Full Text
HIGH COURT OF DELHI
WRIT PETITION (CIVIL) No. 5977/2016
Through Mr. R.K. Gupta and Mr. A.K. Singh, Advocates.
Through Mr. Deepak Verma and Mr. K.R.
Sachdeva, Advocates.
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.
JUDGMENT
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 16th September, 1993 i.e. the date of his conviction under Sections 356/379/411 of the Indian Penal Code, 1860 by the Metropolitan Magistrate. 2017:DHC:3823-DB
3. The Tribunal in the impugned order has held that the order of removal could not have been passed with retrospective effect from 16th 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 9th 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 12th 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 6th 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 subsection (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 subsections (2) and (3) of Section 20 of the 1985 Act and held:-