Full Judgment
Dr. A.K. Mishra, Member (A)
1. The applicant has challenged the order dated 01.01.2009 of Additional Divisional Railway manager, Central Railway, Nagpur final Appellate Authority by which the penalty of removal from service was modified to that of reduction from the Grade Rs.5000-8000 to the Grade Rs. 3050-RSRP and his pay was fixed at Rs. 3050/- for a period of eight years with further direction that on restoration after expiry of said period the penalty would have effect on the seniority and future increments of the applicant. The intervening period from actual date of removal from service in terms of Sr. DCM’s order dated 17.12.2007 till resumption of duty in terms of this order was directed to be treated as dies non. The applicant has also challenged the order of removal passed by Senior Divisional Commercial Manager, Central Railway, Nagpur passed originally on appeal on 17.12.2007 and the original penalty order dated 26.09.2007 of the Disciplinary Authority (DA) of reduction of his pay by two stages. His prayer is to set aside all these orders and grant other relief which may be appropriate on the facts and circumstances of the case.
2. When the applicant was working as Head Trained Ticket Examiner, a major penalty charge sheet was issued to him on 29.06.2005 on the allegations of unauthorized absence from duty and submission of fraudulent medical certificate. On denial of charges, a regular inquiry was conducted in which the Inquiry Officer (IO) held that the charges were proved; a copy of the inquiry report was given to the applicant who made his representation to the DA who, in consideration of the findings of the inquiry report, the evidence on record, and the representation of the applicant held that the charges were proved and imposed the following penalty on the applicant:-
“Penalty of two stages in the same time scale reduced to Rs. 5150/- in the grade of Rs. 5000-8000 (RSRP) for a period of five years.”
3. The applicant submitted an appeal against the order of the DA and the AA decided to issue a notice to show cause why the penalty would not be enhanced. After going through the representation of the applicant and the evidence on record he enhanced the penalty to “removal from service with immediate effect.” Since this order merged with the order of the DA, the applicant filed an appeal to the next higher authority i.e. Additional Divl. Railway Manager who, in consideration of his appeal, modified the penalty in the following manner:-
“Reduction from rate Rs.5000-8000 to grade Rs. 3050-4590 (RSRP) by fixing pay at Rs. 3050 for a period of 8 years with immediate effect with further direction that on restoration after expiry of said period of 8 years, this will have effect on seniority and postponing of your future increments.”
3.1 The applicant submits that he filed a representation against this Appellate order to the General Manager (GM) on 11.02.2009, but there was no response from the GM; hence this OA.
4. At the time of hearing, learned counsel for the respondents raised two preliminary objections : (i) on the ground of jurisdiction and the second on the ground of limitation. According to him, the applicant was an employee of Central Railway and the impugned orders have been passed by the authorities located either at Nagpur or Jhansi. He further submits that the applicant was compulsorily retired in connection with another disciplinary proceeding and has taken his retirement benefits from Jhansi and according to his information the applicant is staying at Bhopal. Therefore, he submits that in the absence of a transfer petition and appropriate orders of the Hon’ble Chairman of CAT, this O.A. at Principal Bench is not maintainable.
5. Learned counsel for the applicant submits that the application has been filed by the applicant after he was compulsorily retired from Central Railway and at a time when he was residing at the address of Palam Gaon, New Delhi given in the OA. The applicant might have taken his retirement benefits at Jhansi, yet it does not prove that he was not residing at Delhi at the time the O.A. was filed. In view of the specific statement of the applicant that his address at the time of filing the applicant was at Delhi and the respondents have not controverted this statement by adducing any proof that the applicant was in fact a resident of Bhopal as claimed by the learned counsel for the respondents, we would not sustain this objection.
6. Learned counsel for the respondents forcefully submits that this application has been filed on 19.08.2010 when the last impugned order was passed on 01.01.2009. Though the applicant has filed an application for condonation of delay, no satisfactory explanation has been furnished to account for the delay in filing this O.A. He has cited a number of judgments in support of his contention that delay in taking recourse to legal remedies would deprive the petitioner the right of making a claim. He placed reliance on the following judgments:-
(i) Rattan Chand Samanta Vs. U.O.I., 1994 SCC(LandS) 182 which ruled that “delay deprives the right of the claim.”
(ii)S.S. Rathore Vs. U.O.I. and Ors., 1992(3) SCC 136 where it was held that “repeated representations do not extend the period of limitation.”
(iii)Bhoop Singh Vs. U.O.I., 1992 (3) SCC 136 where it was held that “the case should not be heard, howsoever meritorious, if it is hit by limitation.”
6.1 He vehemently contended that the representation dated 11.02.2009 addressed to GM was never received by them and the applicant has been put to strict proof of having made such a representation. He states that the so called receipt about postal certificate filed by the applicant in support of his contention was submitted along with the rejoinder only after the respondents categorically denied about having received the representation. If such a receipt was available to the applicant, he wondered why this receipt was not submitted along with the original application. Further, he submits that this receipt does not reveal the registration number, neither the address of the sender nor the date impressed through mechanical means. He referred to the decision of the Apex Court in the case Subash Chandra Verma and Others Vs. State of Bihar and Ors., 1995 Supp(1)SCC 325. The relevant extract of paragraph-25 runs as follows:-
“25..We are at a loss to understand why the petitioners chose to send the report (if at all it had been sent) under certificate of posting. As has rightly been pointed out by Mr. Gopal Subramanium, if really such a representation was made, nothing would have been easier than to deliver the same at the counter of the Service Commission and get a printed receipt in proof of having filed such a representation and get a printed receipt in proof of having filed such a representation. The High Court referred to Annexure 12 which is mentioned only in the rejoinder filed in CWJC No. 2512 of 1993. Therefore, that cannot have any credential value since by then the valuation of the answer books was over”
6.2 He also placed reliance on the decision of the Apex Court in the case State of Maharashtra Vs. Rashid B. Mulani, (2006) 1 SCC 407 in which in paragraph-17 the following observations about sending a communication by certificate of post have been made:-
”17. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case”.”
He informs that the Department of Posts have since done away with the practice of receiving letters under certificate of posting. For the aforesaid reasons, he argues, the claim of the applicant that the representation was sent on 11.02.2009 to the General Manager under Postal certificate and received by its officer cannot be accepted as credible. The normal procedure is to send such appeals/representations/petitions through departmental channel. In this case, the applicant was reinstated in service and there was no justification for him not to have sent his Revision Petition or the so called representation to the G.M. through official channel. Learned counsel submits that the denial of the respondents for having received such communication as well as their submission that this has been set up only for the purpose of circumventing the problem of limitation should be taken note of.
7. Learned counsel for the applicant has cited the following judgments in support of the prayer of the applicant for condonation of delay:-
(i) Madras Port Trust Vs. Himanshu International, 1979[4]SCC 175.
(ii) Divisional Manager, Plantation Division Vs. Munnu Barick, 2005 SCC [LandS] 200.
(iii) State of Bihar and Ors. Vs. Kamleshwar Pd. Singh, SLJ 2001[1] SC 76.
(iv) Improvement Trust Ludhiana Vs. Ujagar Singh, JT 2010[6] SC 205.
The ruling on which the learned counsel is placing reliance is that wherever there is a question of substantial justice, the technical consideration of limitation should not be allowed to stand in the way. However, Hon’ble Supreme Court in a recent judgment in the case of D.C.S.Negi Vs. Union of India and Ors. [SLP (Civil) No 7956/2011 decided on 07.03.2011 has observed that the Tribunal has to consider the issue of limitation even if this plea is not taken by the respondent authorities. Their observations read as follows:-
“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.”
8. Although MA-2151/2010 has been filed by the applicant for condonation of delay, no explanation has been offered to justify the delay. It is only stated that a representation had been made on 11.02.2009 against the impugned orders but there was no response from the General Manager. We have noticed the arguments convassed by the learned counsel for the respondents to assert that this representation was never received in the office of the GM. We also agree with the contention that the applicant having been reinstated in service, after the penalty of removal was modified, should have sent his Revision Petition through official channel. He has not given any reason why it was not done so, nor is there any explanation why it was not sent through registered post, if at all the applicant chose to send it on his own. We do not find any satisfactory explanation to account for the delay of over 8 months.
9. As stated earlier the MA-2151/2010 for condonation of delay does not reveal any reason in that regard either. In these circumstances, we sustain the preliminary objection of the respondents and dismiss this application as not maintainable on the ground of limitation. No costs.