Dr Anil Kumar Agarwal vs State Of U.P. Thru. Prin. Secy. ...
2018 Latest Caselaw 408 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Case :- SERVICE BENCH No. - 28869 of 2017
 

 
Petitioner :- Dr Anil Kumar Agarwal
 
Respondent :- State Of U.P. Thru. Prin. Secy. Vanijaya Kar & Manoranjan Ka
 
Counsel for Petitioner :- Ajey Shanker Tewari,Anand Mani Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Virendra Kumar-II, J.)

1. This writ petition was dismissed for want of prosecution vide order dated 4.12.2017. Restoration Application (CMA No. 132244 of 2017) has been allowed vide order dated 19.3.2018 and writ petition has been restored to its original number.

2. Heard Mr. A.M. Tripathi, learned counsel for petitioner, learned Additional Chief Standing Counsel for the State and perused the material available on record.

3. This writ petition has been instituted on behalf of the petitioner for quashing of impugned judgment and order dated 26.7.2017 passed in Claim Petition No. 1419 of 2009 and order dated 6.11.2017 passed in review petition no. 78 of 2017 by the State Public Services Tribunal (hereinafter referred to as 'Tribunal').

4. It is pleaded in the grounds of writ petition that disciplinary action has been taken against the petitioner by not conducting the inquiry as provided under Rule 7 of the U.P. Government Servant (Discipline and Appeal Rules) 1999 (hereinafter referred to as Rule, 1999). The inquiry has been conducted by the inquiry officer without fixing date, time and place of inquiry and without giving opportunity of personal hearing. The petitioner has been punished vide orders dated 24.5.2001 and 22.8.2001 and punishment of censure as well as stoppage of two increments with cumulative effect has also been imposed against him. It is mentioned that review petition, preferred by the petitioner, has been rejected vide order dated 16.6.2009. Vide order dated 22.8.2001, his salary during suspension period has been withheld.

5. It is further submitted that claim petition was heard by the Tribunal and it erroneously held that claim petition preferred by the petitioner is barred by period of limitation while the petitioner has specifically stated in claim petition that claim petition being preferred challenging the order passed on review representation dated 22.11.2008, which was preferred by him under Rule 14 of the Rules, 1999.

6. It is contended that for preferring review, there is no limitation provided according to rules. The reviewing authority while passing order dated 16.6.2009 on merits, has not taken into consideration any plea for limitation. Learned Tribunal has dismissed the claim petition by stating that period between order of punishment and order of review will not be taken into account for the purpose of limitation, ignoring provisions of Section 14 of Limitation Act.

7. It is further submitted that according to provisions of Section 14 of the Limitation Act, in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, whether in a court on first instance or appeal or revision, against the defendant shall be excluded. Therefore, the period spent by the plaintiff in prosecuting in good faith in a court, which has no jurisdiction, is liable to be excluded, while computing the period of limitation for filing the suit. It is further contended that in review petition, the petitioner had taken a ground that order passed by him under Section 22 and 30 of the Trade Tax Act were found legal and therefore, he cannot be punished on the basis of that very quasi-judicial order passed by him.

8. It is further contended that the petitioner has also relied upon sub Section 6 of Section 4 of the U.P. Public Services Tribunal Act, 1976 (hereinafter referred to as Tribunal Act, 1976), which provides for the purposes under sub Section 5, a public servant shall be deemed to have been availed of all the remedies available to him if a final order has been passed by the State Government, and an authority or officer thereof or other person to pass such order under such rule or regulation or contract, rejecting any appeal preferred or representation made by such public servant in connection with the grievance. The petitioner has availed remedy of review representation as provided under Rule 14 of the Rule 1999. This fact was not considered by the Tribunal that this review was decided on 16.6.2009.

9. The petitioner relying upon decision of Division Bench of this Court in the case of Balram Gupta Vs. State of U.P. and others decided on 3.1.2014 passed in W.P. No. 1797 (SB) of 2013 has further submitted that

Tribunal merely decided the claim petition on ground of delay without taking into consideration the fact that limitation has been taken by the petitioner from the date when the review representation of the petitioner has been decided on 16.6.2009 and according to provisions of Section 14 of the Act, 1963. The claim petition preferred by the petitioner was well within time. The case law of Division Bench of this Court was relied upon during the proceedings of review petition preferred before the Tribunal, even then the Tribunal has ignored this fact.

10. Learned Additional Chief Standing Counsel has argued that the respondents in paragraph no. 3 of written statements have taken specific contention that the petitioner was punished vide order dated 24.5.2001 passed by the State of U.P. The petitioner preferred review representation on 22.11.2008, which was rejected vide order dated 16.6.2009. On the basis of the order passed on the memorial preferred by the petitioner, period of limitation cannot be enlarged and no concession can be given. The claim petition instituted by the petitioner was not maintainable as it was barred by period of limitation according to provisions of Section 5 of the Tribunal Act, 1976.

11. It is further argued that learned Tribunal has passed impugned judgment and order dated 26.7.2017 and order dated 16.6.2009 on review petition preferred by the petitioner after considering the provisions of Section 5 (b) of the Tribunal Act, 1976. The Tribunal has recorded specific finding that review application/ representation preferred by the petitioner according to Rule 14 does not come in the

category of memorial and rule 14 does not provide facility of review as of right. It is prerogative of the Governor to review his orders. Likewise, the Tribunal has dismissed review petition no. 78 of 2017 vide order dated 6.11.2017 after considering the provisions of Section 5 (6) and 5 (b) of the Tribunal Act, 1976. The Tribunal has relied upon a decision of Hon'ble Apex Court in the case of Smt. Meera Bhanja (Smt.) Vs. Nirmala Kumar Choudhary (Smt.) (1995) 1 SCC 170 and decision of this Court in the case of Lal Mohammad Vs. S.D.O. Bareilly 1959 ALJ 223 and Sri Ram Vs. Deputy Director, Consolidation Basti and others 2010 (4) ADJ 53 and found that scope of review is limited and matter cannot be reconsidered on merits on the basis of review petition.

12. We have perused the record and arguments put forth by both the parties. We have also perused the impugned judgment and order dated 26.7.2017 and order dated 6.11.2017 passed on review petition preferred by the petitioner.

13. The Tribunal on the basis of contention of the respondents regarding maintainability of claim petition being barred by period of limitation have recorded finding that Section 5 (b)(i) and (ii) of Tribunal Act, 1976 provides period of one year for institution of claim petition and for computing the period of limitation, period spent during proceedings of appeal, revision or other application shall not be excluded.

14. The Tribunal has recorded specific finding that claim petition was instituted by the petitioner after seven years after passing of punishment order dated 24.5.2001, therefore, claim petition was dismissed by the Tribunal vide impugned judgment and order dated 26.7.2017. The Tribunal vide order dated 6.11.2017 has dismissed the review petition preferred by the petitioner after considering the provisions of Section 5 (b)(ii) and 5 (6) of the Tribunal Act and scope of review on the basis of the case law mentioned above.

15. Learned counsel for petitioner has relied upon the decision of Division Bench of this Court delivered in the case of Samarjeet Singh Vs. State of U.P. and others reported in [2006 (24) LCD 122] in which this Court has held in paragraph nos. 18, 20 and 21 as under:-

18. The aforesaid provision provides 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 of the Act may be made within the period prescribed by that Act, or within one year next after the commencement of the U.P. Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier. The aforesaid provisions make it clear that while computing the period of limitation, the period of limitation starts from the date on which the public servant makes a representation or prefers an appeal, revision or any other petition and comes to an end when he acquires knowledge of the final order passed. All such period thus has to be excluded while computing limitation. In case final order is passed after one year or two years or so on and so forth, the limitation would be counted from the date of passing of the original order and by excluding the entire period commencing from the date of making the appeal or representation, if provided under rules, and the date when the final orders passed on such appeal or representation come within his knowledge.

20. In the absence of a final order having been passed by the appellate authority it cannot be said that the claim petition would be barred by limitation if the claimant does not avail the liberty given in the provision aforesaid. If statutory appeals or representations are kept pending for years together and no order is passed within six months from the date on which such appeal was preferred or representation was made, the Tribunal ought not to reject the claim petition, on the ground that the public servant should have given a written notice by registered post, requiring such competent authority to pass the order within 30 days, and thus has not filed the claim petition within the limitation prescribed.

21. In a case wherein the appeal or revision remains unattended for any period beyond six months or one year, the only requirement could be that such a claimant gives the required notice as given in proviso to Sub-section (6) of Section 4 and thereafter to approach the Tribunal whether thereafter, the appeal or revision is decided or not, but this requirement of giving notice in a matter which has been kept pending for years together by the appellate authority, if is not complied with by the complainant, the Tribunal may not dismiss the claim petition summarily but may give an opportunity to the claimant to give a notice as required within a given time and defer the hearing for such period or the Tribunal, or as per the facts of the case, may entertain the petition even without any such notice being given by the public servant as the rule of exhaustion of departmental remedies is itself discretionary in terms of subsection (5) of Section 4, wherein it has been said that 'ordinarily' the Tribunal would not entertain the petition, unless departmental remedy stands exhausted.

16. Learned counsel for petitioner has also relied upon a Division decision of this Court in the case of Balram Gupta (supra), this Court has observed as under:-

"In view of the provisions of Section 5 (1) (b) of the Act the principles enumerated in Section 14 of the Limitation Act is fully applicable to the reference made under Section 4 of the Act.

There is no dispute that the petitioner was prosecuting with due diligence his appeal, review, revision etc. against the impugned order of punishment dated 30.07.2002. It is also not in dispute that the appeal, review, revision etc. preferred by the petitioner were entertained by the authorities concerned and were dismissed on merits. After the revision preferred by the petitioner was rejected on 19.08.2009 the petitioner promptly preferred the claim petition before the learned Tribunal in the year 2009 itself. The said claim petition was dismissed on 04.03.2012 on the ground of limitation. Admittedly the opposite parties did not raise the plea of limitation before the learned Tribunal. In the circumstances, it is too much for the petitioner to be driven out of Court on the ground of limitation after a period of eleven years.

In the facts and circumstances of the case, we are of the firm opinion that the period spent by the petitioner in prosecuting, in good faith, the appeal, review, revision etc. before the authorities concerned against the impugned order of punishment dated 03.07.2002 was liable to be excluded while computing limitation for filing the claim petition."

17. We have perused provision of Section 4 and 5 of Tribunal Act, 1976, which reads as under:-

"4. Reference of claim to Tribunal.-

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

(2) ......................

(3) ......................

(4) Where a reference has been admitted by the Tribunal under sub-section (3), every proceeding under the relevant service rules or regulation or any contract to redressal of grievances in relation to the subject-matter of such reference pending immediately before such admission shall abate, and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules, regulations or contract.

5. .......................

6. .........................

Provided that where no final order is made by the State Government, authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.

5. Powers and procedure of the Tribunal.-

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

(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-

(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;

(ii) ......................

18. Section 4 of the Tribunal Act, 1976 provides under clause (1) that subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance.

19. Section 4 clause (5) of the said Act provides that the Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievance.

20. The proviso of Section 4 Clause (6) provides that for the purpose of sub-Section 5 a public servant shall be deemed to have availed of all the remedies available to him if no final order has been made within six months by the State Government, an authority or officer thereof or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant.

21. On perusal of these provisions, it is crystal clear that reference/claim petition under Section 4 of Tribunal Act, 1976 is considered in nature of civil suit and Section 5 of Limitation Act 1963 is not applicable to the such reference or civil suit. Clause (1) (b) (i) of Section 5 of Tribunal Act, 1976 provides period of limitation for one year to institute reference/claim petition before the Tribunal. On conjoint reading of provisions of Section 5 (1)(b)(ii) and Section 4 clause (6) proviso, it reveal that if any public servant prefers an appeal and and in such appeal, no final order is made, by the State Government, authority, or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant, within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice through registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.

22. We have perused exposition of law of S.S. Rathore Vs. State of Madhya reported in (1989) 4 SCC 582, Hon'ble Supreme Court has held in paragraphs-14 to 23 as under:-

14. The distinction adopted in Mohammad Nooh's case between a court and a tribunal being the appellate or the revisional authority is one without any legal justification. Powers of adjudication ordinarily vested in courts are being exercised under the lay by tribunals and other constituted authorities. In fact, in respect of many disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in tribunals and authorities. That being the position, we see no justification for the distinction between courts and tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant's appeal was dismissed on 31.8.1966.

15. In several State the Conduct Rules for Government servants require the administrative remedies to be exhausted before the disciplinary orders can be challenged in court. Section 20(1) of the Administrative Tribunals Act, 1985 provides :

20. (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.

16. The Rules relating to disciplinary proceedings do provide for an appeal against the orders of punishment imposed on public servants. Some Rules provide even a second appeal or a revision. The purport of Section 20 of the Administrative Tribunals Act is to give effect to the Disciplinary Rules and the exhaustion of the remedies available thereunder is a condition precedent to maintaining of claims under the Administrative Tribunals Act. Administrative Tribunals have been set up for Government servants of the center and several States have already set up such Tribunals under the Act for the employees of the respective States. The law is soon going to get crystallised on the line laid down under Section 20 of the Administrative Tribunals Act.

17. In this background if the original order of punishment is taken as the date when cause of action first accrues for purposes of Article 58 of the Limitation Act, great hardship is bound to result. On one side, the claim would not be maintainable if laid before exhaustion of the (remedies; on the other,) if the departmental remedy though availed is not finalised within the period of limitation, the cause of action would no more be justifiable having become barred by limitation. Redressal of grievances in the hands of the departmental authorities take an unduly long time. That is so on account of the fact that no attention is ordinarily bestowed over these matters and they are not considered to be governmental business of substance. This approach has to be deprecated and authorities on whom power is vested to dispose of appeals and revisions under the Service Rules must dispose of such matters as expeditiously as possible Ordinarily, a period of three to six months should be the outer limit. That would discipline the system and keep the public servant away from a protracted period of litigation.

18. We are satisfied that to meet the situation as has arisen here, it would be appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant service Rules as to redressal are disposed of.

19. The question for consideration is whether it should be disposal of one appeal or the entire hierarchy of reliefs as may have been provided. Statutory guidance is available from the provisions of Sub-sections (2) and (3) of Section 20 of the Administrative Tribunals Act. There, it has been laid down :

20.(2) For the purposes of Sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,-

(a) if a final order has been made by the Government or other authority or Officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance : or

(b) Where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.

(3) For the purposes of Sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial.

20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

21. It is appropriate to notice the provision regarding limitation under Section 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under Sub-section (3). The Civil Court's jurisdiction has been taken away by the Act and therefore as far as Government servants are concerned, Article 58 may not be evocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.

22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation.

23. In view of what we have said above, Goel's case must be taken to have not been correctly decided.

The petitioner in his claim petition no. 1419 of 2009 has averred in paragraph no. 5.10 as follows:-

"5.10. That the cause of action arose to the petitioner on 24.5.2001 when the impugned punishment order was issued, further on 22.8.2001 when the salary of suspension period of the petitioner has been withheld and further on 16.6.2009, when the review preferred by the petitioner dated 22.11.2008 has been rejected by the authority concerned in a most arbitrary and illegal manner."

23. On perusal of this contention, it reveal that the

petitioner himself preferred review application on 22.11.2008 with delay of about seven and a half year after passing of punishment order dated 24.5.2001. The argument of learned counsel for petitioner is misconceived that there is no period of limitation prescribed according to Rule 14 of the Rules 1999 for preferring review before the competent authority against punishment order passed against a delinquent employee. Hon'ble Apex Court in S.S. Rathore (supra) has held in paragraph-22 that submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation.

24. On the basis of review representation dated 22.11.2008, period of limitation could not be extended/enlarged in favour of the petitioner. This review representation was itself preferred by the petitioner with delay. The petitioner cannot take benefit of his conduct of laches. Undue delay or laches is one of the factors, which is to be borne in mind while exercising discretionary powers under Article 226 of the Constitution.

25. On the point of period of limitation, Hon'ble Apex Court in the case of Karnataka Power Corpn. Ltd. V. K. Thangappan, reported in (2006) 4 SCC 322 , has held in para 6,7 and 10 as under-

6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out inDurga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co.v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:

"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."

10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [(1967) 2 SCR 70 : AIR 1967 SC 993] . This was reiterated in Rabindranath Bose case [(1970) 1 SCC 84 : AIR 1970 SC 470] by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik [(1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639] also.)"

26. In the case of Shiv Dass v. Union of India, reported in (2007) 9 SCC 274, the Apex Court held in para 8 and 9 as under -

8. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [AIR 1967 SC 993] . There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik[(1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639] .)

27. In the case of C. Jacob v. Director of Geology and Mining, reported in (2008) 10 SCC 115, the Apex Court held in para 8 to 11 as under-

8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.

9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. 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.

11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. 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 kind of "acknowledgement of a jural relationship" to give rise to a fresh cause of action.

28. The Division Bench of this Court in which one of us (Hon'ble Virendra Kumar-II,J.) was a member in a judgment passed in Writ Petition No. 12411 (SB) of 2017 (State of Uttar Pradesh and another Vs. Eklavya Kumar), in para-5 has observed as under:

"5. Undue delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. Following the cases of Government of West Bengal Vs. Tarun K. Roy and others 2004(1) SCC 347 and Chairman U.P. Jal Nigam and another Vs. Jaswant Singh and another 2006(11) SCC 464, the Apex Court in New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 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 recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423."

29. In the case of V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao, reported in (2005) 4 SCC 613 has held as under:

24. In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs 7,09,835 nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned Senior Counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remaining amount.

30. In the case of Udhav Singh v. Madhav Rao Scindia, reported in (1977) 1 SCC 511 Hon'ble the Apex Court has held as under:

24. Nor was the respondent obligated to raise this objection only by his written statement, and in no other mode. Rule 2 of Order 8 of the Code of Civil Procedure is a rule of practice and convenience and justice. This procedural rule is to subserve and not enslave the cause of justice. It lays down broad guidelines and not cast-iron traps for the defendant in the matter of drawing up his statement of defence. It says:

"The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable, in point of law, and all such grounds of defence as, if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint, as for instance fraud, limitation, release, payment, performance, or facts showing illegality."

25. The key-words are those that have been underlined (herein in bold type). These words denote the broad test for determining whether a particular defence plea or fact is required to be incorporated in the written statement. If the plea or ground of defence "raises issues of fact not arising out of the plaint", such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint. Thus, a plea of limitation that can be substantiated without any evidence and is apparent on the face of the plaint itself, may be allowed to be taken at any stage of the suit.

31. In the case of Surinder Singh v. Kapoor Singh, (2005) 5 SCC 142 Hon'ble the Apex Court has held as under:

8. Section 12(3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the appellant herein was not authorised by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regards performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff claiming the relief unless the defendant establishes prejudice.

13. The question which deserves consideration now is as to whether the application for amendment of the plaint filed by the plaintiff-respondents should be allowed. Sub-section (3) of Section 12 does not lay down any limitation for filing such an application. Such an application can be filed at any stage of the proceedings and in that view of the matter an application even before this Court would be maintainable.

32. In the case of Binod Bihari Singh v. Union of India, reported in (1993) 1 SCC 572 Hon'ble the Apex Court has held as under:-

10. After giving our anxious consideration to the facts and circumstances of the case, we do not find any reason to interfere with the decision of the High Court. In our view, the High Court has rightly held that the application made by the appellant was an application for directing the arbitrator to file the award in Court so that such award is made a Rule of Court. In this case, there was no express authority given by the arbitrator to the applicant to file the award to make it a Rule of Court although a signed copy of the award was sent to the applicant. The forwarding letter clearly indicates that the award was sent for information. Accordingly, the decision of this Court made in Kumbha Mawji case [AIR 1953 SC 313] is applicable. The High Court has given very cogent reasons which, we have indicated in some details, for not accepting the case of the appellant that he had received a signed copy of the award and the forwarding letter some time in May 1965 and we do not find any reason to take a contrary view. The applicant has not produced the registered cover received by him which would have established the actual date of the receipt of the postal cover by the applicant convincingly. We are also not inclined to hold that the delay in presenting the application deserves to be condoned in the facts and circumstances of the case. The appellant has taken a very bold stand that he had received the signed copy of the award only in May 1965 and only within three weeks of such receipt, he had filed the application. On the face of such statement, the plea of ignorance of the change in the Limitation Act need not be considered and accepted. As the case sought to be made out by the appellant that he had received the signed copy of the award only in May 1965 has not been accepted, and we may add, very rightly by the court, the question of condonation of delay could not and did not arise. In our view, it is not at all a fit case where in the anxiety to render justice to a party so that a just cause is not defeated, a pragmatic view should be taken by the court in considering the sufficient cause for condonation of delay under Section 5 of the Limitation Act. Coming to the contention of Mr Ranjit Kumar that to defeat a just claim of the appellant, the ignoble plea of bar of limitation sought to be raised by the respondent should not be taken into consideration, we may indicate that it may not be desirable for the government or the public authority to take shelter under the plea of limitation to defeat a just claim of a citizen. But if a claim is barred by limitation and such plea is raised specifically the court cannot straightaway dismiss the plea simply on the score that such plea is ignoble. A bar of limitation may be considered even if such plea has not been specifically raised. Limitation Act is a statute of repose and bar of a cause of action in a court of law, which is otherwise lawful and valid, because of undesirable lapse of time as contained in the Limitation Act, has been made on a well accepted principle of jurisprudence and public policy. That apart, the appellant, in this case, having taken a false stand on the question of receipt of the signed copy of the award to get rid of the bar of limitation, should not be encouraged to get any premium on the falsehood on his part by rejecting the plea of limitation raised by the respondent. We may also indicate here that the High Court is justified in its finding that the objection petition has been filed within time by the respondent and the service of the copy of the application made by the appellant on the counsel of the respondent who had appeared in an earlier proceeding did not constitute a notice as contemplated under Article 119(b) of the Limitation Act. In the aforesaid circumstances, the appeal must fail and is dismissed but we make no order as to costs.

33. In the case of Pawan Kumar Ralli v. Maninder Singh Narula, reported in (2014) 15 SCC 245, Hon'ble the Apex Court has held as under:

19. However, when the issue of limitation had come up for the first time before the High Court, it ought to have dealt with the same on merits as per proviso to Section 142(b) of the Act. The said proviso appended to clause (b) of Section 142 of the Act was inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and the legislative intent was, no doubt, in order to overcome the technicality of limitation period. The Statement of Objects and Reasons appended to the Amendment Bill, 2002 suggests that the introduction of this proviso was to provide discretion to the court to take cognizance of offence even after expiry of the period of limitation (see MSR Leathers v. S. Palaniappan[MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424 : (2013) 2 SCC (Cri) 458] ). Only with a view to obviate the difficulties on the part of the complainant, Parliament inserted the proviso to clause (b) of Section 142 of the Act in the year 2002. It confers a jurisdiction upon the court to condone the delay (see Subodh S. Salaskar v. Jayprakash M. Shah [Subodh S. Salaskar v.Jayprakash M. Shah, (2008) 13 SCC 689 : (2009) 3 SCC (Cri) 834] ).

20. It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24-5-2012 but not mentioned about the handwritten note dated 27-4-2012. Basing on the said averment, the learned trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and the Court exercising the discretion to condone the delay did not arise at all.

21. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the special leave petition that he should have been allowed to move an application for condonation of delay before the trial court as the respondent has not suffered any prejudice by reason of 25 days' delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits.

22. In view of the settled principles of law in Rakesh Kumar Jain [Rakesh Kumar Jain v. State, (2000) 7 SCC 656 : 2001 SCC (Cri) 208] , MSR Leathers [MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177 : (2013) 1 SCC (Civ) 424 : (2013) 2 SCC (Cri) 458] and Subodh S. Salaskar [Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689 : (2009) 3 SCC (Cri) 834] and in the peculiar facts and circumstances of the case, we are of the considered opinion that the High Court was not right in quashing the complaint merely on the ground that complaint is barred by limitation, that too a plea which was taken for the first time before the High Court. On the other hand, the High Court ought to have remanded the matter to the trial court for deciding the issue of limitation. At the same time, we want to make it very clear that by this observation we are not laying down a legal proposition that without even filing an application seeking condonation of delay at an initial stage, the complainant can be given opportunity at any stage of the proceeding. As already discussed by us in the foregoing paragraphs, we have come to the irresistible conclusion, to afford an opportunity for the complainant to move an application seeking condonation of delay, under the peculiar facts and circumstances of the case.

23. For all the aforesaid reasons, in order to meet the ends of justice, we exercise our discretion under Article 142 of the Constitution and set aside the impugned judgment [Maninder Singh Narula v. Pawan Kumar Ralli, (2013) 1 MWN (Cri) DCC 142 (Del)] of the High Court quashing the criminal proceedings and restore the criminal proceedings before the trial court. The appellant is permitted to file an application for condonation of delay before the trial court and if such an application is filed, the trial court shall be at liberty to consider the same on its own merits, without being impressed upon by any of the observations by this Court, and pass appropriate orders.

34. Hon'ble the Apex Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 has held as under:

8. The observations, as above, with due respect to the High Court are based on a certain misconception of facts. While it is true that the plea of limitation ought to be raised at the first available opportunity but that does not mean and imply that the party raising it even during the course of hearing would be barred therefrom. Limitation is a mixed question of law and fact. Time-barred claim would not even be entertained by a civil court without there being any opportunity of filing a pleading by the respondents or the defendants in a civil suit. The fact remains that the respondents (sic appellants) herein did in fact agitate the point of limitation during the course of hearing and also had taken the plea in their affidavit-in-reply and prior to the commencement of the hearing of the matter. The High Court was thus clearly in error in holding without any further factual detail that the cause of action for the challenge to the notification under the Maharashtra Act of 1966 continues even on the date of filing of the writ petition. Mr Venugopal, the learned Senior Counsel appearing for the respondents contended that since this is a continuing wrong, the question of the claim being time-barred or the conduct being barred under the laws of limitation does not and cannot arise. Mr Venugopal further contended that there are mala fides involved and mala fides ought not to be restricted to be challenged under the garb of limitation.

14. The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise. The High Court as a matter of fact lost sight of the fact that since the year 1952, the land was specifically reserved for public purposes of a school playground and roads in the development plan and by reason therefor, the notification to acquire the land has, therefore, been issued under the provisions of the Act as stated above.

35. Hon'ble the Apex Court in the case of Hari Ram v. Jyoti Prasad, reported in (2011) 2 SCC 682 has held as under:

13. In the light of the aforesaid submissions of the counsel appearing for the parties, we also perused the records very carefully. We would first deal with the plea of limitation as raised before us by the appellant. The records placed before us do disclose that the appellant in his written statement took up a plea that the suit is barred by limitation. However, despite the said fact no issue was framed nor was any grievance made by the appellant for non-framing of an issue of limitation. On going through the records, we do not find that the appellant has made any submission before the trial court as also before the first appellate court regarding the plea of limitation. Such a plea is seen to have been made before the High Court.

14. The said plea which was made before the High Court was considered at length by the High Court and the High Court held that although such a plea was not raised either before the trial court or before the appellate court, the same could be raised before the High Court in view of the provisions of Section 3 of the Limitation Act which places an obligation upon the court to discuss and consider such a plea despite the fact that no such plea was raised and argued before the trial court as also before the first appellate court. The High Court after considering the aforesaid plea held that the suit cannot be said to be barred by limitation as an encroachment on a public street is a continuing wrong and therefore, there exists a continuing cause of action.

15. The records disclose that initially a complaint under Section 133 CrPC was filed which was pursued with all sincerity up to the High Court. But the High Court held that the dispute between the parties could be better resolved if a proper civil suit is filed and when evidence is led with regard to the disputed questions of fact. We find from the records that immediately thereafter the aforesaid suit was filed seeking issuance of a mandatory injunction. In view of the aforesaid facts and also in view of the fact that encroachment on a public street by any person is a continuing cause of action, we find no merit in the said contention

16. Any act of encroachment is a wrong committed by the doer. Such an encroachment when made to a public property like encroachment to public road would be a graver wrong, as such wrong prejudicially affects a number of people and therefore is a public wrong. So long any obstruction or obstacle is created to free and unhindered access and movement in the road, the wrongful act continues thereby preventing the persons to use the public road freely and unhindered. Therefore, that being a continuing source of wrong and injury, cause of action is created as long as such injury continues and as long as the doer is responsible for causing such injury.

36. Hon'ble the Apex Court in the case of Pandurang Dhondi Chougule v. Maruti Hari Jadhav, (1966) 1 SCR 102 has held as under:-

10. The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As clauses (a), (b) and (e) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under Section 115.

37. In the case of Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, reported in (2015) 6 SCC 412 Hon'ble the Apex Court has held as under:-

50. In Manick Chandra Nandy v. Debdas Nandy [(1986) 1 SCC 512] , this Court, while considering the nature and scope of High Court's revisional jurisdiction in a case where a plea was raised that the application under Order 9 Rule 13 was barred by limitation, held that a plea of limitation concerns the jurisdiction of the court which tries a proceeding for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court.

38. In the case of Ramesh B. Desai v. Bipin Vadilal Mehta, reported in (2006) 5 SCC 638, Hon'ble the Apex Court has held as under:

19. A plea of limitation cannot be decided as an abstract principle of law divorced from facts as in every case the starting point of limitation has to be ascertained which is entirely a question of fact. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order 7 Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two-Judge Bench of this Court to which one of us was a member (Ashok Bhan, J.) in Balasaria Construction (P) Ltd. v.Hanuman Seva Trust [(2006) 5 SCC 658, below] it was held: (SCC p. 661, para 8).

"8. After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, framing of an issue of limitation and taking of evidence. Question of limitation is a mixed question of law and fact. Ex facie in the present case on the reading of the plaint it cannot be held that the suit is barred by time."

This principle would be equally applicable to a company petition. Therefore, unless it becomes apparent from the reading of the company petition that the same is barred by limitation the petition cannot be rejected under Order 7 Rule 11(d) CPC.

39. In the case of T. Kaliamurthi v. Five Gori Thaikkal Wakf, reported in (2008) 9 SCC 306 Hon'ble the Apex Court has held as under:-

35. However, in the present case, it would be expedient that before we determine whether or not Section 107 applies to pending proceedings also thereby making the bar of limitation non est, we should decide whether Article 96 of the Limitation Act, 1963 would apply or Article 134-B of the Limitation Act, 1908 would apply in order to ascertain whether the suits actually stood barred by limitation. It was the finding of the first appellate court that the suits were filed within the limitation period as prescribed under Article 96 of the First Schedule to the Limitation Act, 1963 whereas the trial court had held that the suits were barred by limitation in view of Article 134-B of the Limitation Act, 1908. From a careful consideration of the above aspect of the matter, in our view, the first appellate court was not justified in holding that the suits were filed within the period of limitation as prescribed under Article 96 of the Limitation Act, 1963. In our view, the view taken by the trial court was the correct one and Article 134-B of the Limitation Act, 1908 would apply. We have carefully noted two articles viz. Article 96 of the Limitation Act, 1963 and Article 134-B of the Limitation Act, 1908 and we find that they are different from each other insofar as while under the 1908 Act 12 years was to run from the death, resignation or removal of the transferor, under the 1963 Act the said period of 12 years was to run from the date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment, whichever was later.

36. Section 31 of the Limitation Act, 1963 provides that nothing in the Limitation Act, 1963 shall enable any suit, appeal or application to be instituted, provided or made, for which the period of limitation prescribed by the Limitation Act, 1908 expired before the commencement of this Act. Section 31 of the 1963 Act assumes great importance which was completely overlooked by the first appellate court. Admittedly, in the present case, the suits were filed long after the death of the muthavalli and the suit properties were transferred as far back as in 1927, therefore, the suits were barred under the Limitation Act, 1908. In other words, in the present case, the period of limitation prescribed under the 1908 Act had already expired before the commencement of the 1963 Act and, therefore, in view of the clear mandate of Section 31 of the Limitation Act, 1963, suits could not have been instituted by taking the plea that the same was within the limitation under the 1963 Act.

38. The Limitation Act, 1908 was amended on the basis of the third report of the Law Commission and Limitation Act 36 of 1963 was enacted. The Wakf Act, 1954 as originally enacted did not touch the question of limitation. Suits to recover immovable properties comprised in a wakf were governed by Articles 134-A and 134-B of the Limitation Act, 1908 inserted by Act 1 of 1929 and the residuary Articles 142 and 144 of the said Act. Articles 94 and 96 of the Limitation Act, 1963 correspond to Articles 134-A and 134-B of the Limitation Act, 1908, while Articles 64 and 65 of the Limitation Act, 1963 correspond to Articles 142 and 144 of the Limitation Act, 1908. The corresponding old law was Section 66-G of the Wakf Act, 1954 inserted by the Amendment Act 69 of 1984.

40. In this background, let us now see whether this section has any retrospective effect. It is well settled that no statute shall be construed to have a retrospective operation until its language is such that would require such conclusion. The exception to this rule is enactments dealing with procedure. This would mean that the law of limitation, being a procedural law, is retrospective in operation in the sense that it will also apply to proceedings pending at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right.

40. In the case of Municipal Corpn. v. Niyamatullah, reported in (1969) 2 SCC 551 Hon'ble the Apex Court has held as under:-

10. The provisions of the Code of Civil Procedure enjoin that if any special plea of limitation is a defence such a defence of limitation should be pleaded. In the present case, the Municipal Corporation did not plead Section 135 of the Indore Municipal Act, 1909 as a defence. Such a plea was not taken in the pleadings or in the trial court and the District Judge should have not entertained such a plea. The provisions contained in Section 135 of the Indore Municipal Act will be applicable to things done under the Act. It is manifest that in the present case the order of dismissal passed by Shri Ghatpande was beyond his jurisdiction and is therefore not an act done under the Act.

11. Furthermore, Section 8(1)(b) of the Indore Act says that the Council shall bear the name of the Municipal Council of the Indore City and be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued. A distinction is to be noticed between suing the Municipal Council of the Indore City as contemplated in Section 8(1)(b) of the Act and suits against the Commissioner or any officer or servant of the Municipality or any person acting under the direction of the Government or the Commissioner as contemplated in Section 135 of the said Municipal Act. One of the purposes of Section 135 of the Municipal Act is to afford an opportunity to the persons mentioned in the section to make amends within the period of notice. The suit that was filed in the present case was not in respect of any act done or purported to be done under the Act.

12. This Court in the case of Bharat Kala Bhandar Ltd. v. Municipal Committee, Bhamangaon [(1965) 3 SCR 499] examined the provisions of Section 48 of the Central Provinces and Berar Municipalities Act, 1922 which was to the effect that no suit shall be instituted against any Committee or any member, officer or servant thereof or any person acting under the direction of any such committee, member, officer or servant for anything done or purporting to be done under the Act, until the expiration of two months next after notice in writing stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims Section 48 of the said Central Provinces and Berar Municipalities Act further provided that every such suit shall be dismissed unless it was instituted within six months from the date of the accrual of the cause of action. The appellant in that case contended that it was a case of recovery of an illegal tax and therefore a claim for its refund fell outside the provisions of Section 48 of the said Act. The respondent, on the other hand, contended there that the collection of tax was not without jurisdiction but only irregular and therefore the suit would be in respect of a matter purporting to be done under the Act. This Court held that where, power existed to assess and recover a tax up to a particular limit the assessment or recovery of an amount in excess was wholly without jurisdiction. To such a case, the statute under which action was purported to be taken could afford no protection. On logic and principle the same reasoning applies to the provisions contained in Section 135 of the Indore Municipal Act, 1909 with the result that the suit in the present case is not within the mischief of Section 135 of the Indore Municipal Act.

41. On the basis of exposition of law propounded by Hon'ble Apex Court, the petitioner was obliged to institute claim petition before the Tribunal after passing of punishment order dated 24.5.2001 within a year. He has not preferred review/representation within a reasonable time. If review representation preferred by the petitioner would not have been decided within six months then according to exposition of law in paragraph-22 of S.S. Rathore (supra), the right to sue shall first accrue. The cause of action could not be accrued as review representation was preferred on 22.11.2008 by the petitioner under rule 14 of the Rules, 1999 with a considerable delay of seven and a half year.

42. We have perused Rule 11 and 14 of the Rules, 1999.

Rule 11 of Rules, 1999 reads as under:-

"11. Appeal.-(1) Except the orders passed under these rules by the Governor, the Government Servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority.

(2) The appeal shall be addressed and submitted to the Appellate Authority. A Government Servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant.

(3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed.

(4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily."

43. According to Rule 11 (4) of the Rules, 1999, appeal shall be preferred within 90 days from the date of communication of impugned order and appeal preferred after the said period shall be dismissed summarily.

44. We have perused Rule 14 of Rules 1999 relied upon by learned counsel for petitioner, which provides as under:-

"14. Review.- The Governor may at any time, either on his own motion or on the representation of the concerned Government servant, review any order passed by him under these rules, if it has brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing the impugned order or any material error of law occurred which has the effect of changing the nature of the case."

45. Section 14 of the Indian Limitation Act, 1963 relied upon by learned counsel for petitioner provides as follows:-

14. Exclusion of time of proceeding bona fide in court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has bee prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, form defect of jurisdiction or other cause of a like nature, is unable to entertain it.

2. In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, form defect of jurisdiction or other cause of a like nature, is unable to entertain it.

3. Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other case of a like nature.

Explanation.-For the purposes of this section,-

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."

46. We have perused claim petition instituted by the petitioner before the Tribunal.

47. The petitioner in paragraph no. 1 and 4.47 has averred that punishment orders dated 24.5.2001 and 22.8.2001 were passed against him. He preferred review on 22.11.2008 challenging these orders, which was decided vide order dated 16.6.2009. In paragraph no. 4.47, it is averred that against the order of punishment, the petitioner preferred a review on 22.11.2008 under Rule 14 of the Discipline & Appeal Rules, 1999. It is also contended that this rule provides that the Governor at any time, either on his own motion or on the representation of the concerned government servant, review any order passed by him under these Rules. The review preferred by the petitioner on 22.11.2008 has been rejected by the authority concerned vide order dated 16.6.2009 in a most arbitrary and illegal manner without assigning any reason of rejecting the same and without application of mind.

48. on the basis of these pleadings, it reveal that the petitioner did not choose to prefer appeal against his punishment orders dated 24.5.2001 and 22.8.2001. According to rule 11 of Rule, 1999, this appeal should have been preferred by the petitioner within 90 days. This period has expired long before. There is no substance in argument of learned counsel for petitioner that no limitation is provided for preferring revision or review. The reasonable time for preferring revision or review would be 90 days on the analogy of provisions of Rule 11 (4) of the 1999 Rules. The petitioner has not preferred review within reasonable time and review was itself suffers from undue delay and laches on the part of the petitioner.

49. The petitioner of the case of Balram Gupta (supra) was punished vide order dated 30.7.2002 and he preferred appeal on 5.10.2002, which was rejected by appellate authority on 10.3.2003. He also preferred review challenging order dated 10.3.2003 immediately, which was also rejected. On the basis of revision preferred by the petitioner on 5.11.2007, appellate order dated 10.3.2003 passed by respondent was set aside and matter was remanded vide order dated 20.2.2008. On 19.9.2008, his appeal was again rejected. The petitioner again preferred revision challenging appellate order dated 19.9.2008, which was also rejected on 19.8.2009.

50. Therefore, factual matrix of this case law reveal that petitioner of above-mentioned case law acted upon immediately by challenging his punishment orders. Whereas, the writ petitioner of present case preferred review challenging his punishment orders dated 24.5.2001 and 22.8.2001 after seven and a half years.

51. Likewise the petitioner in the case of Samarjeet Singh (supra) was punished/dismissed from service vide order dated 15.6.1987 and he preferred statutory appeal on 30.6.1987. Therefore, immediate action was taken by him.

52. The factual matrix of these case laws is different and does not help to the petitioner in the instant case in any way. Therefore in the instant case, the petitioner is responsible for undue delay and laches on his part.

53. As far as the petitioner has relied upon the provisions of Section 14 of Limitation Act, 1963, it is relevant to mention here that the petitioner did not prefer any statutory appeal provided under rule 11 of the Rules, 1999 and for the first time, he preferred review before the competent authority on 22.11.2008 with undue delay and laches on his part. Therefore, it cannot be said that he was pursuing his review in good faith before the wrong forum, as review was preferred before the competent authority, which was not having any defect of jurisdiction or other cause of like nature, was unable to entertain.

54. The petitioner has not disclosed this fact in his claim petition that his punishment orders dated 24.5.2001 and 22.8.2001 were communicated to him on which date or with delay of how much period. It is nowhere pleaded by the petitioner that review was preferred by him on 22.11.2008 due to service of impugned punishment orders with delay. Therefore, no benefit of provisions of Section 14 of the Limitation Act, 1963 can be extended to the petitioner.

55. On perusal of provisions of Rule 14 of Rules, 1999, it reveal that the Governor may at any time either on his own motion or on the representation of the concerned government servant review any order passed by him under these rules. If it is brought to his notice that any new material or evidence, which could not be produced or was not available at the time of passing of the impugned order or any material error of law accorded, which has the effect of changing of nature of the case. Therefore this provision does not provide facility of review of any punishment order as of right to the concerned government servant.

56. It is the prerogative of the Governor of the State that he may at any time review any order passed by him under these rules on his own motion or on the representation of the concerned government servant. Moreover, this representation/review provided under Rule 14 of 1999 Rules was preferred by the petitioner with undue delay of seven and a half years. The reasonable time may be 90 days as provided by the provisions of Rule 11 (4) of Rules 1999, which is prescribed for preferring the statutory appeal. There are apparent laches on his part. The petitioner is himself responsible for the same. Since claim petition instituted by him was barred by period of limitation, therefore, it cannot be decided on merits. Right to sue may exist, but remedy goes on the basis of undue delay and laches on the part of the petitioner. The petitioner was obliged to institute his claim petition after one year, he would have preferred appeal or revision within reasonable time and if the same was not decided within six months, he could have approached the learned Tribunal after giving one month's notice.

57. In the above-mentioned circumstances, the Tribunal has passed impugned order dated 26.7.2017 and 16.6.2009 on the review petition preferred by the petitioner before it in correct perspective after considering the relevant provisions of Tribunal Act, 1976. The findings recorded by the Tribunal cannot be termed as perverse or against the law. The case law relied upon by the petitioner does not extend any benefit to him on the basis of exposition of law propounded by Hon'ble Apex Court as mentioned above by us. This exposition of law were not considered in the case law relied upon by the petitioner, therefore, these case laws are not applicable to the facts and circumstances of the instant case.

58. On the basis of above discussion, facts and circumstances of the case and exposition of law propounded by Hon'ble Supreme Court, this petition is liable to be dismissed and is hereby dismissed.

Order Date:- 7.5.2018

Virendra