Delhi High Court
All India Institute Of Medical ... vs Prahlad Raut on 24 July, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 5977/2016
Reserved on: 28th March, 2017
% Date of Decision: 24thJuly, 2017
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ....Petitioner
Through Mr. R.K. Gupta and Mr. A.K. Singh,
Advocates.
Versus
PRAHLAD RAUT ....Respondents
Through Mr. Deepak Verma and Mr. K.R.
Sachdeva, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.
The All India Institute of Medical Sciences in this writ petition
impugns order dated 29th February, 2016, passed by the Principal Bench of
the Central Administrative Tribunal (Tribunal, for short) in OA No.
3381/2013.
2. OA No.3381 of 2013 was filed by Prahlad Raut, the respondent
before us, challenging the order dated 6th January, 2000, passed by the
Disciplinary Authority in exercise of the power conferred by Rule 19 (i) of
the Central Civil Services (Classification, Control and Appeal) Rules, 1965
(Rules, for short) removing him from service retrospectively from 16 th
September, 1993 i.e. the date of his conviction under Sections 356/379/411
of the Indian Penal Code, 1860 by the Metropolitan Magistrate.
3. The Tribunal in the impugned order has held that the order of removal
could not have been passed with retrospective effect from 16 th September,
1993. Secondly, a mere conviction in a criminal case cannot justify an order
under Rule 19, for the Rule postulates that the Disciplinary Authority must
be satisfied for reasons to be recorded in writing that the conduct of the
employee which had led to his conviction in the criminal trial was such that
the said punishment should be imposed. There is a difference between
―conduct which had led to his conviction‖ and the ―conviction‖ itself.
Reliance was placed upon the Full Bench's judgment of the Punjab and
Haryana High Court in Om Prakash Vs. The Director, Postal Services
(Post and Telegraphs Department), Punjab Circle, Ambala and Ors., AIR
1973 P & H 1, Hari Ram Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. &
Anr., 2006 (2) SLT 112 and UOI Vs. Tulsi Ram Patel, AIR 1985 SC 1416.
4. It is pertinent that we record the relevant facts. The respondent was
appointed and started working as a bearer with the petitioner Institute on 9 th
February, 1972. In 1987, he was promoted to the post of steward.
5. The respondent was also elected as an executive member of the
AIIMS Cooperative, Thrift and Credit Society. On 5th March, 1991, FIR
No.91 was registered by Police Station-Defence Colony under Sections
406/420/468/471/477A/120B of the Indian Penal Code, 1860 against the
respondent and others for causing pecuniary loss, by forging signatures, to
the tune of Rs.5,00,000/- to the Thrift and Credit Society. The respondent
was arrested on 5th June, 1991 and had remained in custody up to 12 th June,
1991. He was placed under deemed suspension from the date of his arrest
vide order dated 7th August, 1991 and paid Subsistence Allowance. The
aforesaid FIR was quashed in view of the settlement between the parties,
which was recorded by the High Court in Criminal M.C. No.3268/2012 and
Criminal M.A. No.16615/2012, S.P. Giri and Anr.Vs. State, Government
of NCT of Delhi & Anr. This order dated 2nd November, 2012 records that
an amount of Rs.2,00,000/- had already been paid by the respondent and the
remaining settlement amount of Rs.2,46,130/- was paid by way of banker's
cheque, a photocopy of which was placed on record.
6. Unknown to the petitioner Institute, while the respondent was under
suspension, FIR No.868/1991 was registered at Police Station-Connaught
Place, New Delhi against the respondent under Sections 356/379/411 IPC.
The charge was that the respondent had committed theft of a bag containing
Rs.290/- in cash, two lottery tickets belonging to complainant Jai Ram
behind Regal Cinema, and in front of the liquor shop, in Connaught Place.
The respondent was convicted vide judgment dated 15th September, 1993
passed by the Metropolitan Magistrate under Section 379 IPC. By order on
sentence dated 16th September, 1993, the respondent was released on
probation of good conduct and furnishing a personal bond and one surety of
Rs.5,000/- for a period of one year. This prosecution and ensuing judicial
orders were concealed and not brought to the notice of the authorities, i.e.
the petitioner Institute.
7. The respondent's conviction and order granting him probation in FIR
No. 868/1991 came to the knowledge of the petitioner authorities after about
7 years. They obtained a copy of the judgment/order. The Director of the
petitioner Institute vide memorandum dated 6th January, 2000 passed the
following order:-
―Whereas Shri Prahlad Raut, Steward (under suspension) from
5.6.1991 on charge of embezzling and mis-appropriation in view
of F.I.R. No.91 dated 3.3.1991 under Section
406/420/468/471/477-A and 120-B IPC
And whereas shri Prahlad Raut was later on charge for an
offence of theft of a bag in public place, he had been convicted by
the Court of Shri D.K. Saini, Metropolitan Magistrate, New Delhi
under section 356/379/411 IPC vide judgment dated 16.9.1993.
As whereas it is considered that the conduct of the said Shri
Prahlad Raut which had held to his conviction is such as to render
his further retention in the service of the Institute undesirable.
And whereas Shri Prahlad Raut was given an opportunity to
offer his written explanation.
And whereas the said Shri Prahlad Raut has given a written
explanation which has been duly considered by the undersigned.
Now, therefore, in exercise of the powers conferred by the
Rule 19 (1) of the C.C.S. (C.C.A.) Rule 1965 the undersigned
removes the said Shri Prahlad Raut from the service of the
Institute from the date of the conviction i.e. 16.9.1993.
Shri Prahlad Raut therefore is directed to deposit the
subsistence allowance as received by him from the A.I.I.M.S.
beyond 16.9.1993.‖
8. The respondent thereafter filed a statutory appeal to the President,
AIIMS which, as per the petitioner institute, was rejected in the same year,
i.e., 2000. A copy of the rejection order is not available and has not been
placed on record. The respondent claims that he is unaware of the decision
and the rejection order was never communicated to him.
9. After the judgment was reserved vide order dated 10 March, 2017,
the writ petition was listed for directions on 15th March, 2017 as it was
noticed on examining the file that the order of dismissal dated 6 th January,
2000 under Rule 19(i) of the Central Civil Services (Classification, Control
and Appeal) Rules, 1965 was challenged after nearly thirteen years in OA
No. 3381/2013. Parties were asked to address arguments on the said aspect,
as limitation was not urged and argued when the arguments were addressed.
Accordingly, arguments were heard and judgment reserved on 28th March,
2017.
10. On the question of limitation, the respondent's plea in the OA No.
3381/2013 was as under:-
"3 Limitation
The application is within the period of limitation as prescribed in
Section 21 of the A.T. Act, 1985. Moreover, the applicant challenges
a per se illegal order of removal from service with retrospective effect
as well as his pension/GPF is withheld and thus are continuing
wrongs.
The respondent along with OA No. 3381/2013 had filed an
application seeking condonation of delay and an affidavit stating that the
application was filed in exercise of abundant caution and also to comply
with the procedural requirements.
11. The argument was that the order of removal with retrospective effect
was void ab initio and hence the law of limitation would not apply to a
patently illegal order. In addition, the respondent had pleaded that Delhi
High Court had quashed FIR No. 91/1991 dated 5th March, 1991 registered
at Police Station Defence Colony vide order dated 2nd November, 2012 and
this order gave rise to a fresh cause of action. Further, the respondent had
made application/appeal dated 21st January, 2013 to the appellate authority
to review the order of removal, to which no response was received. Lastly,
it was observed that the respondent has a continuing and recurring cause of
action as the pension/provident fund amounts were illegally withheld and
that the respondent being 67 years of age, had retired. He was in a state of
penury and required money for his wife/family and himself.
12. In the reply filed by the petitioner Institute to the Original
Application, the question of limitation was left unanswered. However in a
detailed counter affidavit filed by the petitioner Institute, the OA was
opposed on the ground of delay which it was stated was not explained
properly and the application of the respondent for condonation of delay was
devoid of merit. It was argued that the applicant having approached the
Tribunal after a delay of 13 years, the OA was misconceived.
13. The Tribunal in the impugned order referring to the question of
limitation and condonation of delay observed as under:-
―9. At the very outset, learned counsel for contesting respondents
has raised a preliminary objection of limitation in filing the instant
OA after expiry of the statutory period. He urged that the impugned
order (Annexure A-1 Colly) was passed on 06.01.2000 whereas this
OA was filed by the applicant on 23.09.2013.
10. On the contrary, learned counsel for the applicant has
submitted that although there is no actual delay, nevertheless he has
filed a Miscellaneous Application for condonation of delay in order to
avoid any technical objection. In this regard he contended that the
impugned order dated 06.01.2000 is void ab initio, per se illegal and
the same gave a recurring cause of action to the applicant. It has also
been argued that the applicant has filed the appeal dated 23.02.2000
(Annexure A-5 Colly) to the Appellate Authority (President, AIIMS)
which was received on 25.02.2000 by the office of the President,
AIIMS, New Delhi. It was also stated that the applicant subsequently
sent his representation dated 21.09.2013 (sic. 21.01.2013) (Annexure
A-6 Colly) to the President, AIIMS but no decision has yet been
communicated to the applicant. Hence, the main OA is within
limitation.
11. Having considered the matter, we are of the firm view that the
OA was filed within the period of limitation. It is not a matter of
dispute that the punishing authority has retrospectively removed the
applicant from service with effect from 16.09.1993, that being the
date of his conviction in a criminal case by means of impugned order
dated 06.01.2000. Such orders are illegal, void ab initio and can be
challenged at any time. The Hon'ble Apex Court in a celebrated
judgment in the case of State of Madhya Pradesh Vs. Syed Qamarali
1967 (1) SLR 228, which was subsequently followed in many
decisions, has authoritatively ruled that the order of dismissal having
been made in breach of mandatory provision of the rules, such order
of dismissal had, therefore, no legal existence and it was not
necessary for the respondents to have the order set aside by the court.
The defence of limitation which was based only on contention that
the order has to be set aside by a court before it became invalid must,
therefore, be rejected.
12. Not only that, the applicant claimed that he has filed the appeal
on 23.02.2000 (Annexure A-5 Colly) to the Appellate Authority
which was received by the office of the President, AIIMS, on
25.02.2000. Subsequently, he moved a representation dated
21.01.2013 (Annexure A-6 Colly) claiming all the consequential
benefits by ignoring the impugned removal order.
13. The contesting respondents have neither specifically denied nor
produced any cogent record even to indicate that applicant has not
filed any appeal (Annexure A-5 Colly)/representation (Annexure A-6
Colly) or the same were decided by the Appellate Authority.
Moreover, the applicant has claimed all consequential benefits along
with amount of pension and other emoluments along with interest,
which to our mind, is recurring and continuing cause of action.
14. Thus, seen from any angle, it cannot possibly be said that the
OA filed by the applicant is barred by limitation as contrary urged on
behalf of respondents. Hence, it is held that the main OA filed by the
applicant is within the prescribed period of limitation and the crux of
law laid down in Syed Qamarali (supra) is fully applicable in the
present case.
15. Once it is held that the main OA has been filed within the
period of limitation, learned counsel for applicant then contended
with some amount of vehemence that there is no provision of
law/rules that the applicant can retrospectively be removed from his
service with effect from 16.09.1993, the date of his conviction, that
too, simply on the ground of his conviction in a criminal case by the
impugned order dated 06.01.2000 by the competent authority.‖
14. Having examined the issue and question of limitation, it is difficult to
accept the aforesaid reasoning and the finding of the Tribunal that
application for condonation of delay was not required to be filed or
considered as the OA was filed within the limitation period. Validity or
illegality of the order challenged would not decide and determine whether or
not an OA has been filed within the prescribed limitation period. This is not
a relevant or prescribed consideration. The cause of action and the date
when it accrued are determinative. On occasions, illegality etc. of the
impugned order/action are noticed, as due consideration is given to these
aspects when examining the question whether or not to condone the delay.
15. Reliance placed by the Tribunal on the decision of the five Judge
Bench of the Supreme Court in State of Madhya Pradesh Vs. Syed
Qamarali (1967) 1 SLR 228, is not apposite. Article 120 under the
Limitation Act, 1908 was the residuary Article which had prescribed a
period of limitation of six years. This period has been reduced to 3 years
under Article 113 of the Limitation Act, 1963. In Syed Qamarali (supra)
the Supreme Court held that the order of termination was invalid, being
contrary to paragraph 241 of the applicable regulations. However, the said
suit was within the period of limitation as the appeal was rejected by the
Provincial Government on 9th April, 1947 and the suit was filed on 8th
December, 1952. This crucial aspect in Syed Qamarali (supra) was
highlighted by the Supreme Court in State of Punjab and Another Vs.
Gurdev Singh (1991) 4 SCC 1 for the aforesaid reasons [See paragraph 12].
16. The judgment in Gurdev Singh (supra) also holds that an order of
dismissal would remain at least de-facto operational until it is declared void
or a nullity by a competent body or court. Even if the order suffers from
illegality, it has to be challenged in accordance with law to declare it void
and null. In Gurdev Singh (supra), it was observed:-
"8. But nonetheless the impugned dismissal order has at least a de
facto operation unless and until it is declared to be void or nullity by a
competent body or court. InSmith v. East Elloe Rural District
Council [1956 AC 736, 769 : (1956) 1 All ER 855, 871] Lord
Radcliffe observed: (All ER p. 871)
―An order, even if not made in good faith, is still an act capable of
legal consequences. It bears no brand of invalidity on its forehead.
Unless the necessary proceedings are taken at law to establish the
cause of invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most impeccable
of orders.‖
9. Apropos to this principle, Prof. Wade states [ See Wade:
Administrative Law, 6th edn., p. 352] : ―the principle must be equally
true even where the ‗brand' of invalidity‖ is plainly visible; for there
also the order can effectively be resisted in law only by obtaining the
decision of the court. Prof. Wade sums up these principles: [ Ibid.]
―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.‖
10. 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.‖
17. Gurdev Singh (supra) also holds that judgments or the view that a
suit is not governed by the law of limitation runs foul of the Limitation Act,
for the said statute was intended to prescribe time limit for all suits
conceivable. Reference was made to Section 2(j) which defines ―prescribed
period‖ and Section 3 to observe that it is the function of the Court on
presentation of the plaint to examine whether, on the assumed facts, the
plaint has been filed within time.
18. The order of removal was passed on 6th January, 2000. The
respondent had filed an appeal on 25th February, 2000. It is the case of the
respondent that the appeal was never disposed of by the Appellate Authority
as the respondent had not received the rejection order. The petitioner
Institute has denied the said statement and on the contrary, professed that
the appeal filed by the respondent was rejected in 2000. However, the
petitioner Institute has failed to file a copy of the order rejecting the appeal.
Perhaps, the time gap of more than 13 years makes it impossible for them to
trace out the old relevant records. The respondent is also not forthright. His
case, as pleaded, is that he never received, or was not served with the
appellate order rejecting his appeal.
19. The question is whether in terms and as per the statutory provisions,
the OA was filed within the limitation period as prescribed by the
Administrative Tribunals Act,1985, even if we assume that the appeal
preferred by the respondent was never decided. If not, the second issue
which arises for consideration is whether the delay of 13 years should be
condoned.
20. Sections 20 and 21 of the Administrative Tribunals Act,1985 (1985
Act) are relevant for the purpose of deciding the two questions and read as
under;-
"21. LIMITATION. -
(1) A Tribunal shall not admit an application, -
(a) in a case where a final order such as is mentioned in clause (a) of
sub-section (2) of section 20 has been made in connection with the
grievance unless the application is made, within one year from the
date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned
in clause (b) of sub-section (2) of section 20 has been made and a
period of six months had expired thereafter without such final order
having been made, within one year from the date of expiry of the said
period of six months.
(2) Notwithstanding anything contained in sub-section (1), where -
(a) the grievance in respect of which an application is made had
arisen by reason of any order made at any time during the period of
three years immediately preceding the date on which the jurisdiction,
powers and authority of the Tribunal becomes exercisable under this
Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been
commenced before the said date before any High Court, the
application shall be entertained by the Tribunal if it is made within
the period referred to in clause (a), or, as the case may be, clause (b),
of sub-section (1) or within a period of six months from the said date,
whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub-
section (2), an application may be admitted after the period of one
year specified in clause (a) or clause (b) of sub-section (1) or, as the
case may be, the period of six months specified in sub-section (2), if
the applicant satisfies the Tribunal that he had sufficient cause for not
making the application within such period."
XXXX
20. Application not to be admitted unless other remedies
exhausted
(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.
(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.‖
21. Section 20 (2) read with Section 21(1) is clear and lucid that if a
person or officer has filed an appeal and a final order has been passed, the
same can be challenged in an Original Application before the Tribunal,
within the time and limitation period as specified. Section 21 stipulates and
prescribes the limitation period of one year for filing an Original
Application. As per clause (a) to sub-section (2) of section 20, the cause of
action would have arisen on the date of making of the penalty or appellate
order, whichever is later. The OA is required to be filed within one year
from the later date. However, where the employee has preferred an appeal
but no final order has been passed by the person or the authority competent
to pass such order, the employee can approach the Tribunal after a period of
six months from the date on which the appeal was preferred or
representation was made. In case the appeal was not disposed of, the cause
of action would have arisen under clause (b) to sub-section (1) of Section
20, i.e. six months after filing the appeal and non-disposal of the same. The
period of limitation would be one year from the date such cause of action
arose, i.e. the limitation period commenced upon expiry of six months from
the date of preferring the appeal. This principle is not applicable when the
remedy availed of, i.e. appeal or representation is not provided by law, i.e.
the statute or the Rules.
22. In S.S. Rathore Vs. State of Madhya Pradesh, (1989) 4 SCC 582, a
Constitution Bench of seven Judges of the Supreme Court decided the
question relating to commencement of a cause of action when the appellate
order affirms or partly affirms the order of punishment passed in the
backdrop of ‗doctrine of merger'. It was observed that if the original order
of punishment is taken to be the date on which the cause of action first
accrued, it would lead to hardship. Moreover, an Original Application or a
writ petition would not be maintainable before availing departmental or
alternative remedy, which may possibly take an unduly long time. While
examining the said aspect, the Constitution Bench had referred to sub-
sections (2) and (3) of Section 20 of the 1985 Act and held:-
"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
invocable 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.‖
The decision of the Constitution Bench clarifies that repeated
unsuccessful representations not provided by law would not confer any
fresh right or give rise to a continuous cause of action.
23. The law of limitation is founded on public policy. Its aim is to secure
quietus on stale and dead disputes. A person should not be allowed to
agitate his claim after a long delay as belated claims often suffer from lack
of evidence owing to dissipated records and material, thus making it
difficult to uncover the truth. Limitation suppresses fraud and perjury and
also discourages litigation.
24. Even if it is assumed that there is no specific order rejecting the
appeal, the respondent had kept quiet and did not take any further action or
steps from 2000 till filing of the OA on or about 24 th July, 2013. The
respondent now wants to put the clock back by 13 years possibly because in
the meanwhile he has compounded and settled the criminal case by making
payment in FIR No. 91/1991. In the second FIR No. 868/1991, his
conviction was concealed. He has been released on probation of good
conduct and furnishing a personal bond.
25. The fact that the respondent was silent for nearly 13 years supports
the stand of the petitioner- Institute. An employee who has been dismissed
from service and whose appeal is pending would or is likely to insist on an
early hearing, and in the case of delay protest by making representations to
the authorities concerned. It is not the case of the respondent that he had
ever corresponded or made any representation to the petitioner Institute
between 2000-2012. The reasonable inference to be drawn from such
conduct is that the respondent was aware of the fate of his appeal and
therefore chose to remain quiet. In the letter written by the respondent on
21st January, 2013 he has not mentioned his appeal or its fate. He had
prayed for quashing/setting aside the order dated 6th January, 2000 which
removed him from service. The letter dated 21st January, 2013 also states
that the respondent was placed under deemed suspension as he was detained
for more than 48 hours. It was claimed that the suspension was never
revoked or continued as required under the rules. The respondent had
pleaded that he was not the main accused.
26. Faced with the aforesaid circumstances, the respondent has submitted
that the petitioner should not take up the plea of limitation. Reference was
made to the decision of the Supreme Court in S.R. Bhanrale versus Union
of India and Others, 1997 (1) All India Service Law Journal 14. This was
an agonising case in which retirement benefits were not settled and paid to
the Government employee upon his superannuation on 31 st July, 1984. He
had then filed an application before the Tribunal in 1987. In these
circumstances, the Supreme Court felt that the retirement dues were
wrongly withheld and it was unfair, unjust and improper on the part of the
Government of India to plead bar of limitation. The said case proceeded on
a different factual matrix as payment of retirement benefits had remained
pending. Further, the period of limitation was not as prolonged as in the
present case. In Ajit Singh versus Union of India and Others, 2002 (1) All
India Service Law Journal 188, it was held that entitlement to pension is a
recurring cause of action. On the said aspect, we would like to refer to the
decision of the Supreme Court in Union of India and Others versus
Tarsem Singh, (2008) 8 SCC 648 wherein it has been held as under:-
"7. To summarise, normally, a belated service related claim will be
rejected on the ground of delay and laches (where remedy is sought by
filing a writ petition) or limitation (where remedy is sought by an
application to the Administrative Tribunal). One of the exceptions to the
said rule is cases relating to a continuing wrong. Where a service related
claim is based on a continuing wrong, relief can be granted even if there
is a long delay in seeking remedy, with reference to the date on which
the continuing wrong commenced, if such continuing wrong creates a
continuing source of injury. But there is an exception to the exception. If
the grievance is in respect of any order or administrative decision which
related to or affected several others also, and if the reopening of the issue
would affect the settled rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment or refixation of
pay or pension, relief may be granted in spite of delay as it does not
affect the rights of third parties. But if the claim involved issues relating
to seniority or promotion, etc., affecting others, delay would render the
claim stale and doctrine of laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears for a past period is
concerned, the principles relating to recurring/successive wrongs will
apply. As a consequence, the High Courts will restrict the consequential
relief relating to arrears normally to a period of three years prior to the
date of filing of the writ petition.
8. In this case, the delay of sixteen years would affect the consequential
claim for arrears. The High Court was not justified in directing payment
of arrears relating to sixteen years, and that too with interest. It ought to
have restricted the relief relating to arrears to only three years before the
date of writ petition, or from the date of demand to date of writ petition,
whichever was lesser. It ought not to have granted interest on arrears in
such circumstances.‖
Learned counsel for the respondent also referred to the decision of the
Punjab and Haryana High Court in Sardara Singh versus Union of India,
(1992) 6 SLR 683, wherein the High Court noticed that the petitioner had
filed a writ petition after a lapse of more than 40 years, but he had been
regularly making representations for disability pension. The Court observed
that approaching the Court in the matter of pension cannot be completely
defeated for this reason. The aforesaid decision/ratio has to be read in the
light of the ratio laid down by the Supreme Court in the case of Tarsem
Singh (supra). Here, we are not concerned with pensionary benefits. The
question involved in the present case relates to order of termination or
removal from service. Similarly, reference to State of Punjab through
Collector Patiala and Others versus Amar Singh, Constable, (1990) 1 SLR
763, is of no avail as the Court had held that the respondent had a recurring
cause of action, a concept that has been dealt with and explained in the
context of pension in Tarsem Singh (supra). The present case would not be
a case of continuing cause of action as the employer-employee relationship
stood terminated when the order dated 6 th January, 2000 was passed. The
cause of action arose at that time for the order of removal could and should
have been challenged within the limitation period before the Tribunal.
27. In the aforesaid circumstances, it has to be held that the OA preferred
by the respondent was barred by limitation, not by a few days but for
periods spanning more than 13 years. Keeping in view the extraordinarily
prolonged delay of 13 years and the explanation and reason furnished for
the same by the respondent, we do not think that the delay in filing the OA
and approaching the Tribunal can be ignored and condoned. Doing so would
distort and impair justice. Furthermore, as the period of delay is rather long,
even an order of remand to the Tribunal to examine and pass an order on the
application for condonation of delay would be a futile and unnecessary
exercise.
28. In the light of the aforesaid discussion, we would allow the present
writ petition and set aside the impugned order for the reason that the OA
itself was barred by limitation and delay should not have been ignored. OA
No. 3381/2013 filed by the respondent would be treated as dismissed. There
will be no order as to costs.
Sd/-
(SANJIV KHANNA)
JUDGE
Sd/-
(CHANDER SHEKHAR)
JUDGE
JULY 24th ,2017
NA/VKR/ssn
