Hon'ble Saurabh Lavania,J.
(Delivered by Hon'ble Saurabh Lavania,J.) Heard Sri Santosh Kr. Yadav "Warsi" learned counsel for the petitioners as well as Sri Devendra Pratap Singh, learned counsel for the respondent No. 2.
The petitioners have challenged the order of the Tribunal passed in Claim Petition No. 93/F/I/91 (Ram Saran Vs. State of U.P. and others) dated 29.10.1996 whereby the Tribunal has allowed the Claim Petition filed by the respondent No. 2.
The Claim Petition was filed in the year 1991 against the alleged Suspension Order dated 19.07.1974 passed by the petitioner No. 2, District Basic Education Officer, Gonda. On 29.10.1996, the Claim Petition was allowed and the Suspension Order dated 19.07.1994 was set-aside with direction to reinstate the respondent No. 2 and pay him consequential benefits like salary etc. as per rules w.e.f. the date of Suspension Order.
The case of petitioners before this court as well as before the Tribunal was that the respondent No. 2 was never appointed. He was a total stranger to the Department as he was not appointed and hence there was no question of issuing any Suspension Order.
The case of the petitioners is also based on the fact that the rules for Uttar Pradesh Basic Education Staff Rules, 1973 came into effect from 17.11.1973 and prior to that there was no post of Basic Shiksha Adhikari and hence, the Tribunal has wrongly allowed the Claim Petition.
Submission of learned counsel for the petitioner is that it is after a gap of about 16 years the Suspension Order was challenged and the claim petition was highly belated and in the counter there was absolute denial on very existence of Order of appointment and suspension of the respondent No. 2. The Tribunal vide its order dated 07.05.1992 required the claimant/respondent No. 2 to file originals of Annexure Nos. 1, 2 and 3. The said order, it appears, was passed because the documents which were filed before the Tribunal by the respondent No. 2 did not inspire any confidence. After two months when the case was taken up on 28.07.1992, the originals could not be filed by the respondent No.2/claim petitioner and on account of same, the Tribunal vacated the interim order which was granted to him initially. There is no finding by the Tribunal on record to show that subsequently, the original documents were filed, veracity was checked and examined and despite the denial of the State government, the documents could be and have been proved to be genuine and the same were issued/passed in accordance with law.
Learned counsel for the petitioner further submits that the judgment is not based on any finding of fact but rather on technical ground to the effect that the counter affidavit or an application should have been signed and filed either by Appointing Authority/District Basic Education Officer or by the Deputy Secretary, in case affidavit was filed on behalf of the Government and Tribunal on this ground ignored the counter affidavit/written statement filed/sworn by Head of Teacher Sri Jagdamba Saran.
Further submission of learned counsel for the petitioner is that on 25.01.2018 the counsel for respondent No. 2 was given time to bring on record relevant documents i.e. advertisement, call letter, recommendation of Selection Committee and appointment letter but he in fact failed to do so in true spirit, as after the above a supplementary counter affidavit dated 02.02.2018 was filed annexing therewith the copy of Appointment Order, suspension Order and documents showing the payment of subsistence allowance paid, which was paid under interim Order and the respondent No. 2 miserably failed to prove his case even before this Court.
Per contra, submission of learned counsel for the respondent No. 2 is that the original documents, as directed by the Tribunal, were filed before the Tribunal and an employee can not be kept under suspension for a long period without holding any enquiry and point of delay was not raised and the Orders in question were passed by the competent authority and the Tribunal rightly allowed the claim petition.
In Paragraph 10 of the counter affidavit filed by the respondent No.2 before this Court, it has been alleged by the respondent that subsequently he had filed the originals which were kept in sealed cover by the Tribunal. However, we do not find any averment in the Order dated 29.10.1996, under challenge, that "original appointment and suspension Order" were filed and were kept in the sealed cover.
In regard to the issue of delay, the principles settled is that plea of limitation is the plea of jurisdiction and the Court or Tribunal is under obligation to determine/decide the point of delay even in absence of plea to the same effect set up as a defence. This principle is settled in view of Section 3 of the Limitation Act. The Hon'ble Apex Court in the case of Gannmani Anasuya v. Parvatini Amarendra Chowdhary (2007) 10 SCC 296 has held that "In terms of Section 3 of Limitation Act, it is for the Court to determine the question as to whether the suit is bound by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties". The same principle, in other words, has been pointed out by the Hon'ble Apex Court in the case reported in (2004) 2 SCC 712 Food Corporation of India v. Babulal Agrawal. In the said case it has been said that "A suit filed beyond limitation is liable to be dismissed even though limitation may not have been set up as a defence."
Keeping in view the principle settled on the issue of limitation, as narrated above, and Section 5 (b) of the U.P. Public Service Tribunal Act, 1976, as well as the fact that Suspension Order dated 19.07.1974 was challenged in the year 1991 i.e. after about 16 years (highly belated stage), we are of the opinion that the Tribunal ought to have considered and decided the issue of delay and in not doing so erred in Law.
The claim petition should have been filed in reasonable time even in the cases of continuous wrong and in this case the claim petition was not filed even in reasonable time as the same was filed after a lapse of about 16 years from the date of Order of Suspension i.e. 19.07.1974 and the claim petition was liable to be dismissed on the ground of limitation whereas the Tribunal without considering the issue of limitation allowed the claim petition, as such Tribunal erred in Law.
On the aspect of delay in approaching the Tribunal and the issue of limitation we are of the opinion that the Order of the Tribunal is liable to be interfered by this Court.
It appears that while allowing the claim petition Tribunal ignored the counter affidavit/written statement on the ground that the counter affidavit/Written Statement filed by the Department has not been filed by the Appointing Authority rather, the official who was doing the Parvi of the case, has filed the counter affidavit and also ignored relevant fact that in the instant case the Tribunal after considering the averments made in counter affidavit/written statement vide Order dated 07.05.1992 directed the respondent No. 2 to file the original documents. The claim petition was allowed on the basis of averments made therein and without discussing as well as recording finding on the issue of valid Order of appointment and Order of suspension.
It is to mention, that the settled principle is that a case ought not to have decided on the weakness of defence and it is the duty of claimant to plead and prove his case and Court should not blindly rely upon the averments made in the plaint/claim petition even in absence of counter affidavit/written statement. The above said principle finds place in the judgment of the Hon'ble Apex Court reported in (2003) 7 SCC 350 (Ramesh Chand Ardawatiya vs. Anil Panjwani).
We feel that the approach of Tribunal was not just in the facts of the case and Tribunal after considering the Order dated 07.05.1992, whereby originals were directed to file, based on the averments made in counter affidavit should have recorded the findings on the issue of Order of appointment and suspension of the respondent No. 2 or prior to deciding the case should have given the opportunity to cure the defect in filing the counter affidavit/written statement.
The present petition has been filed by the State Authorities including the District Basic Education Officer, Gonda who is petitioner No. 2 and in the writ petition also it has been categorically stated that respondent No. 2 was never appointed. The filing of the writ petition on behalf of Zila Basic Education Officer along with Basic Shiksha Parishad, Allahabad through its Secretary itself has cured the defect on which the Tribunal has based its judgment and being so this Court on the basis of pleadings on record, as narrated in brief herein above, records a finding that counsel for the respondent No. 2 has not been able to demonstrate and prove that the respondent No. 2 was validly appointed and there was any suspension order passed against him.
Thus, from the aforesaid, it leads to the conclusion that, even if the arguments of the respondent No. 2 is to be believed that there was a Zila Basic Education Adhikari in the year 1973 in the month of June i.e. prior to coming of the Staff Rules into existence, there was no appointment Order issued in favour of respondent No. 2.
We feel that in a case where the very existence of the document(s) was in question, the claim petition could not have been allowed without recording categorical finding on the existence and veracity of the documents by the fact finding Tribunal. We find that the alleged suspension order was passed in the year 1974 and the Claim Petition was filed in the year 1991 and even on the ground of delay and latches, the Claim Petition could not have been allowed.
Considering the issue of delay in approaching the Tribunal and the conclusion drawn by this Court on the validity of appointment of respondent No. 2, this Court is of the view that the writ petition is liable to be allowed. It is accordingly allowed. The Order of the Tribunal dated 29.10.1996 is set-aside. No order as to cost.
However, keeping in view the age of the respondent, it would be just and proper that petitioners be restrained from recovering the amount already paid to the respondent No. 2. It is ordered accordingly.
Order Date :- 21.12.2018 Arun/-
(Saurabh Lavania,J.) (Shabihul Hasnain,J.)