Constable Prem Kumar vs Union Of India And Others

Vijay Lakshmi, Member (J)

The applicant, by means of this OA, has prayed for the following reliefs:-

A. Issue directions to the Respondents to grant Promotion to the Applicant to the rank of Head Constable on 21 April 1983 followed by Promotion to the rank of Assistant Sub Inspector in 1987, Sub Inspector in the year 1988 and Inspector in 1999 at par with his batch mates till the age of superannuation on 31 May 2006 and revised pension thereon with arrears till date and for life to meet the ends of equity, justice and fair play.

B. Pass such further orders/directions in the form of an adequate compensation for the untold sufferings/misery as may be deemed just and proper by the Hon'ble Central Administrative Tribunal in the attendant genuine circumstances of the case.‖

We have heard Ms. Archana Ramesh, learned counsel for the applicant, Shri Vijay Pandita, learned counsel for the respondents and have carefully gone through the records.

Shorn of unnecessary details, the relevant facts, in brief, are that the applicant got enrolled as Constable (Exe.) in Delhi Police on 1.11.1968. He was promoted as officiating Head Constable (Exe.) on 24.6.1974. During the officiating period, the applicant was found unauthorizedly absent from duty for a period of 16 days i.e. from 15.05.1979 to 30.06.1979. A departmental enquiry was conducted against him in which he was found guilty. As a result, his three years approved service was forfeited permanently entailing reduction in his pay from Rs.290/- to Rs.272/- p.m. for a period of 03 years vide Order dated 21.04.1980. As it was a major punishment during officiating period, the applicant was issued a show cause notice for removal of his name from promotion and for his reversion to his substantive rank of Constable. The applicant submitted the reply to the show cause notice, which was found not satisfactory and the proposed action was confirmed, vide order dated 28.7.1983. The applicant filed a departmental appeal against the order of DCP, which was rejected vide order dated 10.1.1985. The revision petition filed against the appellate order before the Commissioner of Police, was also rejected vide order dated 28.5.1985.

On 1.2.1989, an FIR, under Section 419/420/468/471/34 of IPC, was registered against the applicant at Police Station Gokul Puri, Delhi, by one Shri Mahavir Singh. Due to his involvement and arrest in the aforesaid criminal case, the applicant was placed under suspension vide order dated 9.5.1989. A regular departmental enquiry was also conducted against the applicant for his involvement in the aforesaid criminal case, in which he was found guilty of the charge. Hence, he was removed from service vide order dated 4.10.1993. Against the said order of removal from service, the applicant filed a departmental appeal before the appellate authority, which was rejected vide order dated 6.6.1994. In the criminal case, the applicant was convicted by learned Metropolitan Magistrate, Delhi, vide order dated 5.5.2008. Against the order of conviction, the applicant filed a criminal appeal before the learned Additional Session Judge, Delhi, which was allowed vide judgment and order dated 5.5.2009 and the order of conviction passed by the learned Metropolitan Magistrate was set aside.

In the meantime, the applicant having reached the age of 60 years, retired from Delhi Police on 31.5.2006. However, he was not granted pensionary benefits as the criminal case was still pending against him at that time.

The applicant, being aggrieved by the order of his removal from service, filed OA No.390/2010 which was decided in his favour on 18.3.2011 whereby the order of disciplinary authority awarding punishment of removal from service, was quashed and set aside and the applicant was reinstated in service from the date of removal. His suspension period w.e.f. 1.2.1989 to 3.10.1993 and the entire intervening period from the date of his removal from service till the date of his retirement i.e. 4.10.1993 to 31.5.2006 was also directed to be treated as period 'spent on duty' for all purposes. It was also directed that all pensionary benefits be given to the applicant.

In compliance of the order passed in aforesaid OA, the applicant was given all the benefits as stated above and recorded in the order dated 4.4.2011 passed by this Tribunal in CP No.255/2011 filed in OA 390/2010. However, the applicant, being not satisfied, moved an application for notional promotion to the rank of Head Constable (Exe.), which was examined by the respondents but the promotion was not granted to the applicant and his prayer was rejected, vide impugned order dated 11.7.2011, which was delivered to the applicant vide letter dated 19.7.2011. Being aggrieved, the applicant is before this Tribunal by means of this OA.

Before proceeding further, it is necessary to mention that this OA has been filed along with MA No.1994/2017 seeking condonation of delay. According to the Delay Condonation Application, there is a delay of about 4 years, 8 months and 10 days in filing the instant OA. This Delay Condonation Application is still pending. The ordersheets show that on 2.5.2018, the following order was passed:-

"When this MA seeking condonation of delay is taken up for hearing, both the sides submit that since counter has already been filed in the O.A., the main O.A. and the MA may be disposed of simultaneously.

Accordingly, list the O.A. along with the MA for final hearing on 20.07.2018. In the meanwhile, the applicant may file his rejoinder, if any, failing which his right to file rejoinder shall stand forfeited."

In view of the aforesaid Order, we have to decide first the Delay Condonation Application and thereafter the OA, in case, we condone the delay.

We have considered the rival submissions made by learned counsel for both the parties in respect of delay.

Learned counsel for the respondents has filed short counter reply against the Delay Condonation Application. It has been vehemently argued by the respondents' counsel that this  OA should  be  dismissed on  the  ground  of  delay  only because the delay is not only of 4 years, 8 months and 10 days as stated by the applicant but actually, there is a delay of 34 years in filing the OA as the applicant is claiming the relief of promotion w.e.f. 21.4.1983.

Learned counsel for the respondents has contended that no plausible explanation has been given by the applicant for this inordinate delay of 34 years and even for the delay of 4 years, 8 months and 10 days, admitted by the applicant, there is no proper explanation.

In Support of his contention, reliance has been placed by the respondents on the judgment rendered by Hon'ble Apex Court in the cases of Union of India vs. M.K. Sarkar, reported in (2010) 2 SCC 59 and D.C.S. Negi vs. Union of India and others (SLP Civil No.7956/2011 dated 11.3.2011) in which the Hon'ble Supreme Court has held as under:-

"A plain 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.

A copy of this order be sent to the Registrar of the Principal Bench of the Tribunal, who shall place the same before the Chairman of the Tribunal for appropriate order.""

The contention of the learned counsel for the respondents is that in view of the fact that the applicant has prayed for promotion to the rank of Head Constable w.e.f. 21.4.1983, the cause of action has arisen in the year 1983, whereas the OA has been filed in the year 2017, after a delay of 34 years, without any explanation for such a long delay.

To the contrary, learned counsel for the applicant has submitted that the Order of this Tribunal was passed on 4.4.2011, as the copy of the order dated 4.4.2011 passed in CP No.255/2011 in OA 390/2010 was provided to him on 11.4.2011. Computation of limitation period will start to run from 11.4.2011 and not from 21.4.1983, from which date the applicant has sought the notional promotion to the rank of Head Constable. Thus, according to the applicant, the delay is only of 4 years, 8 months and 10 days, which he has prayed to be condoned.

In the application seeking condonation of delay, the applicant has not stated even a single word to explain any reasons as to why the delay of 4 years, 8 months and 10 days, as admitted by him was caused? The applicant has only cited some judgments of Hon'ble Apex Court in which the Hon'ble Apex Court has directed the Courts to take a lenient view while considering the delay condonation application.

The law of limitation is founded on public policy and the law does not permit a person to sleep over his or her rights unless there exist some cogent reasons for causing delay in asserting one's rights. The Hon'ble Apex Court in a catena of judgments has taken the above view. In Chennai Metropolitan Water Supply and Sewerage Board & Ors.Vs. T.T. Murali Babu, (2014) 4 SCC 108, the Hon'ble Apex Court observed as under:

"Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time‖ and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis".

Thus, we are of the firm view that in view of the provisions of the Administrative Tribunals Act, 1985 and the law laid down by the Hon'ble Apex Court in D.C.S. Negi's and T.T. Murali Babu's cases (supra) and in absence of any plausible explanation of the inordinate delay by the applicant, the instant OA appears to be hopelessly barred by limitation and the MA seeking condonation of delay is found devoid of merit.

In view of the above, MA 1994/2017, being devoid of merit, and OA, being hopelessly barred by limitation, both are dismissed. No order as to costs.