Ishwar Chand Tawani vs Union of India and Others

Honourable Mr. Justice K.S. Jhaveri

The petitioner by way of filing the present petition has prayed for the following reliefs:

(A) That the Hon''ble High Court to issue the writ of certiorari or any other writ, order or direction and quash and set aside the Annexure A & C.

(B) Lordship be direct to the respondent to issue the deemed date promotion in TES Group B and all consequential benefits thereon.

(C ) Lordships be pleased to quash and set aside the impugned reply dated 30-12-2000 of respondent.

(D) Lordships be pleased to allow the O.A. No. 554/2003.

(E) Lordships be pleased to direct the respondent to release the part of the due payment of EB arrears along with due benefits of leave period considered in class - I services with interest of 18% from the date of eligibility to actual date of release the due part payment.

(F) For such other relief that may be deemed fit and proper.

(G) Cost of suit may be awarded.

The appellant had retired as D.E. Telephone from Surat. He filed OA 554/03 with the prayer that order dated 30.12.2000 of the respondents may be quashed and they should be directed to release the due part payment of EB arrears along with other benefits of leave period considering him to be in Class - I service with interest at the rate of 18% and should further be directed to grant other benefits.

2.1 When the OA was taken up for hearing on several occasions, learned advocate for the petitioner had sought time on one or the other pretext and therefore finally the Bench dismissed the OA. Thereafter the petitioner engaged another advocate who filed OA 236/08. This OA was also withdrawn by the petitioner. Thereafter MA for restoration and MA for condoning the delay in filing the restoration application was also preferred. Both the applications were proceeded and heard on merits even though none appeared for the petitioners in the MA for restoration as well as delay condonation. Finally the Tribunal rejected the MA for condonation of delay and accordingly the MA for restoration was also dismissed. Being aggrieved by the said order, the present petition is preferred before this Court.

Ms. S.S. Chaturvedi, learned advocate appearing for the petitioner submitted that the Tribunal erred to come to the conclusion that the restoration is patently time-barred and is liable to be dismissed for default. She submitted that in fact the petitioner had taken liberty while withdrawing OA No. 236/08 to move appropriate MA along with delay condonation application for revival of OA which was dismissed for non-prosecution. Ms. Chaturvedi further submitted that the matter is required to be heard on merits and the orders passed by the Tribunal are required to be quashed and set aside.

Having heard learned advocates for both the sides and having perused the papers on record, it is evident that sufficient time was granted to the petitioner by the Tribunal to present his case. The Tribunal vide order dated 05.05.2004 while dismissing the OA No. 554/03 for non prosecution had observed as under:

As the OA filed by the applicant referred to interim order of Rajasthan High Court the decision in TA/196/86 and OA/706/93, the applicant was asked to produce a copy of these judgments before notice could be issued in the instant OA. Time has been given from 23-12-03 for producing these documents. The applicant has also been requested for selecting one of the reliefs on account of multiplicity of reliefs.

In our order dated 22-3-2004 we have indicated that even if Mr. Trivedi is not present on the next date, the OA shall be disposed of. On the next date i.e. 6-4-04 also by way of negligence, we had given one opportunity for producing these documents. These documents are not produced even today.

The O.A. is accordingly dismissed for non-prosecution. No costs."

Even though sufficient time was granted to the petitioner, no documents were produced on record as is evident from the order above. The petitioner thereafter filed MA for restoration and delay condonation. The MA for restoration was also time barred. The petitioner seems to be quite negligent as is clear from the course of events. The delay of around four years was not plausibly explained by the petitioner. The petitioner was also negligent in filing his own affidavit in the delay condonation application. The Tribunal in paras 20 & 21 has clearly observed as under:

It is to be pointed out that in support of the application for condonation of delay, the applicant has not even filed his own affidavit. The reply filed on behalf of the respondents is detailed one and the denial of the contents in the MA is very specific and categoric. In fact, the averments made in the reply deserve to be accepted.

In view of the above, we are of the considered opinion that the applicant has miserably failed in explaining a long delay of 4 years in filing the restoration application for setting aside and recalling the order of the Bench dated 5.5.2004. The explanation of the applicant can neither be healed to be a reasonable one nor a sufficient explanation and the same can not be accepted as convincing or plausible explanation. Consequently, the delay can not be condoned on the fact and in the circumstances of this matter.

We are in complete agreement with reasonings adopted by the Tribunal. The delay of four years without any supporting documents cannot be condoned. The Tribunal is justified in rejecting the delay condonation as well as the restoration application. The petition is devoid of any merits and is accordingly dismissed. Notice is discharged. No costs.