Kiran Lata Kaushik Vs. Union of India Through Secretary, New Delhi and Another - Court Judgment

(ORAL)

By Hon’ble Mrs. Meera Chhibber, Member (J):

1. Applicant has challenged order dated 5.10.2005 (page 10) whereby she was removed from service after holding an enquiry.

2. It is stated by the applicant that she was served with a Memorandum dated 24.6.2003 with the following allegations:-

“ARTICLE OF CHARGE-1:

That the said Smt. Kiran Lata Kaushik while working as Receptionist entered in the office of Public Relations on 09.10.2002 unauthorisedly and took away a black diary intentionally wherein telephone number of all the Members of Parliament and the VIPs were written by the Office of the Public Relations. Such act has not only disturbed the smooth functioning of the P.R.O. Office, and has taken away the black diary without permission of the Officer-In-Charge of the P.R.O. Office.

ARTICLE OF CHARGE-2:

That the said Smt. Kiran Lata Kaushik while working as Receptionist was transferred/posted vide O.M. No.F.25-1/97-Estt.I dated 27.11.2002 to work as Receptionist at P.C. Block, Foyer under the supervision of the Dy. Chief Security Officer (DO), but she has failed to comply with the orders of the competent authority. She has not reported for duty since then. This amounts to disobedience of orders on her part and unbecoming of an Institute employee.

ARTICLE OF CHARGE-3:

That the said Smt. Kiran Lata Kaushik while working as Receptionist, even after her posting to work as Receptionist at P.C. Block, Foyer under the supervision of Dy. Chief Security Office. She has written her name in the Attendance Register and started marking her attendance off and on in the Establishment Section instead of reporting for duty at her place of posting at P.C. Block, Foyer. She is also in the habit of coming late and after marking her attendance, she goes out without prior permission of the superiors and thereafter her whereabouts are not known. This amounts to disobedience of orders on her part and unbecoming of an Institute employee.

ARTICLE OF CHARGE-4:

That the said Smt. Kiran Lata Kaushik while working as Receptionist in C.N. Centre on Shift duty at night from 9.00 PM to 7.00 AM in month of November, 1996, she failed to attend her duty on 01.11.96 and remained absent from duty unauthorisedly. Such act disrupted the smooth functioning of the patient care services and dereliction of duty.

ARTICLE OF CHARGE-5:

That the said Smt. Kiran Lata Kaushik while working as Receptionist in AIIMS Hospital on 12/13th November, 1997 and 03.12.97 and 06.12.97 left for home without any information or prior approval of the competent authority leaving behind blank signed admission face sheets with her husband to do the duties on her behalf in the Central Admission Office in her absence. Her husband was caught red-handed by Dr. I.B. Singh and Mr. J.K. Jain for trespassing and unauthorized entry into the Central Admission and Inquiry Office. This amounts to dereliction of duties, abdication of official function, mishandling of public money and misconduct on her part and unbecoming of an Institute employee.

ARTICLE OF CHARGE-6:

That the said Smt. Kiran Lata Kaushik while working as Receptionist at the Institute has violated Rule 16 of CCS (Conduct) Rules by taking loan from the various banks/financial institutions without taking prior permission of the competent authority. As per the provisions of Rule 16 of the CCS (Conduct) Rules, 1964, a Government servant should not lend or borrow or deposit money, as a principal of an agent to, or from or with, any person or firm or private limited company within the local limits of his authority or with whom he is likely to have official dealings or otherwise place himself under any pecuniary obligation to such person or firm or private limited company; or lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid. For the purpose, prior permission is essential. She is habitual to take loan from various banks/other organizations and thus violated Rule 16 of CCS (Conduct) Rules, which amounts to misconduct on her part and has acted unbecoming of an Institute employee.

ARTICLE OF CHARGE-7:

That the said Smt. Kiran Lata Kaushik while working as Receptionist at the Institute has violated Rule 17 of CCS (Conduct) Rules as she has taken loan/borrow money from various organizations/banks and she has failed to return the same on time and the Hon’ble Courts have directed in three cases for recovery of money from her salary. The Rule 17 of CCS (Conduct) Rules, a Government servant shall manage his private affairs as to avoid habitual indebtedness or insolvency whereas Smt. Kiran Lata Kaushik has failed to do so and She is habitual to take loan from various banks/other organizations and thus violated Rule 17 of CCS (Conduct) Rules, which amounts to misconduct on her part and has acted unbecoming of an Institute employee.

ARTICLE OF CHARGE-8:

That Smt. Kiran Lata Kaushik while working as Receptionist has taken loan from M/s Dewan House Development Finance Ltd., Nehru Place for purchasing of house without taking prior approval/permission of the competent authority. As per Rule 18 of the CCS (Conduct) Rules, 1964, a Government servant shall not except with the previous knowledge of the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name of any member of his family whereas Smt. Kiran Lata Kaushik has not given any intimation to the office regarding purchasing of house and therefore responsible for misconduct on her part and unbecoming of an Institute employee.

Smt. Kiran Lata Kaushik is, thus, responsible for gross misconduct, misbehavior, disobedience of order and has failed to maintain absolute integrity, devotion to duty and has acted in a manner of unbecoming of an Institute employee; thereby contravening Rule 3 (i) (ii) and (iii) and Rule 16, 17 and 18 of the CCS (Conduct) Rules, 1964 as applicable to the employees of the Institute.”

3. The Inquiry Officer gave his findings holding therein that charges No.1 to 4 were not proved while other charges were proved. Applicant had given a detailed representation against the findings, but disciplinary authority removed her from service without considering her contentions. Being aggrieved, she had filed an appeal on 18.10.2005 but till date the same has not been decided in spite of reminders given by the applicant on 3.7.2009 and 9.6.2011. She had even applied under RTI Act to know the status of her appeal but even that has not been responded to. She has thus prayed as follows:-

“(i) Quash and set aside order dated 5.10.2005 passed by respondent whereby applicant has been removed from service.

(ii) Quash and set aside findings submitted by the enquiry officer.

(iii) Direct the respondents to grant the applicant all consequential benefits.

(iv) Any other relief, which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case, may also be passed in favour of the applicant”.

4. We have heard counsel for the applicant. As per applicant’s own case she was removed from service by order 5.10.2005. It is stated by the applicant that against the above order, she had filed her appeal on 18.10.2005 but the same was not decided by the respondents. The present OA has been filed on 21.10.2011, i.e., almost after over a period of 6 years. As per Section 21 (1) of the Administrative Tribunals Act, 1985, the period of limitation prescribed is one year from the date of cause of action and in case any statutory appeal has been filed which is not decided, then the limitation period is 18 months from the date of cause of action. The present OA has been filed beyond the period of limitation, as such it is barred by limitation. Applicant has not even filed any application seeking condonation of delay. On the contrary, in para 3 of the OA, it is mentioned application has been filed within the limitation period as prescribed under Administrative Tribunals Act, 1985. How it is stated that the OA is within the limitation period could not be explained by the counsel for the applicant.

5. Counsel for the applicant submitted that since applicant had already filed statutory appeal which has not yet been decided which was followed by reminder/representation, therefore, limitation would not come in her way. We can’t accept this contention because now the law is well settled by the Hon’ble Supreme Court that mere filing of representation do not extend the period of limitation. In Secretary to Government of India Vs. Shivram Mahedu Gaikwad reported in 1995 (Supp.3) SCC 231 Hon’ble Supreme Court observed as follows:-

“2. The learned counsel for the Union of India raised a preliminary contention, namely, that the application was filed almost after about four years from the date of discharge and, therefore, it was clearly barred by Section 21 of the Administrative Tribunals Act, 1985. He pointed out that this question was squarely raised in the counter filed in answer to the respondent's application in the following terms:

"These respondents state that the applicant herein is challenging the order dated 7/10/1986 discharging him from the service and has filed this application on 14/9/1990, as such this application is barred by the provisions of limitation under Section 21 of the central Administrative Tribunals Act, 1985."

When we turn to the judgment of the tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7/10/1986 and the application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia. that could have been projected as a ground for condonation of delay under Ss. (3( of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the tribunal under Article 136, but it seems that the tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation. It is also difficult to understand how the tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section 21 of the Administrative Tribunals Act, it deserves to be dismissed”.

Similar view was reiterated in State of Orissa Vs. Chandra Sekhar Mishra reported in 2003 SCC (LandS) 878 wherein it was held by Hon’ble Supreme Court that Tribunal erred in entertaining the claim after limitation period was over. In the latest judgment given by the Supreme Court in the case of D.S. Negi Vs. Union of India and Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 the same position has been reiterated by observing 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”.

6.In view of above, a duty is cast on the Tribunal first to see whether an OA filed before it is barred by limitation or not. In the instant case, we have already noted above that the OA is barred by limitation, therefore, it has to be rejected on this ground alone. Moreover, it has been held by Hon’ble Supreme Court in Ramesh Chand Sharma etc. vs. Udham Singh Kamal and Ors, reported in 2000 (2) AISLJ S.C. 89, 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.”

Since applicant has not even filed an application seeking condonation of delay in this case, the delay cannot even be condoned as held by the Hon’ble Supreme Court.

7. In view of above, this OA is dismissed at the admission stage itself being barred by limitation. No Costs.