officer, North Eastern Railway, Varanasi by letter dated 18.4.2012 informing that Jagdish Prasad was removed from service by the order dated 24.6.1993 of the competent authority, and therefore, family pension and other terminal benefits are not payable to the respondent No. 1. 8. In the aforesaid background, the respondent No. 1 instituted the Original Application No. 927 of 2012 praying for setting-aside the order dated 18.4.2012, 24/28.6.1993 and 20/29.5.1993. The respondent No. 1 pleaded that the order of removal against Jagdish Prasad was illegal, inasmuch as, he was not afforded any opportunity of hearing nor any date was fixed by the Inquiry Officer for holding the enquiry; and the Inquiry Officer without following the procedure for conducting the inquiry as provided in law had submitted ex parte enquiry report. Thus, the disciplinary proceeding was ex parte and was in violation of the principles of natural justice. It was further pleaded that the Appellate Authority had erred in law in rejecting the appeal of Jagdish Prasad being barred by time; and further respondent No. 2 had acted illegally in not deciding the revision of the husband of the respondent No. 1. 9. The original application was contested by the petitioner by filing counter-affidavit contending therein that the Original Application was highly barred by time, inasmuch as, the order of removal was passed in the year 1993, and the order rejecting the appeal of the husband of the respondent No. 1 was passed in the year 1997. It was further pleaded that the inquiry was conducted after giving full opportunity of hearing to Late Jagdish Prasad. The enquiry Officer after concluding the inquiry submitted the enquiry report to the disciplinary authority, wherein all the charges levelled against Late Jagdish Prasad was found proved. The disciplinary authority after considering the material on record imposed punishment of removal from the service vide order dated 28.6.1993. The petitioner further pleaded that though the appeal filed by Late Jagdish Prasad on 18.12.1996 was beyond time, yet the appellate authority after considering the other issues raised in the appeal confirmed the punishment order. 10. The disciplinary authority after considering the material on record imposed punishment of removal from the service vide order dated 28.6.1993. The petitioner further pleaded that though the appeal filed by Late Jagdish Prasad on 18.12.1996 was beyond time, yet the appellate authority after considering the other issues raised in the appeal confirmed the punishment order. 10. The Tribunal while allowing the Original Application on the issue of delay recorded a finding that since the respondent No. 1 was continuously agitating the matter regarding payment of dues accrued to her husband, which is recurring cause of action. Therefore, the objection of the petitioner with regard to delay in filing the Original Application was rejected. The Tribunal further held that the disciplinary proceedings was conducted in violation of the principles of natural justice, inasmuch as, proper opportunity of hearing was not afforded to the husband of the respondent No. 1. 11. Challenging the order of the Tribunal, learned counsel for the petitioner has submitted that the order of the removal was passed on 24/27.12.1993; and the order dismissing the appeal of the husband of the respondent No. 1 was passed on 20/29.5.1997; thereafter, the husband of respondent No. 1 preferred a revision petition on 23.8.1997 which was not decided. Thus, the cause of action for filing the original application would be counted from the date of expiry of six months from the date of filing of revision petition; and consequently the original application was barred by time in view of Section 21 of the Administrative Tribunals Act, 1985 and could not have been admitted and heard, unless the delay in filing the original application was condoned. He has placed reliance upon the judgment of Apex Court in the cases of Ramesh Chand Sharma v. Udham Singh Kamal, 2000 SCC (L&S) 53, S.S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 and E. Parmasivan and others v. Union Of India, JT 2002 (5) SC 367. 12. The counsel for the petitioner has further contended that the original application of the respondent No. 1 was barred by the principle of res judicata, inasmuch as, the husband of respondent No. 1 had preferred the Original Application No. 1510 of 2004 for the same cause of action. 13. 12. The counsel for the petitioner has further contended that the original application of the respondent No. 1 was barred by the principle of res judicata, inasmuch as, the husband of respondent No. 1 had preferred the Original Application No. 1510 of 2004 for the same cause of action. 13. He lastly contends that the tribunal without appreciating corrects facts and material on record has held that proper opportunity of hearing was not afforded to the husband of the respondent No. 1 to defend his case. 14. Per contra, the learned counsel for the respondent No. 1 has submitted that the respondent No. 1 for the first time came to know about the order of removal of her husband by order dated 18.4.2012 of the Divisional Personnel Officer, North Eastern Railway, Varanasi whereby her claim for family pension and other terminal benefits was rejected. He submits that the original application filed by respondent No. 1 was in time as non payment of family pension was recurring cause of action, and therefore, the Tribunal was right in rejecting the contention of the petitioner with regard to the delay in filing the original application. In this regard, the learned counsel for the respondent No. 1 has relied upon a Division Bench judgment of this Court in Writ A-No. 29600 of 2006 Union of India through G.M. N.C.R. and others v. Smt. Anupam Rani and another). 15. The learned counsel for the respondent No. 1 on the strength of a Railway Board Circular No. 115 of 2000 further contends that after the death of the charged employee, the disciplinary proceedings automatically comes to an end. In this regard, he has placed reliance upon a judgment of Tribunal dated 17th March, 2008 Annexure 3 to the counter-affidavit. Relying upon the said judgment, he submits that on the death of Jagdish Prasad not only the revision petition, but also the entire proceedings including the punishment and appellate order would stand terminated, and therefore, Jagdish Prasad should be treated to have died in service. He submits that the finding of the Tribunal that the disciplinary proceeding was in violation of principles of natural justice is based on the facts on record. 16. He submits that the finding of the Tribunal that the disciplinary proceeding was in violation of principles of natural justice is based on the facts on record. 16. Lastly, he submits that the original application was not barred by principles of res judicata, inasmuch as, husband of the respondent No. 1 prayed for a direction to the authorities to decide the revision petition dated 23.8.1997, whereas, the relief claimed in the original application was for quashing the order dated 18.4.2012. 17. We have heard the rival submission of the parties and perused the record. 18. With regard to the contention of the learned counsel for the petitioner that the original application was barred by limitation, it is necessary to have a glance at Section 20 and 21 of the Administrative Tribunals Act, 1985 [hereinafter referred as Act,1985], which are extracted herein under: “20. Applications 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-sections (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. (3) For the purposes of sub-sections (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 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, 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 (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.” 19. Section 20(1) of the Act, 1985 provides that the Tribunal shall not admit an application unless it is satisfied that the delinquent employee has availed remedies available to him under the relevant service rules with regard to redressal of his grievances. 20. Section 20 (2) of the Act of 1985, provides that 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 if a final order has been made by the competent authority rejecting any appeal or representation preferred by such person in connection with his grievance; and in case, where no final order has been passed by the competent authority 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. 21. Section 21 of the Act of 1985, provides that the limitation within which the original application has to be preferred by the employee. Section 21 (1) (b) provides that the Tribunal shall not admit an application where the appeal or representation made by the employee as mentioned in clause (b) of sub-section (2) of Section 20 and a period of six months had expired and no final order had been made within one year from the date of expiry of the said period of six months. 22. Thus, as per Section 21 (1) (b) of the Administrative Tribunals Act, 1985, the period of limitation would start after six months from the date of filing the appeal or representation in a case where the appeal or representation preferred by the employee has not been decided. 23. The Apex Court in the case of S.S. Rathore (Supra) has held that where no order has been passed on the statutory appeal or representation of the employee, six months period from the date of preferring of appeal or making all the representation shall be taken to be a date when cause of action shall be taken to have first arisen. Para 20 of the Apex Court judgment in the case of S.S. Rathore (Supra) is extracted herein below: “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 arisen. 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.” 24. The Apex Court in the case of Ramesh Chand Sharma (Supra) has held that in the absence of any application under sub-section (3) of Section 21 praying for condoning of delay, the Tribunal had no jurisdiction to admit and dispose of original application on merit. Para 7 of the judgment of the Apex Court in the case of Ramesh Chand Sharma (Supra) is extracted herein below: 7. On perusal of the materials on record and after hearing 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 late stage. In our opinion, the O.A. 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 now settled, see Secretary to Government of India and others v. Shivam Mahadu Gaik-wad. 25. Now, we would deal with the judgment in the case of Union of India through G.M. N.C.R. (Supra) relied upon by the learned counsel of the respondent. The law in this behalf is now settled, see Secretary to Government of India and others v. Shivam Mahadu Gaik-wad. 25. Now, we would deal with the judgment in the case of Union of India through G.M. N.C.R. (Supra) relied upon by the learned counsel of the respondent. We find that the said judgment is not applicable in the facts of the present case, inasmuch as, in the case of Union of India through G.M. N.C.R. (Supra), the applicant had pleaded that the original application was in time which was admitted by the respondent; and the issue of limitation was not raised before the Tribunal. Therefore, this Court held that once the issue of limitation was not raised before the Tribunal, and the respondents have admitted that the original application was in time, they cannot dispute the said fact in appeal or before the High Court. The High Court further held that the present case was non payment of family pension which was recurring cause of action, and no limitation is applicable in such matters. On these two counts, this Court rejected the contention of the petitioner in the said writ petition with regard to plea of limitation. Thus, the said judgment does not come in aid to the respondent No. 1. 26. So far as the reliance placed upon the Circular No. 115 of 2000 Railway Board, and the judgment of the Tribunal in Original Application No. 166 of 2007 Rama Singh v. Union of India and others in order to demonstrate that respondent No. 1 is entitled for pension; and non payment of pension is a recurring cause of action, and consequently, the original application was in time. We may record that the said contention is misconceived. 27. At this juncture, it would be useful to have a glance at Railway Board Circular No. 115 of 2000 dated 19.6.2000 which is extracted herein below: “The question whether the disciplinary case initiated against a Railway Servant under the Railway servants (Discipline and Appeal) Rules, 1968 could be closed in the event of death of the charged official during the pendency of the proceedings, has come up for consideration of this Ministry on quite a few occasions in the recent past. It is clarified that the disciplinary proceedings should be closed immediately on the death of the charged railway servant.” 28. It is clarified that the disciplinary proceedings should be closed immediately on the death of the charged railway servant.” 28. We have perused the judgment of the Tribunal in O. A. No. 166 of 2007. The tribunal relying upon the Railway Board Circular No. 115 of 2000 dated 19.6.2000 has held that revision under Rule 25 of the (Discipline and Appeal) Rules, 1968 (hereinafter referred as Rules,1968) will also be included in the expression ‘’disciplinary case’ or ‘’disciplinary proceeding’; and therefore on the death of the revisionist during the pendency of revision, not only the revision but the entire proceedings including the punishment order and appellate order would meet legal death. 29. We find that the tribunal has misread the circular of Railway Board Circular No. 115 of 2000 dated 19.6.2000 inasmuch as a perusal of aforesaid circular makes it manifestly clear that the disciplinary proceedings could be closed in the event of death of charged employee during the pendency of the disciplinary proceedings. The circular does not contemplate a situation that if an employee dies during the pendency of appeal or revision, the disciplinary proceeding would abate. 30. It appears that the object behind issuance of the Railway Board Circular No. 115 of 2000 dated 19.6.2000 is that the enquiry against the delinquent employee died during pendency of departmental enquiry cannot proceed ex parte; and he cannot be held guilty without being afforded proper opportunity of hearing. 31. Further, a close look at Rule 22(2) of the Rules,1968 dealing with consideration of appeal by the appellate authority and Rule 25 of the Rules,1968 dealing with revision makes it clear that power exercised by the appellate authority and revisional authority are different from the power exercised by disciplinary authority under the Rules, 1968. Thus, the order of the tribunal in O. A. No. 166 of 2007 is not based on correct interpretation of Railway Board Circular No. 115 of 2000 dated 19.6.2000. 32. Thus, the contention of the respondent No. 1 that since the revision petition of Jagdish Prasad was not decided and therefore, the entire proceedings including the termination or removal order as well as appellate order stand abated due to the death of employee is misconceived and is rejected. 33. In the instant case, Jagdish Prasad (husband of the respondent No. 1) was removed by order dated 24/28.6.1993, and his appeal was rejected by order dated 20/29.5.19997. 34. 33. In the instant case, Jagdish Prasad (husband of the respondent No. 1) was removed by order dated 24/28.6.1993, and his appeal was rejected by order dated 20/29.5.19997. 34. Admittedly the revision petition was filed by Late Jagdish Prasad on 23.8.1997 before the competent authority which was not decided. Therefore, the cause of action to institute original application arose immediately after expiry of six months from the date of filing of revision petition. Thus, the limitation for the purpose of filing the original application as provided under Section 21 of the Act would be counted from the date of expiry of six months from the date of filing of the Revision Petition. 35. In the instant case, the claim petition was filed in the year 2012, i.e., almost after about 14 years from the date of cause of action for filing the original application. The same was barred by time, and the Tribunal had no jurisdiction to entertain the original application without there being an application for condonation of delay, and an order allowing the delay condonation application was passed on the said application. 36. The Tribunal while recording the finding that the family pension etc. is a recurring cause of action and therefore, the original application was in time has overlooked the fact that the applicant could be entitled for family pension etc. only after the order of removal of the late Jagdish Prasad is set-aside. The tribuanl has completely ignored the provision of Section 21 of the Limitation Act, which restrains the Tribunal from admitting an original application unless the delay in filing the original application is condoned. 37. Thus, we hold that the original application was highly barred by time, and in the absence of any application for condoning the delay in filing the claim petition, the Tribunal had acted illegally in entertaining the claim petition. 38. Since, we have held that the original application was barred by time, and the Tribunal had no jurisdiction to entertain the claim petition, therefore, we do not deem it necessary to deal with other contentions of the petitioner for challenging the order of the Tribunal. 39. Thus, the order of the Tribunal dt.22.5.2015 is set-aside. The writ petition succeeds and is allowed. There shall be no order as to costs.