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Allahabad High Court · body

2019 DIGILAW 32 (ALL)

Adya Singh v. State of U. P.

2019-01-04

PANKAJ MITHAL, ROHIT RANJAN AGARWAL

body2019
JUDGMENT : 1. Heard Sri Manish Kumar Pandey, learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has preferred a claim petition under Section 4 of the U.P. Public Services (Tribunal) Act, 1976 (in short Tribunal Act) challenging the orders dated 7.7.2010 and 13.12.2010 by which punishment of deduction of pay equivalent to one month salary was awarded and appeal arising there from was dismissed. 3. The claim petition of the petitioner remained pending from 2010 till 2017 when the petitioner got the said claim petition dismissed as withdrawn vide order dated 24.7.2017. The tribunal in allowing the application for withdrawal of the claim petition observed that the claim petition is dismissed as withdrawn and the petitioner is permitted to file a fresh petition, if the law permits. Thereafter, petitioner preferred another claim petition in the year 2017. The said claim petition has been dismissed as barred by limitation by the impugned order dated 12.7.2018. The tribunal in dismissing the claim petition observed that in view of Section 5 of the Tribunal Act the period of limitation for making a claim/reference is one year and since the petitioner is challenging the orders dated 7.7.2010 and 13.12.2010, the claim petition as presented in the year 2017 is apparently barred by time by more than six years. 4. It may be noted that by virtue of Section 5 of the Tribunal Act the provisions of Limitation Act, 1973 (in short Limitation Act) apply to the proceedings under the Tribunal Act and that the claim/reference under Section 4 of the said Act is to be treated as a suit filed in the civil court. 5. The relevant part of Section 5 (i) (b) of the U.P. Public Services Tribunal Act, 1976 is reproduced herein below:- 5. Powers and procedure of the Tribunal:- (1) "(a) ................ Provided........... (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 where 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)................." 6. The Limitation Act, 1963 vide Section 5 provides for extension of prescribed period of limitation in certain cases. Its relevant part reads as under:- 5. The Limitation Act, 1963 vide Section 5 provides for extension of prescribed period of limitation in certain cases. Its relevant part reads as under:- 5. Extension of prescribed period in certain cases:- "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 cause for not preferring the appeal or making the application within such period." 7. A combined reading of both the above provisions would reveal that though Section 5 of the Limitation Act has been made applicable to proceedings for reference under Section 4 of the Tribunal Act, the same is not applicable for extending the time prescribed for filing a suit. The reference under Section 4 of the Act has been recognized as a civil suit. 8. Therefore, by necessary implication Section 5 of the Limitation Act would not come into play for condoning the delay in filing a reference. 9. In addition to the above, the High Court had dismissed the earlier claim/reference of the petitioner with liberty to him to file another claim petition, if law permits. The law in view of limitation provided under Section 5 of the Tribunal Act does not permit filing of any claim/reference after one year from the date on which the cause of action arises. 10. Accordingly, the permission so granted in dismissing the earlier claim petition as withdrawn also do not save the limitation. 11. In view of the above, we do not find any merit in this petition and the same is dismissed. It will however be open for the petitioner to apply for recall of the order dated 24.7.2017 and to pursue the earlier claim petition, if so advised, in law.