Allahabad High Court

The Chairman U.P State Bridge ... vs Nawab Singh & Ors. on 7 May, 2018

Bench: Devendra Kumar Arora, Virendra Kumar-Ii




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Case :- SERVICE BENCH No. - 21716 of 2016
 

 
Petitioner :- The Chairman U.P State Bridge Corporation Ltd. Lko.& Anr.
 
Respondent :- Nawab Singh & Ors.
 
Counsel for Petitioner :- Shishir Jain
 
Counsel for Respondent :- C.S.C, Rajesh Kumar, Virendra Kumar Dubey, Ziauddin Khan
 
And
 
Case :- SERVICE BENCH No. - 21756 of 2016
 

 
Petitioner :- Chairman U.P. State Bridge Corporation Ltd. Lko.& Anr.
 
Respondent :- Nawab Singh & 2 Ors.
 
Counsel for Petitioner :- Shishir Jain
 
Counsel for Respondent :- C.S.C, Rajesh Kumar, Virendra Kumar Dubey, Ziauddin Khan
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Virendra Kumar-II,J.

(Delivered by Virendra Kumar-II, J.)

1. Since both the aforesaid writ petitions involve common question of law, hence the same are being decided together.

2. Both the aforesaid writ petitions have been instituted assailing common judgment and order dated 6.5.2016 passed by State Public Services Tribunal (hereinafter referred to as 'Tribunal')in Claim Petition No. 83 of 2016 (Nawab Singh Vs. State of U.P. and others) and in Claim Petition No. 84 of 2016 (Nawab Singh Vs. State of U.P. and others) whereby the Tribunal has allowed both the aforesaid claim petitions by delivering common judgment and impugned order dated 6.3.2010 relating to Claim Petition No. 83 of 2016 and impugned order dated 28.5.2010 relating to Claim Petition No. 84 of 2016 have been quashed. It is directed that respondent no. 1-Nawab Singh shall be entitled for consequential benefits arising out of quashing of impugned orders.

3. The pleadings of writ petitions are almost same, therefore these pleadings are dealt with and writ petitions are being taken up together.

4. It is pleaded in grounds of writ petitions that respondent no. 1-Nawab Singh was initially appointed in the U.P. State Bridge Corporation Limited on the post of Assistant Engineer (Civil) with effect from 14.10.1986. He was promoted on the post of Deputy Project Manager on 5.6.2009. When respondent no. 1 was posted as Deputy Project Manager, Faizabad, punishment orders dated 6.3.2010 and 28.5.2010 were communicated to him in the matter relating to his tenure in district Gorakhpur. It was alleged in the punishment order that respondent no. 1 had not completed the work of bridges according to the target fixed by the department. Respondent no. 1 made representation on 4.6.2010 against the above punishment orders. It was alleged by him that he had already been punished vide order dated 6.3.2010 regarding the same work of the project, which were not completed according to target. It was also alleged by him that the funds were not made available by the department in time, whereas respondent no. 1 had requested the authority concerned for providing funds, but the same were not allotted, therefore he was not responsible for the same.

5. It is further pleaded that punishment orders dated 6.3.2010 and 28.5.2010 has been passed by the disciplinary authority in violation of Rule 37 (1) of the Model Conduct, Discipline and Appeal Rules, because no opportunity was given to respondent no. 1 to submit his explanation in the matter and these orders were passed in violation of the principles of natural justice. Respondent no. 1 submitted reminder representation dated 28.12.2013 and appeal dated 8.4.2014 for quashing the punishment before the Chairman, U.P. State Bridges Corporation Limited but no action has been taken till date.

6. It is also pleaded in the petition that Managing Director, U.P. Bridge Corporation Limited did not apply his own mind in the matter and punishment orders were passed on the direction and dictates of Hon'ble Minister of Public Works Department.

7. It is mentioned that according to Rule 37 (1) of the Model Conduct, Discipline and Appeal Rules, before imposing minor punishment a show cause notice should have been issued to the claimant/respondent no. 1. It is also alleged by claimant/respondent no. 1 that after lapse of more than six months, representation/appeal filed by respondent no. 1 has not been decided by the Chairman, though it was mandatory to decide the same within six months from the date of its submission. Therefore, respondent no. 1 sent a notice dated 5.12.2015 asking the authorities for decision of his representation/ appeal within a period of one month. These representations/appeal have not been decided therefore, he had no other alternative remedy except to approach the Tribunal for redressal of his grievance.

8. It is further pleaded that respondent no. 1 instituted claim petition no. 83 of 2016 and 84 of 2016 before the Tribunal, which were contested by the petitioner- U.P. State Bridge Corporation Limited. Written statement was filed on behalf of the petitioners as respondent no. 2 and 3 of the claim petition. It was also contended in written statement by petitioners that under Rule 42 (2) of the Model Conduct, discipline and Appeal Rules, an appeal against the censure entry/adverse entry were preferred on 8.4.2014 by respondent no. 1 after three and a half years of the passing of impugned orders, therefore, claim petitions were highly time barred and the appeal should have been preferred according to Rule 42 (2) of the aforesaid Rules within one month from the date of communication of the order.

9. It is further mentioned by the petitioner that there is no provision of representation against the punishment of censure entry imposed under Rule 34 of the above Rules. There is however, a provision of representation against an adverse entry. The respondent no. 1 was asked to submit certain information vide letter dated 22.12.2014, but he did not submit information sought for. Since respondent no. 1 has not fulfilled his obligation, claim petitions were therefore, premature also. The petitioner has mentioned details of other punishments awarded against respondent no. 1 which are mentioned in paragraph-6 of the written statement and stated that his services have been far from satisfactory. The allegation, that punishment order dated 28.5.2010 was passed on the basis of same charge, on the basis of which punishment order dated 6.3.2010 was passed, was also denied in the written statement. The petitioners have further contended that respondent no. 1 did not achieve targets fixed for financial year 2009-10 during his posting at Bridge Constructions Unit, Gorakhpur, particularly, when finances were given to him.

10. It is further submitted by the petitioners that in the written statement it was mentioned that the targets fixed for a particular financial year, are regularly reviewed from time to time by the Managing Director as well as by the Hon'ble P.W.D. Minister and the officers not making satisfactory progress are warned orally and/or in writing to improve. The respondent no. 1 was duly warned by the Managing Director to improve things. But he could not complete the targets fixed for the period. In the review meeting held on 11.01.2010 progress made up to 31.12.2009 was reviewed and it was found that the respondent no. 1 could not achieve the targets fixed despite finances given to him in time. He was, therefore, censured vide order dated 06.03.2010. It is therefore, denied that prior opportunity was not given to him. It is further submitted that it was stated in the written statement that in the representation dated 4.6.2010 and the appeal dated 8.4.2014, the respondent no. 1 has himself admitted that the targets fixed for him could not be achieved. The respondent no. 1 was orally warned during review meetings to improve and as such no prejudice was caused to him by not obtaining his prior explanation. The allegation that the punishing authority did not apply his mind was denied in the written statement and it was stated that the punishment order dated 6.3.2010 is self-speaking and reasoned order. There is, therefore, no illegality in the impugned punishment order particularly, when the respondent no. 1 admits the facts. Likewise progress made upto 31.3.2010 was reviewed and since respondent no. 1 could not achieve targets fixed for financial year 2009-2010, therefore, punishment order dated 28.5.2010 was passed against him.

11. It is further contended by petitioners that punishment of censure awarded to respondent no. 1 vide order dated 6.3.2010 and 28.5.2010 are minor punishment as prescribed under Rule 33 of the above-Rule and against the punishment of censure entry awarded to respondent no. 1 by the Managing Director of U.P. State Bridge Corporatoin Limited, an appeal lies to the Chairman of the Board of Directors under the provisions contained in Rule 42 (2) (1) of the said Rules. It is further submitted that representation dated 4.6.2010 and 28.12.2013 sent by respondent no. 1 against the punishment orders dated 6.3.2010 and 28.5.2010 before the Managing Director of the U.P. State Bridge Corporation Limited were not maintainable. The appeal preferred by respondent no. 1 on 8.4.2014 was hopelessly time barred and was not maintainable at such a belated stage. The pendency of the aforesaid representation/appeal would not enlarge the period of limitation as prescribed under Section 5 (1)(b) of U.P. State Public Service Tribunal Act, 1976 (hereinafter referred to as Tribunal Act, 1976). The period from 28.5.2010 to 8.4.2014 cannot be excluded from reckoning the period of limitation for filing claim petition against the punishment order dated 28.5.2010. Likewise period from the 6.3.2010 to 8.4.2014 cannot be excluded from reckoning period of limitation for filing claim petition against the punishment order dated 6.3.2010.

12. The petitioner has relied upon the provisions of Section 5 (1)(a) and (b) of the Tribunal Act, 1976 and submitted that Claim Petition No. 83 of 2016 and 84 of 2016 were not maintainable being barred by period of limitation and the Tribunal has acted illegally without jurisdiction in entertaining the said claim petitions, while passing the impugned judgment and order dated 6.5.2016.

13. The petitioner has further contended that specific plea/objection was taken regarding the maintainability of claim petitions on the ground of limitation in paragraph-4 of their written statement filed before the Tribunal, but the said plea/objection of the petitioner (herein) has not been considered by the Tribunal, while passing the impugned judgment and order dated 6.5.2016. The Tribunal has erred in law in passing the impugned judgment and order without first deciding the objection against maintainability of cliam petitions rendering the impugned judgment and order dated 6.3.2010 illegal and unsustainable in law and the judgment and order dated 6.5.2016 is liable to be quashed on this ground alone.

14. It is further contended by the petitioner that the respondent no. 1 failed to achieve the targets fixed for constructions of bridges was apparent on the face of it as the respondent no. 1 was himself In-charge of construction of bridges and was also issued warnings by the Managing Director for not achieving the target, as such, no enquiry or explanation from the respondent no. 1 was needed in the matter for arriving at the conclusion as to whether the targets, which were fixed in consultation with the opposite party no. 1 himself, were achieved or not. The said fact was pleaded by the petitioner in their written statement filed in Claim Petition No. 83 of 2016 and 84 of 2016, but the said pleadings have not been considered and dealt with by the Tribunal and delivered the impugned order mechanically.

15. It is further mentioned that there was no pleading in the claim petition regarding the prejudice caused to respondent no. 1 in not following the procedure laid down in Rule 37 of the aforesaid Rule prior to passing the punishment orders dated 6.3.2010 and 28.5.2010 and in the absence of any pleading regarding the prejudice caused, the Tribunal has erred in law in quashing the punishment orders dated 6.3.2010 and 28.5.2010 on the ground of violation of principles of natural justice. Thus the judgment and order dated 6.5.2016 is illegal and unsustainable and the same is liable to be quashed by this Hon'ble Court. It was also incumbent upon the Tribunal to have granted liberty to the petitioners to proceed afresh against the respondent no. 1 in accordance with law, if any violation of the procedure was found.

16. It is further submitted that since respondent no. 1 had not achieved the targets fixed for construction of bridges despite warnings having been issued to him by the Managing Director to improve the things, the punishment order dated 6.3.2010 and 28.5.2010 were rightly passed against him and there was no illegality in imposing minor punishment upon the respondent no. 1 and punishment orders dated 6.3.2010 and 28.5.2010 were perfectly just, legal and valid in the facts and circumstances of the case.

17. It is further submitted that impugned judgment and order dated 6.5.2016 passed by Tribunal is based on conjectures and surmises and the same is contrary to the facts and material available on record before the Tribunal.

18. On the above-mentioned grounds, facts and circumstances of the act, following reliefs have been sought in Writ Petition No. 21716 (SB) of 2016:-

"(i) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing judgment and order dated 6.5.2016, passed by the Learned State Public Services Tribunal in Claim Petition No. 84 of 2016 (Nawab Singh Vs. State of U.P. and others) contained in Annexure No. 1 to the writ petition."

Likewise following reliefs, have also been sought in Writ Petition No. 21756 (SB) of 2016:-

"(i) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing judgment and order dated 6.5.2016 passed by learned State Public Services Tribunal in Claim Petition No. 83 of 2016 (Nawab Singh Vs. State of U.P. and others), contained in Annexure No. 1 to the writ petition."

19. Per contra, respondent no. 1 has filed counter affidavit. In the counter affidavit, it is pleaded by him that Claim Petition No. 83 of 2016 has been filed by him against censure entry dated 6.3.2010 and Claim Petition No. 84 of 2016 has been filed against punishment order dated 28.5.2010. He made representation dated 4.6.2010 followed by reminder representation dated 18.12.2013 to the Managing Director against the aforesaid punishment orders, but the same were not considered. Thereafter he preferred an appeal on 8.4.2014 before the Chairman of the Corporation as provided under Rule 42 (2) of the Model Conduct, Discipline and Appeal Rules. The Managing Director was required to forward the appeal to the appellate authority along with his report and relevant record within a period of 15 days. The appellate authority is required to dispose of th appeal within a period of three months. Rule 45 of the said Rules empowers the appellate authority to condone the delay in filing the appeal on being satisfied that the explanation given for delay is sufficient.

20. It is further contended that it appears that Managing Director of Corporation instead of forwarding appeal of respondent no. 1 to the appellate authority i.e. Chairman of the Corporation, chosen to consider the representation dated 18.12.2013 at his own level as such vide order dated 22.12.2014 required respondent no. 1 to submit report on two points mentioned in the letter. Since the respondent no.1, at that time, was posted at Banda and therefore, he wrote a letter dated 28.7.2015 to the Deputy Project Manager, Gorakhpur Unit with the request to provide requisite information. In response thereto the Deputy Project Managing through his letter dated 3.8.2015 furnished the requisite information. Thereafter, respondent no. 1 through letter no. 1923/E-1/SBC/AgrA/2015-16 dated 23.9.2015 submitted the requisite information to the Deputy Manager (Personnel-I) in response to the letter dated 22.12.2014. letters dated 28.7.2015, 3.8.2015 and 23.9.2015 have been annexed as Annexure nos. CA-1, CA-2 and CA-3.

21. The respondent no. 1 has also contended that he had not anything heard from the present petitioners with regard to disposal of his representation/appeal and therefore, the deponent sent a legal notice dated 5.12.2015 through his counsel thereby requesting the Chairman to consider and decide the pending representation/appeal within one month, but with no response. Hence the respondent no. 1 was compelled to approach the Tribunal for getting redress to his grievance against the punishment orders as referred above.

22. It is further submitted that representation/appeal preferred by respondent no. 1 against the punishment order dated 6.3.2010 and 28.5.2010 remained under active consideration of the petitioners, but miserably no decision has been taken and as such, the cause of action accrued on 6.3.2010 and 28.5.2010 remained continue and operative till the filing of the claim petition and therefore, the plea taken by the petitioners that the claim petition was barred by period of limitation prescribed under Section 5 (1)(b) of the Tribunal Act, 1976 is wholly misconceived and not tenable in the eyes of law. The writ petition is devoid of merit and liable to be dismissed on this count alone.

23. It is further contended by respondent no. 1 that plea of giving oral warning to the respondent no. 1 during review meeting is absolutely wrong and without any substance. In any case, the oral warning does not satisfy the condition of giving opportunity to show cause and explanation before awarding minor punishment as prescribed under Rule 37 (1) of the said Rules. So far as non-completion of certain works is concerned, the deponent has given reasons in his representation dated 4.6.2010, a perusal of which would show that the respondent no. 1 is not responsible for same, but the representation has not been taken into consideration. As a matter of fact, the respondent no. 1 has been subjected to arbitrary treatment and departmental victimization.

24. It is further mentioned by respondent no. 1 that there is no provision to award punishment of censure entry etc. twice or more in one calendar year. Even otherwise, the punishment orders dated 6.3.2010 and 28.5.2010 relate to the same matter and amount to double jeopardy, which is legally not sustainable. The plea taken by petitioners in their written statement is wholly misconceived and not tenable in law. It is further contended that the petitioners did not take any decision, even after service of legal notice dated 5.12.2015 and kept the matter shelved in his archives and as such, the claim petition filed by the respondent no. 1 cannot be said to be barred by period of limitation prescribed under Section 5 (1) of th Tribunal Act, 1976. Inasmuch as delay, if any, in filing the claim petition was not on the part of the respondent no. 1, but due to dereliction on the part of the petitioners. The Tribunal has rightly entertained the claim petitions and decided on merits in accordance with law.

25. Respondent no. 1 has further contended that the authorities concerned have got no authority to act at their own whims and choice, but they are bound to follow the provisions of the relevant rules while awarding punishment, which they have deliberately failed to follow in the case of respondent no. 1. The findings given by Tribunal is quite just and proper. The punishment orders dated 6.3.2010 and 28.5.2010 having been passed arbitrarily and in utter violation of the provisions contained in Rule 37 (1) of the relevant Rules as well as the principles of natural justice. The Tribunal has rightly allowed the claim petitions and quashed the impugned orders. No ground for interference by this Court under Article 226 of the Constitution of India is made out.

26. Rejoinder affidavit has been filed by the petitioners reiterating their earlier averments. By means of rejoinder affidavit, learned counsel for petitioners has submitted that Managing Director wrote a letter dated 22.12.2014 requiring the respondent no. 1 to submit report on certain points, which was submitted by him on 23.9.2015 i.e. after expiry of period of 9 months, would not enlarge the period of limitation for filing claim petition before the Tribunal. Since claim petition filed by respondent no. 1 was barred by period of limitation, the same was liable to be dismissed by the Tribunal as not maintainable.

27. It is further reiterated that in the review meeting held on 11.1.2010, progress made upto 31.12.2009 was reviewed and it was found that the respondent no. 1 could not achieve the targets fixed despite finances given to him. He was, therefore, censured vide order dated 6.3.2010 and as such, it is denied that proper opportunity was not given to respondent no. 1. No prejudice has been caused to opportunity no. 1 in the matter. Likewise it is further contended that punishment order dated 28.5.2010 was passed for unsatisfactory progress made upto 31.3.2010 i.e. both punishment orders have been passed for two different periods, the allegation of double jeopardy is misconceived, wrong and untenable.

28. Respondent no. 1 has filed supplementary counter affidavit dated 27.8.2017, in which he has reiterated his earlier contentions made in the counter affidavit and submitted that claim petitions instituted by him were virtually not barred by period of limitation, as prescribed by provisions of Tribunal Act, 1976 and impugned punishment orders of claim petition was a nullity and void abinitio having been passed in violation of rules/statutory provisions and also in violation of principles of natural justice, hence the same cannot be read against respondent no. 1. On that basis, the respondent no. 1 cannot be deprived of promotion to the next higher post of Project Manager. The impugned order dated 6.3.2010 was passed imposing punishment of censure merely on the basis of some discussion with Hon'ble Minister behind back of respondent no. 1 in utter violation of Bride Corporation Conduct, Discipline and Appeal Rules for Public Undertakings. The punishment orders having no legal existence, and as such, the same cannot be applied adversely to deprive an employee of his legitimate service benefits.

29. It is further submitted that the law of limitation is not applicable to the void orders and as such, the Tribunal has allowed the claim petitions, which do not suffer from any legal infirmity. It is further mentioned that Commissioner, Gorakhpur Mandal Gorakhpur had already written a letter to the Principal Secretary Lok Nirmal Vibhag, Lucknow on 4.12.2009 that the work is lying pending since long due to paucity of funds and had requested to provide the same as per revised estimate of cost. This letter has been annexed as Annexure SCA-3. It is further submitted that the petitioner was promoted as Deputy Project Manager on 5.6.2009, when the work progress was not there due to dearth of funds, although the funds were not provided despite letter of the Commissioner dated 4.12.2009 yet the punishment was imposed on the respondent no. 1 on the basis of meeting dated 11.1.2010.

30. Respondent no. 1 has further pleaded that in the meantime, Departmental Promotion Committee met in the month of October, 2015 for considering the promotion to the next higher post of Project Manager. The petitioner was fully eligible hence he was also considered, but was not promoted on account of punishment orders whereas these impugned orders were void ab initio and cannot be adversely used against respondent no. 1 and he could not be denied promotion on this basis. The respondent no. 1 instituted Claim Petition on 8.1.2016 within one year of the said Departmental Promotion Committee met. It is further mentioned that DPC again met to consider promotions in the month of December 2016 and again respondent no. 1 was considered, but not promoted. While considering the said impugned orders he could not be deprived of his promotion by taking into account, which are nullity in the eyes of law and the same are liable to be ignored.

31. The petitioners have filed rejoinder affidavit contradicting the contentions of supplementary counter affidavit reiterating their earlier contentions. It is mentioned that letter dated 4.12.2009 (contained in Annexure No. SCA-3) was not filed by respondent no. 1 before the Tribunal and said document even otherwise is not relevant as such, said letter is of no consequence to the respondent no. 1 for the purpose of adjudication of present writ petition.

32. It is further submitted that challenge to punishment orders dated 6.3.2010 and 28.5.2010 was made by respondent no. 1 before the Tribunal in the month of January, 2016 i.e. after more than five and a half years from the date of passing of the punishment orders. Whereas the period of limitation prescribed for filing claim petition before the Tribunal by virtue of provisions of Section 5 (1)(b) of Tribunal Act, 1976 was one year. The claim petitions filed by respondent no. 1 were time barred and the same were liable to be dismissed by the Tribunal as not maintainable and as the same has not been done by Tribunal, the judgment and order dated 6.5.2016 is rendered illegal, without jurisdiction and unsustainable in law and the same is liable to be quashed by this Court.

33. In support of his submission, learned counsel for petitioners has relied upon judgment of Division Bench of this Court in the case of Karan Kumar Yadav Vs. U.P. State Public Services Tribunal and others reported in 2008 (2) AWC 1987 (LB) and has argued that this Court has considered provisions of Section 5 (1)(b) of Tribunal Act, 1976 and Section 5 of Limitation Act 1963 and held in paragraph nos. 14 and 15 as under:-

"14. Its applicability is limited only to application/appeals and revision. It hardly requires any argument that Section 5 does not apply to original suit, consequently it would not apply in the claim petition. Had the Legislature intended to provide any extended period of limitation in filing the claim petition, it would not have described the claim petition as a suit, filed in the civil court in Section 5 (1) (b) and/or it would have made a provision in the Act giving power to the Tribunal, to condone delay, with respect to the claim also.

15. In view of the aforesaid provision of the Act and the legal provision in respect to the applicability of Section 5 of the Act, it can safely be held that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable. The Tribunal will cease to have any jurisdiction to entertain any claim petition which is barred by limitation which limitation is to be computed in accordance with the provisions of the Tribunal's Act itself and the rules framed thereunder."

34. Learned counsel for petitioner has also relied upon judgment in the case of State of U.P. and others Vs. Dr. Neeraj Kumari Mishra Deo and another reported in [2011 (29) LCD 668] and argued that Division Bench of this Court has considered the provisions of Section 5 of the Limitation Act and its applicability for condonation of delay relating to claim petitions instituted under Tribunal Act. Division Bench of this Court in paragraphs-3, 4 and 5 has held as under:-

"3. It is the case of the private respondent that when this order came to his knowledge, he approached this Court by means of Writ Petition No. 1501 of 2008 (SB). That petition was disposed of vide order dated 16.10.2008. Learned Bench of this Court noted that the petitioner had alternative remedy before the U.P. State Public Services Tribunal and as such the Court chose not to interfere and disposed of the petition with the direction that if the petitioner files a claim petition within a period of one month from that day, the same shall be disposed of on merit expeditiously and preferably within one year from the date of filing of the claim petition. That claim petition has since been allowed and consequently, the present writ petition by the State, which is aggrieved by the order passed by the Tribunal aforesaid. It is submitted on behalf of the petitioners that the claim was time barred and consequently it could not have been considered.

4. Our attention has been drawn to a judgment of this Court in the case of Karan Kumar Yadav vs U.P. State Public Services Tribunal, and others, reported in 2008 (2) AWC 1987 (LB). By that judgment the learned Bench of this Court has taken a view that the provisions of Section 5 of Limitation Act are not applicable to claim petition and consequently, there is no question of condoning the delay.

5. The first issue before us is, whether the order of this Court 16.10.2008 passed in Writ Petition No. 1501 (SB) of 2008 can be considered or treated to be an order condoning the delay. We make it clear that if there is no provision under the Act to condone the delay, this Court in exercise of its extra ordinary jurisdiction, cannot condone the delay which the authorities themselves could not have condoned. In these circumstances, the order dated 16.10.2008 passed in Writ Petition No. 1501(SB) of 2008 must be read in context that if the claim petition was maintainable, then the same would be heard on merits, in so far as there is no inconsistency in law."

35. Per contra, learned counsel for respondent no. 1 has submitted written brief argument along with his oral argument.

36. In support of his contention, learned counsel for respondent no. 1 has relied upon a decision of constitutional Bench of Hon'ble five Judges of Supreme Court in the case of State of Madhya Pradesh Vs. Syed Qamarali reported in [1961 Legal Eagle 93] wherein Hon'ble Supreme Court in paragraphs-19, 20 and 21 has held as under:-

"19. On the authority of Babu Ram Upadhya's case (Supra) we must hold that if the provision in Para 241 that a police officer on acquittal by a criminal court "may not be punished departmentally when the offence for which he was tried constitutes the sole ground of punishment" is mandatory and not directory, the order of dismissal is wholly invalid. It is quite clear that the words "may not be punished" in the collocation of words used is equivalent to "shall not be punished". The obvious object of the rule-making authority was that the Police officer in holding the departmental enquiry should not sit in review over a considered decision of a criminal court of competent jurisdiction. It is only reasonable to think that having decided on such an object the rule-making authority had also the intention that the object should be fully achieved. Reading the words used in the rule in the light of these considerations we have no hesitation in holding that the intention of the rule-making authority was to make this provision against departmental punishment on a charge of which a police officer had been acquitted by a criminal court mandatory, that is, it could be broker only on pain of the order made in breach becoming invalid.

20. We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected.

21. The High court was therefore right in decreeing the suit for the sum of Rs. 1,000.00 to which the respondent had, when preferring the appeal to the District Judge, reduced his claim. The direction made by the High court as regards the appellant's salary from the date of the suit was however outside the scope of the suit and is therefore set aside. With this modification in the High court's order the appeal is dismissed with costs."

37. Learned counsel for respondent no. 1 has also relied upon a Constitutional Bench of Hon'ble three Judges decision of Hon'ble Supreme Court in the case of State of Punjab Vs. Gurdev Singh reported in [1991 AIR (SC) 2219] in which Hon'ble Supreme Court in paragraph nos. 5 and 7 to 11 has held as under:

5. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal., inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable.

If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside.The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.

7. Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand' of invalidity' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the decision of the Court (See: Administrative Law 6th Ed. p. 352). Prof. Wade sums up these principles:

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."

8. It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.

"9. Counsel for the respondents, however, has placed strong reliance on the decision of this Court in State of M.P. v. Syed Quamarali 1967 Serv LR 228 (SC). The High Court has also relied upon that decision to hold that the suit is not governed by the limitation. We may examine the case in detail. The respondent in that case was a sub-inspector in the Central Province Police Force. He was dismissed from service on 22 December, 1945. His appeal against that order was dismissed by the Provincial Government, Central Provinces and Berar on 9 April, 1947. He brought the suit on 8 December, 1952 on allegation that the order of dismissal was contrary to the para 241 of the Central Provinces and Berar Police Regulations and as such contrary to law and void, and prayed for recovery of Rs. 4724/5/- on account of his pay and dearness allowances as sub-inspector of Police for the three years immediately preceding the date of the institution of the suit. The suit was decreed and in the appeal before the Supreme Court, it was urged that even if the order of dismissal was contrary to the provisions of law, the dismissal remained valid until and unless it is set aside and no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed. It was observed:

"We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised, is totally invalid. The order of dismissal had, therefore, no legal existence and it was not necessary for the respondent to have the order set aside by a Court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected."

Although learned counsel for petitioner has relied upon paragraph-9 still it is imperative for the petitioner that he would have got his dismissal order set aside by competent authority/Tribunal.

10. These observations are of little assistance to the plaintiffs in the present case. This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not be set aside. But it may be noted that Syed Qamarali brought the suit within the period of limitation. He was dismissed on 22 December, 1945. His appeal against the order of dismissal was rejected by the Provincial Government on 9 April, 1947. He brought the suit which has given rise to the appeal before the Supreme Court on 8 December, 1952. The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908.

11. The Allahabad High Court in Jagdish Prasad Mathur v. United Provinces Government AIR 1956 All 114, has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is governed by Article 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil v. Secretary of State and Anr. AIR 1943 Oudh 368. That in our opinion is the correct view to be taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act. The decision to the contrary taken by the Punjab & Haryana High Court in these and other cases (State of Punjab v. Ajit Singh 1988 (1) Serv LR 96 (Punj & Har) and (ii) State of Punjab v. Ram Singh (1986) 1 Serv LR 379 (Punj & Har) is not correct and stands overruled."

38. It is also relevant to mention here that Hon'ble Supreme Court in the case of Syed Qamarali (supra) has observed in paragraphs-10 and 11 as under:-

(10). Two contentions were raised before us in appeal. First, it was contended that the High court was wrong in thinking that Para 241 of the Police Regulations applied to the facts of the case. Secondly, it was urged that in any case the departmental enquiry and the order of dismissal even if contrary to the provisions of Paragraph 241 of the Police Regulations remained valid until and unless an order was obtained from a competent court setting aside the same and so no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed whether the period of limitation for such a suit be under Art. 14 or Art. 120 of the Limitation Act.

(11) The first question that arises for consideration therefore is whether the departmental enquiry and the order of dismissal were contrary to Para 241 of the Police Regulations. Para 241 of the Police Regulations is in these words :

"When a Police Officer has been tried and acquitted by a Criminal court, he must as a rule be reinstated. He may not be punished departmentally when the offence for which be was tried constitutes the sole ground for punishment. If however the acquittal, whether in the court of original jurisdiction or of appeal, was based on technical grounds, or if the facts established at the trial show that his retention in government service is undesirable, the District Superintendent may take departmental cognizance of his conduct, after obtaining the sanction of the Inspector General."

39. Therefore, in the facts and circumstances of this case, these exposition of law has to be considered in light of provisions of Section 5 (1)(b) of the Tribunal 1976.

40. Learned counsel for respondent no. 1 has also relied upon a decision of Hon'ble Supreme Court in the case of R. Sulochana Devi Vs. D.M. Sujatha reported in [2004 Legal Eagle 908] and argued that Hon'ble Supreme Court in paragraphs-23 and 24 has held as under:-

"23. As rightly pointed out by Mr. T.L.V. Iyer that the opinion of the RJD dated 15.02.2000 is an opinion which is non est in law since no notice has been given to parties before passing such an order and, therefore, the subsequent order that was passed by the RJD dated 15.04.2002 after considering all the relevant documents. Mr. Iyer is also right in contending that the order dated 15.02.2000 is a nullity and, therefore, it can be ignored by the appellant and the question of filing a review by the appellant does not arise. When the order passed by an authority is not in accordance with law and no notice was communicated to the party it is a nullity and need not be challenged in a Court of law.

24. We see merit in the submission of Mr. Iyer that an order made in violation of natural justice is void. Mr. T.L.V. Iyer in support of his above contention relied on the judgment of this Court in Krishan Lal v. State of J & K (1994) 4 SCC 422 to the effect that an order passed in violation of the principles of natural justice renders an order invalid. Likewise, an order made without hearing the party affected is also bad in law. In the instant case, the order made in violation of natural justice is void."

41. It is pertinent to mention here that this exposition of law has also to be considered by this Court in light of exposition of law propounded by Constitutional Bench of three Judges of Hon'ble Supreme Court in the case of Gurdev Singh (supra) and provisions of Section 5 (1)(b) of the Tribunal Act 1976.

42. We have perused the record of both the writ petitions.

43. Admittedly both the punishment orders dated 6.3.2010 and 28.5.2010 were communicated to respondent no. 1 before 4.6.2010. It is contended by respondent no. 1 that he forwarded representation dated 4.6.2010 and preferred an appeal on 8.4.2014. The petitioners have specifically had taken plea in their written statement submitted before Tribunal that original application/claim petition no. 83 of 2016 and 84 of 2016 (Nawab Singh Vs. State of U.P. and others) were instituted before Tribunal after about five and a half years because cause of action first accrued for him on the date, when punishment orders dated 6.3.2010 and 28.5.2010 were communicated to him.

44. Learned counsel for respondent no. 1 has submitted that petitioners did not take action/decide representation dated 4.6.2010 and reminder representation dated 28.12.2013. Moreover, the petitioners called for certain information vide letter dated 22.12.2014, which was responded by respondent no. 1. Likewise appeal preferred by respondent no. 1 on 8.4.2014 was not decided by the petitioners within six months. Therefore, notice dated 5.12.2015 was sent to the petitioners for deciding the representation/appeal preferred by respondent no. 1 within a period of one month, even then these representations and appeal were not decided by the petitioners. Therefore, respondent no. 1 was compelled to institute Claim Petition No. 83 of 2016 and 84 of 2016 before the Tribunal for redressal of his grievances.

45. Learned counsel for petitioners has argued that on the basis of representation dated 4.6.2010 and 28.12.2013 and appeal preferred on 8.4.2014 do not extend or enlarge period of limitation, because cause of action was first accrued, while both the punishment orders were communicated to him. Moreover, appeal preferred on 8.4.2014 was itself barred by limitation, because it was preferred after about four years of passing of both the punishment orders.

46. On perusal of provisions of Rule 42 (2) of Model Conduct, Discipline and Appeal Rules, it revealed that an appeal against censure entry/minor punishment shall be preferred within one month from the date of communication of the order. The respondent no. 1 has not disclosed this fact that when punishment orders dated 6.3.2010 and 28.5.2010 were actually communicated to him and on which date. He has forwarded representation dated 4.6.2010. Therefore, period of one month for preferring appeal against the punishment order dated 6.3.2010 had expired, when he forwarded his representation dated 4.6.2010.

47. Likewise according to provisions of Section 5 (1)(b), period of limitation for institution of reference under Section 4 of the Tribunal Act, 1976 is prescribed one year only.

48. We have perused provision of Section 4 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) ......................

49. 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.

50. 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.

51. 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 a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance.

52. On perusal of these provisions, it is crystal clear that reference/claim petition under Section 4 of Tribunal Act, 1976 is considered in the 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 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.

53. We have also 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.

54. 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.)"

55. 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] .)

56. 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.

57. 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."

58. The Constitutional Bench of seven Judges of Hon'ble Supreme Court in the case of S.S. Rathore (supra) has held in paragraph-22 as under:-

59. This exposition of law is wholly applicable to the facts and circumstances of present case.

60. At this juncture, it would be apt to examine the judicial verdicts on the issue of period of limitation:-

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

61. Now we examine the facts and circumstances of present case on the basis of above-mentioned exposition of law propounded by Hon'ble Apex Court as to whether if representation dated 4.6.2010 and 28.12.2013 and appeal preferred on 8.4.2014 were not decided by competent authorities within six months, then it was open for respondent no. 1 to institute Claim Petition No. 83 of 2014 and 84 of 2016 after one and a half year after communication of both the punishment orders dated 6.3.2010 and 28.5.2010.

62. We have perused Claim Petitions No. 83 of 2016 and 84 of 2016 instituted on behalf of the respondent no. 1.

63. In Clause 5 (10) of claim petition, it is mentioned that cause of action finally arose on 6.1.2016 when the period of one month from the date of submission of last notice dated 5.12.2015 was expired. Therefore, cause of action is running continuously in the instant claim petitions, which is well within time and is also cognizable by this Tribunal.

64. On perusal of claim petition, it is clear that respondent no. 1 relied upon the fact that his representation dated 4.6.2010 and 28.12.2013 were not decided by competent authority and certain information were sought vide letter dated 22.12.2014. It is pertinent to mention here that these representations were made by respondent no. 1 before the Managing Director of Corporation, who was the disciplinary authority. The petitioners have specifically contended that according to service rules applicable to the employees of Bridge Corporation, no statutory representation has been provided against punishment of censure entry. This representation is only provided against adverse entry only.

65. Likewise the petitioners have contended that respondent no. 1 has admitted his representation dated 4.6.2010 and appeal preferred on 8.4.2014 that targets fixed by the department could not be achieved by respondent no. 1 being Deputy Project Manager at Gorakhpur Unit and in review meeting held on 11.1.2010 progress made upto 31.12.2009 was reviewed and it was found that respondent no. 1 could not achieve targets fixed despite finances given to him in time. He was therefore, censured vide O.M. dated 6.3.2010. But still he did not improve as such he was punished vide O.M. dated 28.5.2010 finding unsatisfactory progress made upto 31.3.2010 during financial year 2009-2010.

66. We have perused Annexure-3, representation dated 4.6.2010 of the respondent no. 1. It is mentioned in this representation that technical sanction of Rs. 757.26 lakh was sanctioned for work as mentioned at Sl. No. 1 i.e. construction of Railway Bridge over Maharajganj-Gorakhpur way. Expenditure on 25.7.2008 was 237.23 and progress of work was 37%. During period from 25.7.2008 upto 25.2.2010 i.e. during his tenure at Unit Gorakhpur, this expenditure was Rs. 826.28 lakh and progress of work was 91%.

67. For work mentioned at Sl. No. 2-Bridge over Rohin River situated at Mahdeiya Chak Marg, Shahpurghat, district Maharajganj, amount of Rs. 231.26 lakh was technical sanction and expenditure was Rs. 152.53 and progress was 58% on 25.7.2008. During tenure of respondent no. 1 expenditure was Rs. 234.32 lakh and progress was 87% upto 25.2.2010.

68. For work mentioned at Sl. No. 3 for construction of Bridge at Nawaparghat over Rohin River in District Gorakhpur, amount of Rs. 273.07 lakh was technical sanction and expenditure was Rs. 88.52 lakh and progress was 21%.

During tenure of respondent no. 1, this expenditure was Rs. 284.24 lakh and progress was 81% upto 25.2.2010.

69. For work mentioned at Sl. No. 4 for construction of Bridge over Rapti River at Karaah Kolpurghat in District Deoria, amount of Rs. 795.94 was technical sanction and expenditure was Rs. 515.17 and progress was 47%.

During tenure of respondent no. 1 expenditure was Rs. 894.84 lakh and progress was 77% upto 25.2.2010.

70. For work mentioned at Sl. No. 5, amount of Rs. 580.43 lakh was technical sanction for construction of work over Rapti River situated at Dhani Khadkhadiya way in district Maharajganj. Expenditure was Rs. 391.72 and progress was 50%. During tenure of respondent no. 1, this expenditure was 625.59 lakh and progress was 72% upto 25.2.2010.

71. For work mentioned at Sl. No. 6, amount of Rs. 262.37 lakh was technical sanction for construction of bridge over Rohin river Ravelnagar Machhariyaghat on P.P. Ganj-Bhat-hat way within district Gorakhpur. Expenditure was Rs. 161.31 and progress was 52%. During tenure of respondent no. 1, expenditure was Rs. 173.80 lakh and progress was 52%.

72. It is mentioned in this representation that target of construction of these bridges was not achieved upto December, 2009 although reason has been mentioned by respondent no. 1 that revised estimate was prepared and sent on relevant dates i.e. 10.8.2013 for work at Sl. No. 1, 28.4.2009 for work at Sl. No. 2, 29.7.2009 for work at Sl. No. 3, 11.8.2009 for work at Sl. No. 4, 31.3.2009 for work at Sl. No. 5 and 24.11.2009 for work at Sl. No. 6.

73. Respondent no. 1 has also relied upon letter dated 4.12.2009 allegedly representation by Commissioner Gorakhpur Region to Principal Secretary, P.W.D. Lucknow for sanction of revised estimates sent by respondent no. 1. Letter dated 4.12.2009 (Annexure-SCA3) was admittedly not provided by respondent no. 1 during course of proceedings before Tribunal.

74. On perusal of representation dated 4.6.2010, it revealed that sufficient funds were available during tenure of respondent no. 1 with which target fixed by the department, was not achieved upto December, 2009.

75. The petitioners have specifically contended that in review meeting dated 11.1.2010 progress made upto 31.12.2009 was reviewed and found that finances were given to respondent no. 1 in time. Therefore, he was censured vide O.M. dated 6.4.2010. This progress was not improved upto 31.3.2010. Therefore, he was punished vide O.M. dated 28.5.2010.

76. On perusal of representation dated 4.6.2010, it revealed that sufficient funds were available during tenure of respondent no. 1 for completion of these works mentioned in this representation, because funds were available according to technical sanction, even then target was not achieved by the petitioner upto December, 2009. The respondent no. 1 has mentioned same facts narrated by him in his reminder representation dated 28.12.2013 as mentioned in his representation dated 4.6.2010.

77. The petitioners have also contended that respondent no. 1 himself responded to letter dated 22.12.2014 after delay of nine months. Therefore, no action could be taken on his representation dated 4.6.2010 and 28.12.2013. It is pertinent to mention here that in paragraph-18 of counter affidavit, the respondent no. 1 has mentioned that he responded to letter dated 22.12.2014 vide letter 23.9.2015 (Annexure CA-3).

78. We have also perused Annexure-CA2 information forwarded by Project Manager to respondent no. 1. On perusal of letter dated 3.9.2015, it reveal that during period from August 2008 upto March, 2010 funds were allocated for different works mentioned in it on the basis of demand placed by Unit at Gorakhpur. The details mentioned in letter dated 3.9.2015 supports the contention of the petitioners that sufficient funds were made available to respondent no. 1 during his tenure of Bridge Corporation Unit at Gorakhpur. The respondent no. 1 cannot rely on the revised estimates prepared and sent during his tenure because funds were available for each work mentioned in his representation dated 4.6.2010 according to technical sanction for these works. When he joined on 25.7.2008, expenditure was very low, in comparison to the amount of technical sanction. Therefore, there is substance in the contention of petitioners that during financial year 2009-10 target fixed by the department for completion of bridges on the above mentioned was not achieved upto December, 2009 and upto 31.3.2010 by the respondent no. 1. The respondent no. 1 has himself mentioned percentage of progress of the work upto 25.2.2010, which was not upto mark as per target fixed by the department. Therefore, respondent no. 1 was punished vide O.M. dated 6.3.2010 and O.M. dated 28.5.2010.

79. We have also perused Rule 33 and Rule 37, which provide as follows:-

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			¼M½ fuEurj Js.kh ;k in ij vFkok le;eku esa fdlh fuEurj 			izdze ij voufrA
 
			¼p½ lsok ls gVk nsuk tks Hkfo"; esa lsok;kstu ds fy;s 				v;ksX;rk ugha gksxh%
 
			¼N½ inP;qfrA 
 
Li"Vhdj.k%& 		bl fu;e ds rkRi;Z ds vUrxZr fuEufyf[kr ckr n.M ;k 				'kkfLr ds :i esa ugha dh tk;xh %&
 
¼1½ dk;Z vlUrks"ktud ik;s tkus vFkok visf{kr Lrj dk u gksus] vFkok fu/kkZfjr ijh{k.k vFkok ijh{kk esa vlQY jg tkus ds dkj.k fdlh deZpkjh dh osru o`f} jksd fn;k tkukA 
 
¼2½ deZpkjh dh n{krk jks/k ikj djus esa vuqi;qDrrk ds vk/kkj ij mls le;eku esa n{krk jks/k ij jksd fn;k tkukA
 
¼3½ deZpkjh dh fdlh mPprj in ij pkgs LFkkukiUu gSfl;r ls ;k vU;Fkk] ftlds fy;s og fopkj gsrq ik= gks fdUrq mlds ekeys esa fopkjksijkUr mls vuqi;qDr ik;k x;k gks izksUufr u fd;k tkukA
 
¼4½ mPprj Js.kh esa ;k in ij LFkkukiUu :i ls dk;Zjr fdlh deZpkjh dks bl vk/kkj ij fd mls ijh{k.k ds ckn ,slh mPprj Js.kh ;k in ds fy;s vuqi;qDr ik;k x;k gks] vFkok iz'kklfud vk/kkjksa ij tks mlds vkpj.k ls lEcfU/kr u gks] fuEurj Js.kh esa ;k in ij izR;kofrZr fd;k tkukA 
 
¼5½ fdlh vU; Js.kh ;k in ij ifjfo{kk ij fu;qDr fdlh deZpkjh dk mldh fu;qfDr dh 'krksaZ ds vuqlkj ifjoh{kk vof/k ds nkSjku ;k mldh lekfIr ij mldh iwoZorhZ Js.kh ;k in ij izR;korZuA
 
¼6½ lsok dh lekfIr%&
 
	¼d½ ifjoh{kk ij fu;qDr fdlh deZpkjh dh mldh fu;qfDr dh 'krksZa ds 	vuqlkj ifjoh{kk vof/k ds nkSjku ;k mlds vUr esa lsok lekfIrA
 
	¼[k½ vLFkk;h :i ls fu;qDr fdlh deZpkjh dh tks fd fdlh lafonk ;k 		vuqcU/k ls fHkUu gks] mldh fu;qfDr dh 'krksZa ds vuqlkj] ml vof/k ftlds 	fy;s mldh fu;qfDr gqbZ Fkh ds chr tkus ij ;k mlds iwoZ lsok lekfIr]
 
	¼x½ lafonk ;k vuqcU/k ds v/khu fu;qfDr fdlh deZpkjh dh ,sls lafonk ;k 	vuqcU/k dh 'krksZa ds vuqlkj lsok dh lekfIr] rFkk
 
	¼?k½ vf/k"Bku esa deh fd;s tkus ij fdlh deZpkjh dh lsok&lekfIr
 
n.M vkjksfir ¼37½ dh izfdz;k &tgk fu;e 31 ds [k.M ¼d½ ls ¼?k½ rd eas 					  fofufnZ"V NksVs n.Mksa esa ls fdlh dk vf/kjksi.k 					 izLrkfor gS lEcfU/kr deZpkjh dks mlds fo:) 					yxk;s x;s dnkpkj ;k nqO;Zogkj ds vkjksi dks fyf[kr 				:i esa lwfpr fd;k tk;sxk rFkk mls izfrokn dk 					fyf[kr c;ku ,d fofufn"V  vof/k ds vUnj tks 15 					fnu ls vf/kd u gks izLrqr djus dk volj iznku 					fd;k tk;sxkA deZpkjh }kjk ;fn dksbZ cpko dk c;ku 				nkf[ky fd;k x;k gS rks vuq'kklfud izkf/kdkjh }kjk 				vkns'k ikfjr djus ds igys ml ij fopkj fd;k 					tk;sxkA
 
¼2½ fuEu dk;Zokgh ds vfHkys[k esa fuEu phtsa 'kkfey gksaxh %& 
 
	¼1½ deZpkjh dks izsf"kr dnkpkj ;k nqO;oZgkj ds vkjksiksa ds fooj.k dh ,d 	izfr] 
 
	¼1½ mlds izfrokn dk c;ku] ;fn dksbZ gks] rFkk
 
	¼1½ vuq'kklfud izkf/kdkjh ds vkns'k] muds dkj.kksa ds lfgrAß

80. The right to sue accrued for the respondent no. 1 for the first time after communication of punishment orders dated 6.3.2010 and 28.5.2010. He was obliged to institute Claim Petitions against these punishment orders on the basis of violation of Rule 37 as alleged by him that no show cause notice was issued against him before passing of these orders and opportunity of hearing was not given to him according to principles of natural justice as held by Hon'ble Supreme Court in Gurdev Singh (supra) after considering exposition of law propounded by constitutional Bench of Hon'ble Supreme Court in the case of Syed Qamarali (supra). As held by Hon'ble Supreme Court in Gurdev Singh (supra) in paragraph-8 that it will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. The other case law in the case of R. Sulochana Devi (supra) also does not help the respondent no. 1 in any manner.

81. As far as, the respondent no. 1 has contended that due to punishment orders dated 6.3.2010 and 28.5.2010, he has not been considered for next promotion in DPC held in October 2015 and December, 2016, Hon'ble the Supreme Court in the exposition of law mentioned by us has held that representation made by employee cannot extend/ enlarge period of limitation. There is no provision in Section 5 of the Tribunal Act, 1976 for condonation of delay and it prescribes one year for institution of claim petition by an employee. The right to sue first accrued for respondent no. 1 after communication of impugned punishment order dated 6.3.2010 and 28.5.2010. Therefore, Claim Petition Nos. 83 of 2016 and 84 of 2016 should have been instituted within one year from the date of communication of these punishment orders.

82. Moreover, if respondent no. 1 was waiting for decision of his representation dated 4.6.2010 although it was not maintainable before the disciplinary authority, if decision was not taken on his representation within six months right to sue accrued for him.

83. Likewise he preferred appeal on 8.4.2014, which was also barred by limitation because, according to provision of Rule 42 (2) of the Rules applicable to respondent no. 1. This appeal should have been preferred within one month from the date of communication of punishment orders. There is no substance in the argument of learned counsel for respondent no. 1 that cause of action finally arose on 6.1.2016, when the period of one month from the date of submission of last notice dated 5.12.2015 was expired and cause of action was running continuously in the present case. As held by Hon'ble Apex Court in S.S. Rathore (supra) if representation/appeal preferred by respondent no. 1 was not decided within six months, then on expiry of six months, the right to sue shall first accrue for respondent no. 1.

84. There is no substance also in argument of learned counsel for respondent no. 1 that cause of action was continuing upto 6.1.2016. Respondent no. 1 had not instituted claim petition nos. 83 of 2016 and 84 of 2016 within a period of one year from the date of passing of punishment orders dated 6.3.2010 and 28.5.2010 and/or six months after filing of appeal, which was filed after delay of about four years. Therefore, his appeal was also not filed within time of one month prescribed according to Rule 42 (2) of the Service Rules.

85. On perusal of impugned judgment dated 6.5.2016, it reveal that Tribunal has not considered the contentions of petitioners mentioned in paragraph-4 of written statement regarding period of limitation for institution of both the claim petitions no. 83 of 2016 and 84 of 2016. It is also pertinent to mention here that Tribunal has no jurisdiction to entertain claim petitions, which are barred by period of limitation. The claim petitions instituted by respondent no. 1 could not be entertained and considered on merits. If any suit/claim petition is instituted by the respondent after period of limitation, then right to sue exists, but remedy would go.

86. It is pertinent to mention here that punishment of censure entry has effect for five years only. It is relevant to mention here that the petitioners have contended in their written statement filed before the Tribunal, which are as under:-

"(i) A recovery order for Rs. 1,03,092/- was imposed on the petitioner vide order dated 29.08.2005 owing to the differences in the measurement of the client in the construction of Fartoda Stadium Madgaon, Goa.

(ii) Disciplinary proceedings have been initiated against the petitioner vide order dated 16.08.2014 for the irregularities he committed during foundation works of Chilla Ghat and Markaghat Bridges Over Yamuna.

(iii) A censure entry and recovery order of Rs. 37,436/- has been imposed on the petitioner vide order dated 30./09.2013 for illegally making correction in date of birth of Sri Hari Lal Khallasi and thereby causing financial loss to the Corporation while posted in Bridge Construction Unit, Banda.

(iv) The petitioner was suspended vide order dated 22.03.2011, while posted in Bridge Construction Unit, Faizabad for the financial irregularities committed by him.

(v) A ensure entry was awarded to the petitioner vide orders dated 04.02.2009 for the irregularities he committed in road works of Raebareli-Loharpur Karaya Bazar, Pratapgarh Highway. An appeal against this punishment is however, pending.

(vi) A censure entry was awarded to the petitioner vide order dated 06.03.2010 for not achieving the targets fixed for the financial year 2009-2010 during his posting at Bride Construction Unit, Gorakhpur."

87. It may be possible that in DPC held in the year 2015 and 2016, he was not considered for next promotion as Project Manager due to his unsatisfactory services and above-mentioned other punishments also. Therefore, for this new cause of action, he may seek relief before the Tribunal on the ground that he was not considered for next promotion.

88. On the basis of above discussion, facts and circumstances of the case and exposition of law propounded by Hon'ble Supreme Court regarding period of limitation for institution of claim petitions before Tribunal/court, the impugned judgment and order dated 6.5.2016 is not sustainable under law and is liable to be set aside. Both the aforesaid writ petitions are hereby allowed and impugned judgment and order dated 6.5.2016 is hereby set aside.

89. costs easy.

Order Date:- 7.5.2018

Virendra