1. By virtue of this OA applicant, an ex-Clerk, has impugned respondents' order dated 17.8.1984, whereby in pursuance of disciplinary proceedings a major penalty of compulsory retirement has been inflicted upon him. Also assailed is an order passed on 10.1.2000, whereby the request of applicant for grant of retiral benefits has been turned down.
2. A brief factual matrix transpires that applicant, who was initially appointed as a Lower Division Clerk on 27.5.1964, was granted quasi-permanency on 27.5.1968. Due to some indifferences and bias of one officer, namely, Shri Surinder Singh applicant was transferred to Madras, which he had responded to by annexing his certificate of illness as well as of his wife due to Tuberculosis of ovary. However, non-joining of applicant resulted in a memorandum dated 15.11.1980 issued to him under Rule 14 of the CCS (CCA) Rules, 1965, whereby he has been alleged to have infringed the provisions of Rule 3 of the CCS (Conduct) Rules, 1972 by remaining unauthorizedly absent and not reporting to the transferred place.
3. The aforesaid enquiry when proceeded the enquiry officer (EO) vide its detailed finding did not establish the charge against applicant.
4. The disciplinary authority (DA) disagreed with the findings of the EO and imposed upon applicant, without affording a reasonable opportunity in violation of principles of natural justice, a major penalty of compulsory retirement. Applicant, from time to time requested the respondents through his representation against the penalty as well as grant of retiral benefits, which when responded to led to filing of Writ Petition No. 40795 of 1999 before the High Court of Allahabad, wherein on 23.9.1999 an order passed directed applicant to prefer a representation and the same has to be disposed of by the respondents by a speaking order and in the event applicant's claim for retiral benefit is not found apt, reasons are to be recorded specifically.
5. As a result thereof, applicant's representation for pension was turned down on 10.1.2000 as well as his request against quashing of the compulsory retirement. This was assailed by applicant bonafidely before the High Court of Allahabad in WP No. 19508/2000, wherein an order passed on 19.9.2005 accorded liberty to applicant to move before the Tribunal and to pray for condonation of delay when he was bonafidely pursuing a wrong remedy. As a result thereof challenge to the impugned orders as well as MA-2476/2005 seeking condonation of delay wherein applicant has stated that when his representation against the penalty has not responded to led to filing of the Writ Petition and on liberty he has been filing the OA, which is neither willful nor deliberate. It is also stated that the claim of applicant is meritorious.
6. Respondents' counsel responded to MA for condonation of delay, wherein it is stated that delay relating to retiral benefits if condoned respondents have no objection but to the issue of compulsory retirement which has been inflicted by an order passed on 17.8.1984 the delay of more than 15 years without any credible reasons cannot be countenanced.
7. Before proceeding to the merits, the preliminary objection has to be adjudicated.
8. On careful consideration of the rival contentions of the parties on this issue delay though defeats justice and has to be applied with its entire optimum rigor, yet it is not a mantra to be followed in each case. The circumstances of a particular case coupled with just and sufficient cause of delay is relevant. It is also trite that length of delay is immaterial when substantial question of law on a meritorious claim is presented before the Court. A judicial forum has to dispense justice. Justice, which is not to deprive a legitimate right to be defeated on mere technicalities.
while dealing with the issue of delay in preferring a claim, observed as under:In State of Kerala v. E.K. Kuriyipe it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependent upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Naths it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits.In O.P. Kathpalia v. Lakhmir Singh a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.
Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained" does not mean that a pedantic approach should be made. The doctrine must be applied in a rational, common-sense, pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the State is the applicant.
The delay was accordingly condoned.
13. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause.
Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Parkash Kalra this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.In G. Ramegowda v. Spl. Land Acquisition Officer it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers.
But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters.
Implicit in the very nature of governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.
15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while the State is an impersonal machinery working through its officers or servants.
10. Having regard to the above, we have no doubt in our mind that considerable delay is on account of procedural intricacies. The pragmatism in justice-oriented approach should be meritorious but not on a technical objection. As sufficient cause is shown or established, the clash between the delay and substantial cause of justice, the latter has to be emerged victorious.Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Munnu Barrick and Ors. held that a liberal view should be taken in case of delay when substantial justice has to be imparted.
12. In Rattan Singh v. Vijay Singh 2001 (1) SCC 469, the Apex Court emphazied on a liberal and broad based construction in the matter of limitation.
13. As held by the Apex Court in Madras Port Trust v. Himanshu International , Government should be precluded to take technical plea to defeat a cause of justice.A. Mohan Lodh v. State of Tripura 2004 SCC (L&S) 10, that though the power of limitation is discretionary, yet it has to be liberally construed.State of Bihar v. Kameshwar Prasad Singh 2001 (1) SCSLJ 76 that delay should invariably be condoned on sufficient cause to dispense justice if the explanation of delay does not smack of malafide or show dilatory tactics, Court must show utmost consideration.
16. As held by the Apex Court in SDO, Telegraph v. Presiding Officer, CGIT 2006 AIR SCW 900 that pursuing remedies in wrong forum is a justification for condonation of delay.
17. Moreover, claim of pension is a continuing cause of action and recurring one, which cannot be defeated on a technical issue of limitation.
18. Right to pension is a fundamental right which has to override any other provisions, which are inconsistent or imposing unreasonable restriction on the legitimate right as held by the Apex Court in the case of D.S. Nakara v. Union of India and Ors.
19. In the light of above, the applicant, who has been unceremoniously in utter violation of principle of natural justice on a disagreement by the Disciplinary Authority without following due process of law, when compulsorily retired, made representations to the authorities which were composite i.e. asking for withdrawing the order of compulsory retirement and grant of pensionary benefits clearly shows that the applicant was hectically and persistently pursuing his remedy against compulsory retirement before the departmental authorities. Lastly, when nothing has turned out in the said exercise, led to filing of the Writ Petition before the Allahabad High Court. No doubt, the representations referred to before the High Court, were cumulatively made assailing not only withdrawal of the order of compulsory retirement but also grant of pensionary benefits. Dismissal of Writ Petition with liberty to the applicant to make a representation afresh and consideration thereof to the right of pensionary benefits to applicant was mandated. What has been done by the respondents in their impugned order dated 10.01.2000 is to reject his claim on the ground that the applicant had not completed 20 years of service and as per Rule 11 (1)(a) of CCS (Temporary Service) Rules, 1965 an amount pertaining to gratuity was accorded to him. The plea of compulsory retirement and challenge thereof has been turned down only on the ground of delay. No meritorious consideration has taken place thereof.
20. The applicant also pursued his remedy wrongly before the High Court instead of the Tribunal for which the period from 1995 to 2004 has been clearly condoned for pursuing his remedy in a wrong Forum before the High Court. This leaves no doubt in our mind that the applicant's hot pursuit for his legitimate right has been defeated by the respondent on the basis of their order dated 17.08.1984 when perused clearly establishes that whereas the Enquiry Officer has exonerated the applicant of the charges, yet on disagreement the applicant was compulsorily retired and he was not afforded a reasonable opportunity to show cause which turned in gross violation of the principles of natural justice. As the claim of the applicant is meritorious and substantial question of law and impart of substantial justice is implicated, the decision of the respondents on administrative side or may be acting as a quasi-judicial authority, while acting as public functionary, is far from fair and impartial, rather than this absolute discretion has been exercised non-judiciously which cannot be permitted in the light of the decision of the Apex Court in Union of India v.Kuldeep Singh 21. In the light of above as we find that from 1995 till the filing of the present OA, the applicant's delay would be immaterial. The delay from 1984 till 1999 is bonafide with a sufficient cause as has been established on record and when a substantial question of law is involved on a meritorious claim coupled with an admission of the respondents in their impugned order as to no objection in response to the MA for condonation of delay to deal with the claim of the retiral benefits of the applicant for which delay could be condoned is not possible without adjudicating the legality of compulsory retirement, as without its adjudication the right of applicant for pension would not be crystallized. Therefore, the delay, in the interest of justice, is hereby condoned and MA is accordingly allowed.
22. On merit, leaving apart other submissions, it reveals that there has been a gross violation of principles of natural justice. Since the Enquiry Officer has not held the charges proved against the applicant, the Disciplinary Authority, on disagreement, imposed a penalty of compulsory retirement upon the applicant. A copy of Enquiry Report was served along with the order on the applicant. Though this procedure of supplying a copy of the enquiry report is prospective from 22.11.1992, as held by the Apex court in the case of Union of India v. Mohd. Ramzan Khan , yet the decision of the Apex Court in Narayan Mishra v. State of Orissa 1969 (2) SLR (SC) 658, which is pre-adjudication of this issue before Ramzan Khan's case, held as follows: (6) NOW if the Conservator of Forests intended taking the charges on which he was acquitted into account, it was necessary that the attention of the appellant ought to have been drawn to this fact and his explanation, if any, called for. This does not appear to have been done. in other words, the Conservator of Forests used against him the charges of which he was acquitted without warning him that he was going to use hem. This is against all principles of fair play and natural justice. If he Conservator of the Forests wanted to use them, he should have apprised him of his own attitude and given him an adequate opportunity. Since that opportunity was not given, the order of the Conservator of Forests modified by the State government cannot be upheld. We accordingly set aside the order and remit the case to the Conservator of Forests for dealing with it in accordance with law. If the Conservator of Forests wants to take into account the other two charges, he shall give proper notice to the appellant intimating to him that those charges would also be considered and afford him an opportunity of explaining them. The appeal is therefore allowed. The costs will abide by the ultimate result.
23. Having regard to the above, the ratio of the said case mutatis mutandis, on all fours, covers the present issue as the applicant was not afforded an adequate opportunity by bringing to his attention the disagreement and seeking explanation, the punishment cannot be sustained in law. As the applicant has since attained the age of retirement on superannuation, there would be a futile exercise to remand back this case to the respondents, as the issue involved is restricted to the entitlement of pensionary benefits to the applicant.
24. Though the respondents' counsel Shri Jain vehemently opposed the contention of the learned Counsel for the applicant with regard to the issue of limitation, on merits, the established position as to violation of principles of natural justice could not be logically rebutted. Leaving the other pleas open, the OA deserves to be partly allowed. The impugned order is set aside and as a result thereof the applicant would be treated deemed in service from 31.08.1984 till his attaining the age of superannuation. However, the interregnum period would be treated as qualifying service for pension and other retiral benefits but shall not be treated for any other purposes. Accordingly respondents, on the basis of qualifying service deeming the applicant to be a permanent employee, should fix his pension and other retiral benefits and accord the arrears admissible to him from the date he attained the age of superannuation. This exercise shall be done within a period of three months from the date of receipt of a certified copy of this order. OA stands accordingly disposed of. There will be no order as to costs.