Chandra Bhan Singh & 14 Others vs Union Of India Thru. ...
2018 Latest Caselaw 1329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 7005 of 2018
 

 
Petitioner :- Chandra Bhan Singh & 14 Others
 
Respondent :- Union Of India Thru. Gen.Manager,Ministry Of Railways & Ors.
 
Counsel for Petitioner :- Ripu Daman Shahi,Vimal Kumar
 
Counsel for Respondent :- A.S.G.,Neerav Chitranshi
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mrs. Rekha Dikshit,J.

1. Heard Shri Ripu Daman Shahi, learned counsel for the petitioners and Shri Neerav Chitranshi, learned counsel for the respondents and perused the record.

2. By means of the present writ petition, the petitioners have challenged the order dated 8.12.2017 passed by learned Central Administrative Tribunal, Lucknow by which the original application i.e. Joint Application No.332/02163/2016 in Diary No.332/03890/2016 along with condonation of delay Application No.332/02162/2016 jointly filed by the petitioners was rejected.

3. Brief facts giving rise to original application are that the petitioner - Chandra Bhan Singh and 25 other persons filed O.A. along with condonation of delay Application claiming the following reliefs:-

"(i) To issue an order or directing thereby directing the respondents to consider the case of the applicants and decide the question of their seniority as per service rules of the Railways within the time period as may be deemed fit, just and proper by this Hon'ble Tribunal.

(ii) To issue an order or directing thereby directing the respondents to take decision in respect of providing the consequential benefits accrued to the applicants on their absorption as permanent employee of the Indian Railways as per service rules.

(iii) To pass any other order or direction which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.

(iv) Allow the Original Application with costs."

4. Facts as pleaded by the petitioners in their Original Application in brief are to the effect that the petitioners are claiming themselves as commissioned vendors who worked in between 1976 to 1999 and thereafter they had been absorbed in the railway service but they have not given consequential benefit and due seniority.

5. It is further pleaded that the petitioners have earlier approached the Central Administrative Tribunal vide Original Application No.23/2003 disposed of vide order dated 13.1.2003 with the direction to the competent authority to decide representation of the petitioners in light of all the decisions of the Tribunal, High Court, Hon'ble Supreme Court and the relevant instructions / circulars issued by the Railway Board on the subject from time to time, but the same has not been considered.

6. And the petitioners were absorbed in the Establishment of Northern Railway on different posts in 2005, but their seniority etc. has not been given to them. So for redressal of their grievances, they had made representation to the authority concerned on 24.3.2015, however the same has not been considered. Hence, approached Central Administrative Tribunal for claiming reliefs as mentioned above.

7. After hearing the parties concerned the Central Administrative Tribunal has dismissed the condonation of delay application filed the petitioners by order dated 8.12.2017 with the following observations:-

"As per Section 21 of Administrative Tribunals Act, the limitation to file original application is one year from the date on which the cause of action accrued but in this case when cause of action accrued to the applicants has not been disclosed in original application. Even if it is taken for grant, that the limitation starts from the date of giving representation i.e. 24.3.2015, even then the original application has been filed beyond one year. The explanation of delay has not been given from the date of giving the representation or from the date of alleged absorption but from the date when the applicant/deponent alleged to hand over the paper to his advocate and that date mentioned in affidavit, given in support of application, is 15.09.2016, i.e. after more than one year from the date of giving the representation.

It is well settled principle of law that a dead and stale cause of action cannot be revived by giving repeated representations and Courts/Tribunals should not passed orders after closing their eyes from the  facts and circumstances of the case by directing the respondents to decide delayed representation.

We fortify our view with a recent judgment of Hon'ble Apex Court in Union of India versus Ashok Kumar Aggarwal, (2013) 16 SCC 147 wherein the Hon'ble Supreme Court held in para-18 as under;

18. A representation may be considered by the competent authority if it is so provided under the statutory provisions and the court should not pass an order directing any authority to decide the representation for the reasons that many a time, unwarranted or time-barred claims are sought to be entertained before the authority. More so, once a representation has been decided, the question of making second representation on a similar issue is not allowed as it may also involve the issue of limitation etc. (Vide: Rabindra Nath Bose & Ors. v. Union of India & Ors., AIR 1970 SC 470; Employees' State Insurance Corpn. v. All India ITDC Employees' Union & Ors., (2006) 4 SCC 257; A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors., AIR 2006 SC 1465; Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., AIR 2006 SC 1581; Eastern Coalfields Ltd. v. Dugal Kumar, AIR 2008 SC 3000; and Uma Shankar Awasthi v. State of U.P. & Anr., (2013) 2 SCC 435).

Almost similar views has been propounded by Hon'ble Supreme Court in several other judgments including Union of India versus M.K. Sarkar (2010) 2 SCC 59, Lanka Venkateswarlu versus State of A.P. (2011) 4 SCC 363 and C. Jacob versus Director of Geology and Mining & Ant. 2009 (10) SCC 115.

Having considered all the facts and circumstances of the case, we are of the firm view that the application for condonation of delay cannot be allowed in view of non-discloser of cause of action accrued to the applicants to file this original application. The applicants did not mentioned as to when and in what  manner they were inducted in the railway service and on what terms. In absence thereof, this petition cannot be entertain merely on the grounds that they have made representation in 2015.

It is also important to mention herein that the applicants themselves pleaded that in 2003 they filed original application wherein they were allowed to give representation for their grievance before railway authorities but whether the order has been complied with are not by the applicants by giving representation to the railway authorities has not been brought on record.

Moreover, due to non-discloser of definite cause of action and as per own admission of the applicants who are claiming their alleged absorption in pursuance of order passed on 12.7.2005, the applicants filed this original application almost after lapses of more than 10 years without any explanation, what to say of satisfactory explanation.

Moreover the persons likely to be effected with relief if granted to the applicant were also not made party to this OA. It is also well settled proposition of law that delayed claims should not be entertained where interest has been accrued to third parties on account of delay. The Hon'ble Apex Court in Union of India and others versus Tarsem Singh, (2008) 11 SCALE 594 held in Para 5 that though normally belated service claims will be rejected on the ground of delay where remedy sought by filing the writ petition or filing O.A. beyond limitation before Administrative Tribunals. However, there is one exception to this rule. The exception is that in cases which are related to continuing wrong, the limitation will accrue continuously and the claim based on continuing wrong can be entertained and the relief may be granted even if there is a delay in seeking the remedy. The Hon'ble Supreme Court further carved out another exception to this aforesaid exception and ruled that if the grievance in respect of any administrative decision affects several other persons and reopening of the issue will affect the settled rights of the third parties like issue of seniority, promotion etc, delay would render the claim stale and the law of limitation will apply. Relevant para 5 of the aforesaid judgment are extracted herein below for ready reference:

5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

Consequently, the Original Application is also not otherwise maintainable and cnanot be admitted for hearing due to aforesaid defect too."

8. Shri Ripu Daman Shahi, learned counsel for the petitioners while challenging the impugned order submits that the action on the part the Tribunal thereby rejecting the condonation of delay application is untenable in the eyes of law because as per facts of the case the petitioners are entitled for granting benefit of their past services which were rendered by them in the Northern Railway, Lucknow once they were absorbed in service, however same has not been done. In view of said facts, the action on the part of the Tribunal thereby rejecting  the petitioners' claim on the ground of delay is without jurisdiction and contrary to law.

9. The next argument advanced by learned counsel for the petitioners is that the order passed by Tribunal is contrary to the law laid down by Hon'ble Apex Court in the case of M.M.R. Khan and others versus Union of India and others reported in 1990 (Supp) Supreme Court Cases 191, wherein it has been held in para-39 which reads as under:

"The result, therefore, is that the workers engaged in the statutory canteens as well as those engaged in non- statutory recognised canteens in the Railway Establishments are railway employees and they are entitled to be treated as such. The Railway Board has already treated the employees of all statutory and eleven Delhi based non-statutory recognised canteens as railway employees w.e.f. October 22, 1980. The employees of the other non-statutory recognised canteens will, however, be treated as railway employees w.e.f. April 1, 1990. They would, therefore, be entitled to all benefits as such railway employees with effect from the said date, according to the service conditions prescribed for them under the relevant rules/orders".

10. Accordingly, it is submitted by Shri Ripu Daman Shahi, learned counsel for the petitioners that judgment passed by Central Administrative Tribunal is liable to be set aside.

11. Shri Neerav Chitranshi, learned counsel for the respondents while supporting the impugned judgment submits that in pursuance of the earlier order passed by Central Administrative Tribunal in Original Application No.23/2003 vide order dated 13.1.2003, the petitioners were absorbed on the post on which they were working in Northern Railway, thereafter at belated stage i.e. after more than 10 years, the petitioners have approached the Central Administrative Tribunal with a prayer that they had moved a representation to the concerned authorities of Railway for considering their past services on 24.3.2015, but the same was not considered but they have neither placed whether the said respondent was served nor copy of acknowledgement of representation dated 24.3.2005 of service of competent authority was brought on record. So, taking into consideration the said fact, the Tribunal has rightly rejected the petitioners' O.A. as barred by time, as such, there is no illegality in the impugned order passed by Central Administrative Tribunal, writ petition is liable to be dismissed.

12. We have heard learned counsel for the parties and gone through the record.

13. Core question which is to be considered in the present case is whether the action on the part of the Central Administrative Tribunal thereby rejecting the petitioners' claim barred by limitation is correct exercise or not.

14. Admittedly, in the present case, the cause of action which accrued to the petitioners, if any, was in the year 2005, when they were absorbed in the service but not given consequential benefit and due seniority in pursuance to earlier order passed by the Tribunal, however, since then  the petitioners did not take any steps for redressal of their grievances. And as per their case, they moved representation raising their grievances for considering their past services which they have rendered in the department prior to absorption, by making representation dated 24.3.2015 not considered, so the petitioners filed Joint Application under Section 19 of the Central Administrative Tribunal Act along with application for condonation of delay dated 10.10.2016, the Tribunal rejected the application for condonation of delay with a categorical findings which are reproduced hereinbelow:-

"13. As per Section 21 of Administrative Tribunals Act, the limitation to file original application is one year from the date on which the cause of action accrued but in this case when cause of action accrued to the applicants has not been disclosed in original application. Even if it is taken for grant, that the limitation starts from the date of giving representation i.e. 24.3.2015, even then the original application has been filed beyond one year. The explanation of delay has not been given from the date of giving the representation or from the date of alleged absorption but from the date when the applicant/deponent alleged to hand over the paper to his advocate and that date mentioned in affidavit, given in support of application, is 15.09.2016, i.e. after more than one year from the date of giving the representation.

14. It is well settled principle of law that a dead and stale cause of action cannot be revived by giving repeated representations and Courts/Tribunals should not passed orders after closing their eyes from the  facts and circumstances of the case by directing the respondents to decide delayed representation.'

15. Keeping in view the said reasoning given by the Tribunal as well as taking into consideration the laws mentioned while rejecting the petitioners' Original Application on the ground of limitation and law laid down by the Hon'ble Apex in the case of Union of India and others versus M.K. Sarkar (2010) 2 Supreme Court Cases, 59, wherein it has been held as under:

"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 can not 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.

16. Further, this Court while exercising power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.

17. In the case of Council of Civil Service Unions (CCSU) V. Minister 11 for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-

"Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety".

18. Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.

19. In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141, it was observed by Lord Hailsham as under:-

"Purpose of judicial review is to ensure that individual receives fair treatment and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide with its conclusion which is corrected in the eyes of the Court."

20. In the same case, Lord Brightman observed that:-

"Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

21. The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of U.P. V. Dharmendar Prasad Singh, AIR 1989 SC 997, and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-

"When the issue raised in judicial review is whether a 12 decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."

22. In the case of Tata Cellular V. Union of India (1994) 6 SCC 651 the Supreme Court stated that:-

"Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of 'illegality', 'irrationality' and 'procedural impropriety.' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making-body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.

Further if the decision making body goes outside its power or misconstrues the extent of its power, then the Courts can only interfere, if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it.

Thus the decision by the appropriate authority to grant or not to grant a particular relief to a person is not open to Judicial review by the High Court under Article 226 of the Constitution of India but the power of judicial review is circumscribed to scrutiny of the decision making process only and is to be exercised in the light of the principles laid down above and applying the said principles to the facts of the present case, I do not find any irregularity, infirmity in the impugned orders."

23. We do not find any illegality or infirmity in the impugned order passed by the Tribunal while rejecting the petitioners' Original Application on the ground of limitation as because this Court fortifies its view with a recent judgment of Hon'ble Apex Court in Union of India versus Ashok Kumar Aggarwal, (2013) 16 SCC 147 wherein the Hon'ble Supreme Court held in para-18 as under;

18. A representation may be considered by the competent authority if it is so provided under the statutory provisions and the court should not pass an order directing any authority to decide the representation for the reasons that many a time, unwarranted or time-barred claims are sought to be entertained before the authority. More so, once a representation has been decided, the question of making second representation on a similar issue is not allowed as it may also involve the issue of limitation etc. (Vide: Rabindra Nath Bose & Ors. v. Union of India & Ors., AIR 1970 SC 470; Employees' State Insurance Corpn. v. All India ITDC Employees' Union & Ors., (2006) 4 SCC 257; A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors., AIR 2006 SC 1465; Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., AIR 2006 SC 1581; Eastern Coalfields Ltd. v. Dugal Kumar, AIR 2008 SC 3000; and Uma Shankar Awasthi v. State of U.P. & Anr., (2013) 2 SCC 435).

24. For the foregoing reasons, the writ petition lacks merit and is accordingly dismissed.

Order Date :- 3.7.2018

KR

(Rekha Dikshit,J.) ( Anil Kumar,J.)