Judgment Reserved on 01.02.2018 Judgment Delivered on 28.02.2018
Case :- WRIT - A No. - 7193 of 2015 Petitioner :- Union Of India And 3 Ors. Respondent :- Sadru Nisha Counsel for Petitioner :- A.K. Gaur,M.K. Sharma Counsel for Respondent :- Ashish Srivastava
Hon'ble Pankaj Mithal,J. Hon'ble Saral Srivastava,J.
The Central Administrative Tribunal, Allahabad by the impugned order dated 27th November, 2014 has allowed the Original Application of the respondent by setting aside the order dated 22.12.1994 and directing the petitioner to pay all retirement dues and pension to the respondent within three months deeming that her husband had died-in-harness and that no order of dismissal from service was ever passed against him.
The husband of the respondent late Mohd. Jaheer was working as Khalasi with the railway in the office of the Assistant Mechanical Engineer, Carriage and Wagon, North Central Railway, Allahabad. He was dismissed from service on 22.12.1994 and ultimately died on 29.7.2006. After his death the respondent-wife moved Original Application for quashing of the order of dismissal dated 22.12.1994 and for the payment of terminal benefits. The Tribunal has allowed the above claim holding that the respondent- wife acquired knowledge of the dismissal order dated 22.12.1994 only through the counter affidavit of the petitioners filed in an earlier Original Application No.599 of 2009 preferred by the respondent seeking compassionate appointment of her son on the death of her husband. Therefore, the claim preferred by her is not barred by time. The order of dismissal is bad in law for not following the principles of natural justice.
Sri Manoj Kumar Sharma, learned counsel for the petitioners argued that once the order of dismissal remained unchallenged by the husband of the respondent and it attended finality it could not not have been challenged after 16 years by the respondents wife. The claim of the respondent was barred by time and, therefore, the Tribunal exceeded its jurisdiction in entertaining it and in allowing the same.
Sri Sunil, learned counsel appearing for the contesting respondent reiterated the reasoning given by the Tribunal and submitted that she had no knowledge of the order of dismissal from service passed against her husband in the year 1994 which came to her knowledge in 2009. Her husband was mentally ill and, therefore, no adverse inference can be drawn against her if the dismissal order had remained unchallenged by her husband.
There is no dispute as to the date on which the order of dismissal was passed against the husband of the respondent I.e. 22.12.1994 and that he died on 29.7.2006.
In view of the above, the dismissal order remained unattended from 1994 and 2006 by the husband of the respondent and it was not challenged by him in any forum.
The respondent instead of submitting any medical papers to establish the illness of her husband, made a representation on 11.4.1988 for her appointment on compassionate basis on the ground that the condition of her husband is not good and is deteriorating day by day. The petitioners informed her that her application could be considered for appointment only if her husband is medically de- categorized and she produces medical reports regarding treatment of her husband.
The respondent preferred another representation dated 12.5.2007 for compassionate appointment of her son due to death of her husband in the meantime. The said request was turned down vide letter dated 15.6.2007 against which she filed Original Application No.599 of 2009. In response to the above claim for compassionate appointment the petitioners informed that her husband was unauthorizedly absent from work from 17.10.1987. Accordingly, a disciplinary inquiry was conducted and an order dated 22.12.1994 for dismissal from service was passed against him.
It is in the above background that the respondent alleges that she came to know of the dismissal order only in 2009 and filed the present Original Application immediately within time.
Section 21 of the Administrative Tribunal Act, 1985 provides for limitation of one year for raising any claim before the Tribunal and that a claim may be admitted even after one year so specified, if a party is able to satisfy to the Tribunal that he was prevented by sufficient cause from raising the claim within the stipulated period.
Section 21(1) and Section 21(3) of the Act which are relevant for our purposes are reproduced herein-below:
“21. Limitation. - (1) A Tribunal shall not admit an application, -
(a) in 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) .....................
(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 (1) 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 time.”
A reading of the aforesaid provisions reveal that the limitation for filing any application under the Act before the Tribunal is one year from the date as specified thereunder and that the Tribunal may entertain an application even beyond the above period for sufficient cause.
The date of the order or the deemed order or the expiry of the period of six months of the the filing of appeal or representation with no subsequent order are material for the purposes of computing the limitation for presenting an application for claim before the Tribunal and the date of acquiring knowledge of such final order by the party is not at all material or relevant. The date of knowledge may be relevant for the purposes of getting the delay condoned in filing the application for claim but not for computing the period of limitation.
The respondent along with the Original Application submitted an application for condoning the delay in filing it. A perusal of the said application and the affidavit reveals that the only averment made therein is that she acquired knowledge of the dismissal of her husband from service through the counter affidavit filed by the petitioner in Original Application No.599 of 2009 but in the affidavit filed in support of the delay condonation application she has not uttered a single word that even her husband had no knowledge of the order of his dismissal from service or that he was of unsound mind or mentally so incapable that he was unable to challenge the punishment order.
There is no material on record which could justify by any stretch of imagination that the husband of the petitioner was mentally ill and was not in a position to challenge the order of his removal from service. There is no averment anywhere that he never had the knowledge of the order of his dismissal from service.
In the above facts and circumstances, merely for the reason that the respondent herself personally acquired knowledge of the order dated 22.12.1994 in 2009 would not extend the period of limitation to challenge the order of dismissal dated 22.12.1994 in the year 2010 or to condone the delay in challenging the same.
In fact, the said order would be deemed to have attained finality having remained unchallenged by the husband of the respondent. Thus, the order which remained unchallenged and undisturbed during the lifetime of the husband of the respondent could not have been agitated by her after a period of 16 years before the Tribunal.
The Tribunal by the impugned order has treated the claim application of the respondent to be within time taking the date of knowledge ascribed to the respondent as the starting point of limitation which is legally incorrect. The starting point of computing limitation for filing original application before the Tribunal is one year from the date of the order or the dayon which 6 months expire on the filing of appeal or representation against it with no subsequent order.
The Tribunal has not assigned any reason for condoning the delay. It has not even recorded the finding that the cause shown for filing the claim application after such a long interval is sufficient.
This apart, no order was passed by the Tribunal allowing the delay condonation application of the respondent so as to condone the delay in filing the claim application.
Thus, under the facts and circumstances of the case, we are of the opinion that the Tribunal certainly exceeded its jurisdiction in entertaining the original application of the respondent which was preferred after the expiry of the period of limitation without condoning the delay in filing it and at the same time without recording any finding that the respondent was prevented by sufficient cause from filing it within the time prescribed, more particularly when the order dated 22.12.1994 was not challenged by the deceased-husband of the respondent in his lifetime and no evidence was adduced to establish that he was mentally ill or was of unsound mind during the period 1994 to 2006.
Accordingly, the impugned order dated 27th November, 2014 is quashed and the writ petition is allowed with no order as to costs.
Order Date :- 28.02.2018 Brijesh