ORDER (ORAL)
Mrs. Meera Chhibber, Member (J)
1. Applicant has challenged order issued on 26.6.1995 (page 19A) whereby his services were terminated under Rule 5 (1) of CCS (Temporary Service) Rules, 1965.
2. It is submitted by the applicant that he was appointed as a member of Delhi Police with effect from 5.2.1993 as a Constable. He had declared himself as Scheduled Tribe by mentioning that he belongs to Bawaria Caste. To his surprise he was terminated from service vide order dated 26.6.1995 illegally. Orally he was informed that he did not belong to ST.
3. It is submitted by the counsel for the applicant that termination was absolutely illegal and arbitrary as no reasons were given why his services were being terminated, therefore, he gave a representation on 9.5.1996 followed by reminders dated 22.3.2004 and 21.4.2012 but no reply has been given, therefore, in these circumstances, he had no other option but to file the present OA.
4. It is stated by the counsel for the applicant that on similar facts and circumstances one Ex-Constable Rohtas Kumar filed OA No.639/1997 which was allowed on 5.12.1997 pursuant to which Rohtas Kumar was reinstated in service. He has thus prayed that the same relief may be given to the applicant as well.
5. We have heard counsel for the applicant and perused the pleadings as well.
6. Admittedly, applicant was terminated under Rule 5 (1) of CCS (Temporary Service) Rules, 1965, as back as on 26.6.1995 whereas the present OA has been filed on 18.7.2012, i.e., after over a period of 17 years, that too without filing any application seeking condonation of delay. It is definitely barred by limitation because under Section 21 of the Administrative Tribunals Act, 1985, period of limitation prescribed is one year from the date of cause of action and in case a representation is made and not decided, then within 18 months from the date of cause of action. In para 3 applicant has specifically stated that the OA is within the period of limitation as prescribed in Section 21 of the Administrative Tribunals Act, 1985, which is a wrong statement. The law on the subject of limitation is well settled by now. In Secretary, Government of Indian Vs. Shivram H. Gaikwad reported in 1995 (Supp.3) SCC 231. In the said case applicant was dismissed on 7.10.1986 whereas petition was filed in the Tribunal in 1990. Tribunal had reinstated him with full back wages without considering the limitation. The order of the Tribunal was set aside by the Supreme Court. Similarly in State of Orissa Vs. Chandra Shekhar Mishra reported in 2003 SCC (LandS) page 878-A, Hon’ble Supreme Court reiterated that if a person had approached Tribunal after 14 years, Tribunal erred in entertaining the claim after limitation period was over. There are number of judgments but latest on this point is in the case of U.O.I. Vs. M.K. Sarkar, reported in 2010 (2) SCC 58, wherein it has been reiterated that limitation has to be counted from the date of original cause of action and belated claims should not be entertained. It was held as follows:-
The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a court or tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `stale' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.
Similarly it has been held by the Hon’ble Supreme Court in the case of D.C.S. Negi Vs. U.O.I. and Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 as follows:-
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads 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.
A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant
From above judgments it is clear that a duty is cast on the Tribunal to first examine the issue of limitation. It has also been reiterated that stale claims should not be entertained.
7. We have no hesitation in concluding that this OA is not only hopelessly barred by limitation as it has been filed after 17 years from the date of cause of action as such is a belated claim but applicant has not even filed an application seeking condonation of delay. In Ramesh Chand Sharma etc. vs. Udham Singh Kamal and Ors, reported in 2000
(2) AISLJ S.C. 89, Hon’ble Supreme Court observed as under:
7. On perusal of the materials on record and after hearing Counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21 (3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the O.A. filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985.
It has been held by the Supreme Court in above judgement that limitation cannot even be waived, unless it is applied for. In these circumstances, the OA has to be dismissed at the admission stage on the ground of limitation. Reliance has been placed by the counsel for the applicant on the case of Rohtas Kumar but he has himself stated that Shri Rohtas Kumar had approached the Tribunal in 1997 whereas applicant has filed the O.A. in 2012, applicant cannot compare himself with Rohtas Kumar. In Ratan Chandra Sammanta and Ors vs. Union of India and Ors (JT 1993 (3) SC 418), it has been held by the Honble Supreme Court that delay deprives the person of the remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well. It was held as follows:-
“The petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned Counsel for petitioners that they may be permitted to produce their identity cards etc., before opposite parties who may accept or reject the same after verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. and not for the sake of roving enquiry leaving scope for manoeuvring. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well.
8. In view of above, we do not find any merit in the OA. The same is accordingly dismissed at the admission stage itself. No costs.