Allowed

State of U.P.Thru Principal Sec. Irrigation Deptt.and Others v. Shri Muneeb Ji and Another

Allahabad HC7 Dec 2019WRIA/52167/2011

Case brief

AI extract

What is this about?

The High Court allowed this writ petition, setting aside the Tribunal's order that reinstated a petitioner. The court held that the claim petition was barred by limitation as per Section 5 of the U.P. Public Services (Tribunals) Act, 1976, citing that the exclusion period did not apply as the remedy was not under service rules, and bilateral representations could not revive a stale cause of action

What did the court decide?

Writ petition allowed; Impugned judgment dated 16.04.2010 passed by the Tribunal is set aside.

State of U.P.Thru Principal Sec. Irrigation… — Service and Employment | Allahabad HC (2019)

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Court No. - 34

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Case :- WRIT - A No. - 52167 of 2011

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Petitioner :- State Of U.P.Thru Principal Sec. Irrigation Deptt.And Others Respondent :- Shri Muneeb Ji And Another Counsel for Petitioner :- Pankaj Saxena,R.B. Pradhan, C.S.C. Counsel for Respondent :- Ashok Khare, S. D. Kautilya, S. P. Pandey, S. S. Sharma, Sharad Shekhar Misra, Shashank Shekhar Mishra

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Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra, J.

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Heard learned Standing Counsel for petitioner and Sri Sharad Shekhar Misra, learned counsel for claimant-respondent-1.

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This writ petition under Article 226 of Constitution of India have been filed against judgment and order dated 16.04.2010 passed by State Public Service Tribunal, Lucknow (hereinafter referred to as “Tribunal”) allowing Claim Petition No.1195 of 2005.

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Claimant-respondent was employed as Part Time Tube Well Operator on 05.12.1986. He sought medical leave vide application dated 23.12.1987 and also sought permission that his brother Kamla Prasad be allowed to work as Pump Operator. Thereafter he absented from duty and instead of him, his brother Kamla Prasad ran Tube Well from 15.01.1988 to 01.04.1988. Claimant-respondent remained absent on medical ground seeking extension from time to time for the period from 15.01.1988 to 26.05.1988. On 27.06.1988 when he sought to join, he was not allowed, thereafter he got implicated in criminal cases in which he was arrested and sent to jail and bailed out on 13.06.1988. He was, however, directed by Executive Engineer, Tube Well Division-IInd, Jagatganj, Varanasi vide order dated 17.02.1989. Said termination order was challenged by claimant-respondent in a writ petition before this Court, which was dismissed vide judgment dated 08.03.1989 on the ground of alternative remedy. Said judgment reads as under :

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“The petition was initially filed on the ground that the

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petitioner has been suspended without any cause. Subsequently by means of an amendment application moved by the petitioner today, the petitioner is bringing under challenge the final order of termination passed on 17.02.1989. The order of termination challenged on the ground that the same is arbitrary and that it is also bad for failure of the respondents to given one month's notice to the petitioner. Learned counsel submitted that the petitioner was placed under suspension on account of pendency of a criminal case in which he was released on bail. We refrain from making any comments on the merit of the petitioner's contention, as, in our opinion, the petitioner has an alternative remedy available to him which is equally efficacious by way of approaching to the U. P. Public Service Tribunal. Therefore, it is not a fit case for interference at present. Hence this petition is incidentally dismissed on the ground of alternative remedy.

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A copy of this order may be given on payment of requisite for within 24 hours.”

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But claimant-respondent did not avail said remedy and filed no claim petition before Tribunal within period of limitation. It is said that in criminal case he was acquitted vide judgment dated 06.01.1994 whereafter he filed writ petition before this Court challenging termination order dated 17.02.1989 in Writ Petition No.16979 of 1994. This Court found that petitioner earlier approached this Court and writ petition was dismissed on the ground of alternative remedy and without availing remedy, order of termination cannot be allowed to be challenged and petition was dismissed vide judgment dated 26.07.2005. Aforesaid judgment reads as under :

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“The petitioner has approached this court for issuing a writ of certiorari quashing the order dt. 17.2.89, annexure-7 to the writ petition. In the criminal case the petitioner has been acquitted vide order dt.6.1.94. It is also to note from the record that the order of termination was challenged before this court by way of a writ petition which was dismissed on merits vide order dt.8.3.89. Now the same order has been challenged by way of the writ petition only on the ground that the petitioner has been acquitted in the criminal case, therefore, he is entitled for reinstatement.

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After hearing counsel for the parties and after perusal of the record, it is clear that the writ petition was dismissed on the ground of alternative remedy to approach the Tribunal challenging the order dt. 17.2.89. Therefore, in my opinion the same order of termination which is sought to be quashed by this court again, by means of the present writ petition, cannot be challenged.

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The writ petition is hereby dismissed. No order as to costs.” 5. Thereafter it appears that claimant-respondent filed Claim Petition No.1195 of 2005 challenging termination order. Relief prayed for in the claim petition reads as under :

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^^;kph izLrqr ;kfpdk esa of.kZr rF;ksa] ifjfLFkfr;ksa] lk{;ksa ,oa vk/kkjksa ds vk/kkj ij fuEufyf[kr mipkjksa gsrq ekuuh; vf/kdj.k ds le{k U;k; izkIr djus gsrq ;g funsZ'k ;kfpdk izLrqr dj jgk gS%&

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1- ;g fd foi{kh la[;k&2 }kjk ikfjr lsok lekfIr vkns'k la[;k 274@iui vk[;k@vkijsVj fnukad 17-2-1989 dks vfHk[kf.Mr djrs gq, leLr ikfj.kkfed lsokykHk iznku djrs gq, fu.kZ; ikfjr gksus dh frfFk rd lsok esa ekurs gq, osru HkRrksa vkfn dk Hkqxrku C;kt lfgr fd;k tk;sA

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2- ;g fd ekuuh; vf/kdj.k dh n`f"V esa ;kfpdk esa of.kZr rF;ksa] ifjfLFkfr;ksa] lk{;ksa] vk/kkjksa ,oa layXudksa rFkk lefFkZr lR;kiu ds vk/kkj ij ;fn dksbZ vU; Rofjr o ykHkdkjh mipkj miyC/k gks rks mls Hkh ;kph ds i{k esa ikfjr fd;k tk;sA

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3- ;g fd ;kfpdk dk O;; e; vf/koDrk 'kqYd ds ;kph dk foi{khx.k ls fnyk;s tk;sA**

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“The petitioner, so as to secure justice, is presenting the instant petition before the Hon'ble Tribunal, for the following reliefs on the basis of the facts, circumstances, evidences and grounds mentioned therein:

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1. That by setting aside the service termination order no. 274/PaNaPa Aakhya/Operator dated 17.02.1989 passed by the opposite party no. 2, the payment of salaries, allowances etc. may kindly be paid with interest treating him to be in service until the date of decision giving him all the consequential benefits.

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2. That any other relief, expeditious and beneficial, may kindly be also awarded in favour of the petitioner if in eyes of the Hon'ble Tribunal, such relief is available in view of the

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facts, circumstances, evidences and grounds mentioned in the petition and the annexures appended thereto.

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3. That the cost of the petition including advocate fee may kindly be awarded to the petitioner.

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(English Translation by Court)

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Claim petition was admitted by passing following order on 22.11.05 :

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“Heard on admission. The claim petition deserves to be admitted. Admit. Issue notices to the O.P.s for filing CA/WS on 5.12.05.”

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By means of judgment and order under question, claim petition has been allowed.

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Learned Standing Counsel at the outset submitted that order of termination was passed admittedly on 17.02.1989. It was admittedly communicated to petitioner for the reason that it was challenged by him in Writ petition filed in 1989 itself which was dismissed on 08.03.1989 on the ground of alternative remedy, yet claimant-respondent did not avail alternative remedy of filing application before Tribunal within period of limitation. Limitation once start, would not stop and after expiry of limitation, Tribunal had no jurisdiction to entertain the claim petition. He further submitted that Tribunal in the judgment in question has observed that issue of limitation was decided on 22.11.2005 but said order nowhere considered the issue of limitation, hence, this finding of Tribunal is also perverse.

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Learned counsel appearing for claimant-respondent on the contrary submitted that since he was acquitted in criminal case in 1994, thereafter he challenged termination order before this Court and after dismissal of writ petition on the ground of alternative remedy, he approached Tribunal.

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In our view, claim petition was absolutely barred, not only by limitation but also for the reason that once order of termination passed in

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1989 was challenged in a writ petition and same was dismissed on the ground of alternative remedy, but the same was not availed, as such, second writ petition challenging same order was not entertainable at all and said order of termination could not have been challenged before the Court. Moreover, it cannot be said to be a case where claimant-respondent was pursuing remedy under wrong advice to seek exclusion of time under Section 14 (1) of Indian Limitation Act, 1963 (hereinafter referred to as “Act, 1963”).

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The provision for limitation for filing Claim Petition before Tribunal is under Section 5 (1) of U.P. Public Services (Tribunals) Act, 1976 (hereinafter referred to as "Act, 1976") reads as under:

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" 5. Power and procedure of the Tribunal -

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(1) (a)...........

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(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:

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(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 ;

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(ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service , and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded:

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Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 may be made within the period prescribed by that Act; or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier:

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Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985 shall affect any reference made before and pending at the commencement of the said Act. "

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(emphasis added)

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Limitation for filing Claim Petition before Tribunal under Section 5(1)(b)(i) is one year. Section 5(1)(b)(ii) provides that in computing period of limitation of one year, period taken when a representation, or appeal in accordance with Rules or Orders regulating the conditions of service was made and ending the date on which public servant has knowledge of final order passed on such appeal or representation, as the case may be, shall be excluded. Therefore period consumed in decision of an appeal, revision, representation or writ petition will be excluded only when such remedy is provided under Rules or Orders regulating conditions of service and availed by public servant and not otherwise. It is not shown to us, despite repeated query, as to under which provision of Rules or Orders regulating the conditions of service, the alleged representations were made. When there is no such provision under Rules or Orders regulating conditions of service, Section 5(1)(b)(ii) will have no application and hence limitation will be only one year from that date when cause of action arose. In the present case, by means of claim petition claimant-respondent approached Tribunal challenging termination order dated 07.05.1986, therefore limitation expired on expiry of one year from the date of said order. The claim petition therefore, filed in 2005 was apparently barred by limitation. Mere fact that subsequently representations were made and the same were directed to be decided by Tribunal will not revive period of limitation which has already expired.

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In C. Jacob Vs. Director of Geology and Mining and another 2008 (10) SCC 115 , a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, Court has expressed its views as under:

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"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."

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(emphasis added)

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In Union of India and others Vs. M.K. Sarkar 2010 (2) SCC 59 , Court after referring to C. Jacob (supra) has ruled, when a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a Court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.

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From the aforesaid authorities it is clear as crystal that even if Court or Tribunal directs for consideration of representations relating to a stale claim or dead grievance, it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, (2006) 4 SCC 322 ,

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Court took note of the factual position and laid down that when nearly for two decades respondent- workmen therein had remained silent, mere making of representations could not justify a belated approach.

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In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1967 SC 993 , it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330 . The aforesaid authorities of Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 , Court held that it is well settled principle of law that delay defeats equity.

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When questioned, learned counsel for claimant-respondent could not answer the above authorities and exposition of law.

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In view of above exposition of law, since order of termination was passed in 1989 and period of limitation expired in 1990, thereafter Tribunal had no jurisdiction to entertain claim petition, impugned judgment was clearly barred by Act, 1963, and cannot be sustained.

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In view thereof writ petition is allowed. Impugned judgment dated 16.04.2010 passed by Tribunal is set aside.

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Order Date : 07.12.2019 Manish Himwan

State of U.P.Thru Principal Sec. Irrigation Deptt.and Others v. Shri Muneeb Ji and Another

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State of U.P.Thru Principal Sec. Irrigation Deptt.and Others v. Shri Muneeb Ji and Another

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