Allowed

U.P. Power Corporation Ltd. Thru. M.D.and Anr. v. U.P. State Public Sevice Tribunal Thru. Registrar and Ors.

Allahabad HC13 Feb 2023WRIA/19501/2018

Case brief

AI extract

What is this about?

The Allahabad High Court allowed this writ petition, holding that a claim petition filed to challenge a 10-year-old punishment order was barred by limitation. Repetitive representations did not extend the limitation period under Section 5(1)(b) of the U.P. State Public Service (Tribunals) Act as they were not filed under governing service Rules. The Tribunal erred in entertaining the petition with

What did the court decide?

The judgment and order dated 06.02.2018 passed by the Tribunal allowing Claim Petition No. 1624 of 2016 is set aside and the claim petition is dismissed.

U.P. Power Corporation Ltd. Thru. M.D.and… — Pension and Retirement Benefits | Allahabad HC (2023)

A.F.R.

Court No. - 1

Case :- WRIT - A No. - 19501 of 2018 Petitioner :- U.P. Power Corporation Ltd. Thru. M.D.And Anr. Respondent :- U.P. State Public Sevice Tribunal Thru. Registrar And Ors.

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Counsel for Petitioner :- Vikrant Raghuvanshi,Neerav Chitravanshi Counsel for Respondent :- C.S.C.,Deo Raj Singh,P.K. Srivastava,Renu Mishra

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Hon'ble Ramesh Sinha J. Hon'ble Subhash Vidyarthi J.

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Heard Sri Neerav Chitravanshi Advocate, the learned Counsel for the petitioner - Power Corporation, Ms. Renu Mishra Advocate, the learned Counsel for the opposite party, and Sri Anand Kumar Singh, the learned Standing Counsel for the State and and perused the records.

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By means of the instant writ petition the petitioner- U.P. Power Corporation Ltd. has approached this court challenging the judgment and order dated 6.2.2018 passed by the State Public Service Tribunal (hereinafter referred as 'the Tribunal') whereby the claim petition No. 1624 of 2016, which was filed by the opposite party no. 2, was allowed.

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The aforesaid claim petition had been filed by the opposite party no. 2 challenging an order dated 5.5.2006 passed by the Chairman, U.P. Power Corporation Ltd./opp. party no. 2, whereby the punishment of Censure entry and stoppage of two annual increments with cumulative effect was imposed upon the respondent no. 2.

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On 12.6.2006 the respondent no.2 had submitted a representation to the U.P. Power Corporation Ltd. against the punishment order dated 5.5.2006 and the said representation was treated as an appeal and the same was also rejected by means of an order dated 22.5.2008. Thereafter, the respondent no. 2 submitted two representations dated 17.11.2008 and 30.3.2016 against the aforesaid orders, which were

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disposed of by means of an order dated 6.6.2016 stating that the appeal filed by the respondent no. 2 had already been rejected by means of an order dated 22.5.2008 and, therefore, no action was warranted on his representation dated 17.11.2008 or 30.3.2016.

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The respondent no.2 had filed the claim petition challenging all the aforesaid orders dated 5.5.2006 imposing punishment of Censure entry and stoppage of annual increments, order dated 22.5.2008 rejecting his appeal and the order dated 6.6.2016 on his representation, by filing Claim Petition No. 1624 of 2016 before the Tribunal.

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The petitioner- U.P. Power Corporation Ltd., which was an opposite party in the claim-petition, opposed the claim-petition on the preliminary ground that the punishment order was passed on 5.5.2006 and the claim-petition was barred by the period of limitation provided in section 5 of the U.P. State Public (Tribunals) Act.

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The Tribunal held that the respondent no. 2 had challenged the latest order dated 6.6.2016 and the claim-petition had been filed on 16.8.2016, which was admitted on 27.10.2016 and in such circumstances there was hardly any need to re-open the question. Thus, apparently the plea of limitation was not gone into by the Tribunal for the mere reason that the claim petition had been admitted.

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Section 5 (1) (b) of the State Public Service Tribunal Act provides as follows: -

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“(b) The provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under section 4 as if a reference were 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

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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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From a bare perusal of the aforesaid statutory mandate it is apparent that the period of limitation for filing a claim-petition is one year and in computing the period of limitation, the period on which the employee makes a representation or prefers an appeal, revision or any other petition 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, or revision or petition, shall be excluded.

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In the present case, the punishment order was passed on 5.5.2006 and the period of limitation starts running from the immediate following day.

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The petitioner had submitted a representation against the aforesaid order on 12.6.2006 and the same was rejected by means of an order dated 22.5.2008. Thereafter, the petitioner claims to have submitted repetitive representations on 17.11.2008 and on 30.3.2016. No Rule or any other provision of law has been mentioned in the representation dated 17.11.2008 under which the same was filed. After sleeping over the matter for about eight years the respondent no. 2 submitted another representation on 30.3.2016 for re-consideration of the order dated 22.5.2008. The said representations were rejected by means of the order dated 6.6.2016 stating that the representation dated 17.11.2008 had been consigned, as his appeal had already been rejected by means of an order dated 22.5.2008 and no action was warranted on the representation. The order dated 6.6.2016 further stated that no action was warranted on the request made by him through his letter dated 30.3.2016 for setting aside the punishment order.

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Section 5 of the U.P. Public Service (Tribunals) Act provides for exclusion of time spent in decision of disposal of representation, appeal, revision or any other petition submitted " in accordance with

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the Rules or orders regulating his conditions of service " as the repetitive representations submitted by the respondent no. 2 did not refer to any Rules or orders regulating his conditions of services, the filing of repetitive representations against the punishment order dated 5.5.2006 will not extend the period of limitation prescribed under section 5(1) of the U.P. State Public Service (Tribunals) Act.

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In this regard, Sri Neerav Chitravanshi, the petitioner's counsel, has placed before this Court the judgment dated 29.5.2015 rendered by a Coordinate Bench of this Court in the State of U.P. v. Vivekanand Singh & anr. , MANU/ UP/1557/2015 wherein this court held that the original order having been passed on 28.12.2012 and no statutory remedy having been preferred against it the period of limitation for filing a claim-petition was one year from the date of passing of the original order. This Court further held that “ The point of limitation goes to the root of the matter. It involves a jurisdictional issue. The Limitation Act has been made applicable to the Tribunal, as it was applicable to a suit, thus, Section 5 thereof has no application to a reference filed under Section 4 of the Act. If a claim petition is barred by limitation, then irrespective of its merits, the Tribunal has no other option but to decline to entertain it. It does not have the power to condone the delay.”

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Per contra , Ms. Renu Mishra, learned counsel for the respondent no. 2, has opposed the writ petition and she has placed reliance on a decision of Hon'ble the Supreme Court in the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648 , wherein the Hon’ble Supreme Court held that:-

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“4. The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong" refers to a single wrongful act which causes a continuing injury. "Recurring/successive wrongs" are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. This Court Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan explained the concept of continuing wrong (in the context of Section 23 of the Limitation Act, 1908 corresponding to Section 22 of the Limitation Act, 1963): (AIR p. 807, para 31)

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‘31.... It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.’

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* * *

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8. In this case, the delay of sixteen years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to sixteen years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances.”

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The aforesaid case initiated from the denial of Disability Pension to a person, who was invalidated out of Army Service in Medical category and the aforesaid observations were made by the Hon’ble Supreme Court with reference to denial of Disability Pension to an Ex Serviceman, which was treated to be a “continuing wrong”, however, the challenge in the present case was against a punishment order of awarding a censure entry and stoppage of two annual increments with cumulative effectives, which is not the same as denial of Disability Pension.

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In Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334 , the Hon’ble Supreme Court held that: -

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“7…. It is the rule deducible from application of law to the facts and circumstances of a case, which constitutes its ratio decidendi and not some conclusion based upon facts, which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when principles are applied in each to similar facts .”

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(Emphasis by the Court)

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In Commissioner of Income Tax v. Son Engineering Works Pvt.

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Ltd., (1992) 4 SCC 363 , the Hon’ble Supreme Court held that: -

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“39… It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court divulged from the context of the question under consideration and treat it to be the complete “Law declared by this court.” The judgment must be read as a whole and the observations of the judgment have to be considered in the light of the questions which were before this court . A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Court must carefully try to ascertain the true principle laid down by a decision of this Court, and not to pick out words or sentences from the judgment, divulged from the context of the questions under consideration by this court, to support their reasonings…”.

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(Emphasis by the Court)

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Again in Ambica Quarry Works v. State of Gujrat , (1987) 1 SCC 203, the Hon’ble Supreme Court held that “The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.”

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The Hon’ble Supreme Court reiterated the aforesaid principles in Bhav Nagar University v. Palitana Sugar Mills Pvt. Ltd. , (2003) 2 SCC 211 , by stating that – “59… A decision as is well known, is an authority for which it decides, and not what can logically be deduced therefrom.” It is also well settled that “a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”

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Therefore, the aforesaid decision rendered in a case arising out of denial of Disability Pension to an Ex Serviceman would have no application to the instant case, which arises out of imposition of punishment of censure entry and stopage of two annual increments.

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In C. Jaqab v. Director of Geology and Mining Indus. Est. & anr., (2008) 10 SCC 115 , the Hon’ble Supreme Court held that “When an order is passed considering and rejecting the claim or representation in compliance with direction of the Court or Tribunal, such an order does not revive the stale claim, nor amount to some amount of

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‘acknowledgement of a jural relationship’ to give rise to a fresh cause of action.”

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In Union of India & ors. V. M.S. Sarkar, (2010) 2 SCC 59 , the Hon’ble Supreme Court held that “when a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction of the Court or Tribunal to do so. The date of the said decision cannot be considered as furnishing a cause-of-action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and latches 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.”

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Examining the facts of the present case in the light of the law laid down by the Hon’ble Supreme Court and mentioned above, it is apparent that the punishment order was passed on 5.5.2006. The respondent no. 2 submitted a representation against the aforesaid order on 12.6.2006 to the U.P. Power Corporation Ltd. The representation was treated as an appeal and was rejected by means of an order dated 22.5.2008. Thereafter, the respondent no. 2 again submitted representations dated 17.11.2008 and 30.3.2016 to the same authority, without making mention of the provision under which the same were filed. The representations were disposed of by stating that as the appeal filed by the respondent no. 2 had already been rejected, no action was warranted on his representations. The representations were not filed under any Rule governing the service conditions of the respondent no. 2. In such circumstances, filing of successive representations would not extend the period of limitation. The Tribunal has erred in law in not deciding the plea of limitation merely on the ground that the claim petition had been admitted.

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As section 5 (1) (b) of the U.P. Public Service (Tribunals) Act 1976 provides that the provisions of the Uttar Pradesh Act 1963 shall mutatis mutandis apply to reference under section 4, as the reference were a suit filed in the civil court, Section 3 of the Limitation Act would apply to it, which provides that a suit instituted after the

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prescribed period of limitation, shall be dismissed, although limitation has not been set up as a defence. The Tribunal has no power to condone the delay in filing the claim petition. Therefore, the claim petition filed after the expiry of the limitation period has to be dismissed and it cannot be entertained and adjudicated on its merits merely because it had been admitted.

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In view of the aforesaid discussions, we are of the view that the claim petition which was filed by the respondent no. 2 before the Tribunal on 13.08.2016 challenging the punishment order dated 05.05.2006 and the appellate order dated 22.05.2008 was barred by the period of limitation prescribed under section 5 of the U.P. Public Service (Tribunals) Act 1976 and the Tribunal erred in entertaining the claimpetition and allowing the same, without deciding the plea of limitation on the ground that the claim petition had been admitted. The claim petition being barred by limitation was liable to be dismissed as such.

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In view of the aforesaid discussion, the writ petition is allowed . The judgment and order dated 06.02.2018 passed by Tribunal allowing the Claim Petition No. 1624 of 2016 is hereby set aside and the claim petition is dismissed.

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( Subhash Vidyarthi J. ) ( Ramesh Sinha, J. )

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Order Date :- 13.2.2023 A.Nigam

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Digitally signed by :- ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

U.P. Power Corporation Ltd. Thru. M.D.and Anr. v. U.P. State Public Sevice Tribunal Thru. Registrar and Ors.

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U.P. Power Corporation Ltd. Thru. M.D.and Anr. v. U.P. State Public Sevice Tribunal Thru. Registrar and Ors.

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