Madan Lal vs Union Of India And Ors

S.N. Terdal, J

We have heard Mr.G.D.Bhandari, counsel for applicant and Mr. Shailendra Tiwary, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"(i) Direct/command the Respondents to consider the applicant's engagement/permanent absorption on a Group 'D' post on the basis of his casual labour service, which is far higher than the casual labour service of the juniors, particularly Shri Sunil Kumar S/o Shri Shiv Kumar and others, whose name have been given in the foregoing paras;

(ii) Order/command the Respondents to deem the applicant in service from the date his juniors were appointed with all consequential benefits of salaries, allowance, arrears with interest, seniority and promotion;

(iii) Any other relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicant alongwith heavy costs against the Respondents, in the interest of justice."

This is a third round of litigation. In the first round of litigation in OA No.1507/1999, the applicant was aggrieved by non-considering him for re-engagement as casual labourer and in not placing his name in the Live Casual Labour Register (LCLR) in accordance with the rules. The said OA was disposed of vide order dated 29.01.2001 holding that as the respondents have not given any such relief to any junior of the applicant, the OA was held premature and disposed of as such. The relevant portion of the order dated 29.01.2001 is extracted below:

"9. In the main OA, the applicant has only prayed for re-engagement and since there is a categorical statement made by respondents that no junior to the applicant has been engaged, I am of the opinion that for the time being, applicant has no cause of action and the OA is premature. However, he will be at liberty to file a fresh OA, if any junior or fresher is appointed by respondents, ignoring his preferential right for re-engagement.

10 OA stands disposed of with the above directions. No costs."

In the second round of litigation, the applicant filed OA No. 1039/2002 praying for the same relief on the alleged basis that some of his juniors have been engaged. The said OA was disposed of on 10.02.2003 observing that the applicant had not produced any document to prove that any of his junior has been given the said relief. The operative portion of the order dated 10.02.2003 is extracted below:

"5. Shri G.D.Bhandari, learned counsel for applicant also appeared while I was dictating the order, I have heard the learned counsel. However, Shri Bhandari was unable to show any document if any junior to the applicant has been engaged. Even in the pleadings, the applicant merely stated that it has been "observed" that juniors to him have been engaged. But there are no basis of his observation, nor there is any evidence for the same. OA has been filed merely to conduct a soring enquiry. Judicial process cannot be listed for this purpose. It is sheer abuse of process of law."

The applicant filed a Writ Petition (Civil) No. 6344/2003 before the Hon'ble High Court of Delhi challenging the said order dated 10.02.2003.

The Hon'ble High Court remanded the matter to the Tribunal vide order dated 23.02.2005 observing that the relevant records should have been produced by the respondents when they filed a reply to his application and further directing the Tribunal to adjudicate on the discrimination aspect on the part of the respondents. The relevant portion of the order is extracted below:-

"...........It was the respondent who ought to have stated on an affidavit whether the averment in the OA was correct or incorrect. As the records and documents are in the possession of the respondent, the casual labourer like the petitioner could not have any material in his possession, therefore, the finding is insupportable in law. The same is set aside, the case is remanded back to the Tribunal to return the finding on the plea of discrimination as observed above."

In compliance with the order of the Hon'ble High Court, this Tribunal after hearing both the parties and after thoroughly examining the fact of the case vide order dated 24.01.2006 dismissed the OA holding that there is no discrimination meted out to the applicant by the respondents. The operative portion of the order dated 24.01.2006 is extracted below:

"9. Coming back to the facts of the present case, it is seen that applicant whose name is shown at page 123 has put in 986 days whereas Tara Chand S/o Shri Harbansh whose name is shown at page 180 has put in 717 days while Shri Munney S/o Bhassoo shown at page 118 has worked for 621 days (624-3=621 days) and both these persons have now been stated not to have been reengaged by the respondents. They have stated that Shri Tansukh Lal S/o Shri Komal Singh had also last worked in the seniority unit of PW1/Najibabad and as per particulars shown at page 180, his total working days are 1473 and he has been reengaged in the seniority unit of PW1, Najibabad, Moradabad Division, Northern Railway. It is thus clear that the person who has been reengaged was not junior to the applicant nor had he worked for 812 days, as alleged by the applicant in his O.A. Apart from this register, which shows the particulars of all the casual labours in seniority unit of PW1, Najibabad respondents have also produced the seniority list maintained by them as per the Live Casual Labour Register under, PW1, Najibabad. As per this seniority list also, applicant's name has been shown at Serial No. 66 with 986 days while Tara Chand S/o Harbansh has been shown at Serial No. 88 and Munney S/o Bhassoo has been shown at Serial No. 98, meaning thereby that both these persons are shown below the applicant in the seniority list as per the Live Casual Labour Register. Therefore, it cannot be said that applicant has been discriminated against. Therefore, no case is made out by the applicant for interference on the basis of facts, as alleged by him.

In view of above discussion, OA is dismissed. No order as to costs."

The applicant has filed this OA in 2014 seeking the same relief on the basis that he has come to know recently that another junior person namely one Shri Sunil Kumar S/o Shri Shiv Kumar who had worked only 442 days as casual labour as against 995 days in case of the applicant and that the said Sunil Kumar has been regularized and further the said Sunil Kumar was promoted to Group 'C' post whereas the applicant has not been regularized in arbitrarily exercise of power. The counsel for the applicant vehemently and strenuously contended based on the law laid down by the Hon'ble Supreme Court in the case of Union of India and Others Vs. Central Administrative Tribunal and Others (2019) 4 SCC 290) that he is entitled to be regularized as his junior Shri Sunil Kumar has been regularized. We have perused the said order and find that the law laid down by the Hon'ble Supreme Court in that case is not applicableto the facts of the present case as in this case irrespective of any junior being appointed the very eligibility of the applicant to be regularized is disputed.

The respondents have filed counter reply. They have raised preliminary objection on the grounds of delay and they have further stated that as it is a stale case and this application is hit by res-judicata as the applicant should have brought the fact of said Sunil Kumar while OA 1039/2002 was considered. The relevant portion of the preliminary objection raised by the respondents regarding delay is extracted below:

"It is further submitted that the Hon'ble Tribunal after hearing the matter on 24.01.2006 dismissed the petition of the applicant.

It is pertinent to mention here that the applicant is raising the issue after a period of nine yeas from the date of dismissal of the above OAs. It is further submitted that the applicant has enclosed casual labour card of one Sh. Sunil Kumar but has not enclosed any evidence in respect of his appointment.

In Sh. Arun Kumar Agarwal Vs Nagreeka Exports Pvt. Ltd & Anr 2002(10) SCC 101

"It has been held by Hon'ble Supreme Court when preliminary objection is taken, it is required to be decided first."

Further the legislature has framed the Administrative Tribunals Ac under Article 323-A of the Constitution of India and as such the original application must have been filed within one year from the date of original cause of action.

It is further submitted that the Administrative Tribunals Act 1985 under Article 323-A of the Constitution of India and Limitation is to be governed strictly by Sec 21 (3) of the Act and not under Sec 5 of the Limitation Act as held in the following case:

In Dhiru Mohan Vs Union of India Full Bench CAT 1989-1991 Vol.II page 448 it has been held that as the Administrative Tribunals Act is special law and provides specific limitation, the Limitation Act cannot be invoked for deciding the question of limitation under this Act.

In the case of D C S Negi Vs. Union of India & Ors (SLP (Civil) No. 7956/2011 decided on 07.03.2011 (OA 1316/2006 Principal Bench, New Delhi) the Hon'ble Apex Court while dismissing the Appeal has observed that the Administrative Tribunal established under the Act is duty bound to first consider whether the application is within limitation and 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). The Hon'ble Apex Court has further observed that "learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of respondents, no such objection was raised but we have not felt impressed. In our view, he Tribunal cannot abdicate its duty to act in accordance within 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."

In this regard Hon'ble Apex Court Constitution Bench in the case of Rattan Chand Samanta Vs. Union of India (1994 SCC (L&S) 182) ruled down the law "Delay deprives the person of remedy available in law. A person, who has lost his remedy by lapse of time, loses his right as well."

Constitution Bench of Hon'ble Supreme Court in the case of S.S.Rathore Vs. Union of India & Others, AIR 1990 SC 10, it has been held that "the repeated representation does not extend the period of representation."

In Karnataka Power Corporation Ltd through its CMD and Another Vs. K.Thangappan and Another 2006 (4) SCC 322 the Hon'ble Supreme Court held that mere making of representations cannot justify delay.

In Jai Dev Gupta Vs. State of Himachal Pradesh and Another 1999(1) ALSLJ SC 110 it has been held by the Hon'ble Supreme Court that continued representations do not keep the limitation alive.

In the another case of Shri Bhoop Singh Vs. Union of India & Others, (1992 (3) SCC 136) (Para 8) decided by Three Judges Bench it has been held "Inordinate & unexplained delay or latches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief."

Other relied upon documents:

(1) Kaushal Kishore Versus Union of India (Central Railway) decided by CAT on 12.12.2006.

(2) Shakuntla Sharma Versus Govt. of NCT/L.G of Delhi decided by CAT on 25.08.2005.

(3) Prem Prasad Srivastava Versus Union of India reported in 1995 (30) ATC 707)

(4) Raghubir Singh Vs. UOI SLJ 2007 (3) CAT 149

(5) Bharat Kumar Saxena Vs. UOI OA No.2622/2011 decided on 01st February 2011

(6) State of Tamil Nadu Vs. Seshachalam 2007 (10) SCC 137 this court, testing the equality clause on the bedrock of delay and latches pertaining to grant of service benefit, has ruled thus:

"...... filing of representations alone would not save the period of limitation. Delay or latches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or latches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not help a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."

(7) C. Jacob Vs. Director of Geology and Mining & Anr. 2008 (10) SCC 115 a two judges Bench was dealing with the concept of representations and directions issued by the Court or Tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the Court expressed thus:

"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations cannot furnish a fresh cause of action or revive a stale or dead claim."

(8) Civil Appeal No.7223-24 of 1993 dt. 20.07.1994 Stale claim cannot be gone into by Courts.

(9) Krishan Kumar Vs. Union of India (Constitutional Bench Judgment)

(10) Ex.Captain Uppal Vs. Union of India & Ors JT 1994 (3) SC 126

(11) Govt. of Andhra Pradesh Vs.M.A. Kareen & Ors 1991 (17) ATC SC 303

(12) Sher Singh Vs. G M & Ors 2008 (2) SLJ 366 DHC

(13) Surya Mani Pushkar Vs. UOI & Ors ( 2013(2) AISLJ CAT (Allahabad) 265

Cases decided by Principal Bench, New Delhi

(13). G.E Veerabhadrappa Vs Union of India OA No. 0463/2009 dt 20.07.09

(14) Ashwani Kumar Vs UOI & Ors OA No. 3664/2009 dt. 31.03.2011 (RA No. 0087/2011 filed by the applicant has also been dismissed on 23.03.2011). The Writ Petition filed by the applicant has also been dismissed by the Hon'ble High Court of Delhi at New Delhi. It is further submitted that case of Improvement Trust Ludhiana Vs. Ujjagar Singh JT 2010 (6) SC has been considered by the co-ordinate bench of this Hon'ble Tribunal in the case of Ashwani Kumar Vs. Union of India OA No. 3664/2009 decided on 31.01.2011 and dismissed the O.A. The Review Application No 0087/2011 filed in this case by the applicant's counsel has also been dismissed by the Hon'ble Tribunal.

(15) Ram Dhari Mural Vs. UOI & Ors OA No. 0940/2010 dt. 23.03.2011

(16) A.I.Ansari Vs. UOI & Ors O.A.No. 1921/10 dt. 22.03.2011

(17) Ishwar Singh Vs UOI & Ors OA No. 2090/2009 dt 20.08.2010 (RA No. 0273/2010 filed by the Applicant has also been dismissed on 26.10.2010). It is further submitted that case of Madras Port Trust Vs. Himanshu International 1979(4) SCC 175 has been considered by the co-ordinate bench of the Hon'ble Tribunal in the case of Ishwar Singh R.A No. 273/2010 in OA No. 2090/2009 has been considered by the Hon'ble Tribunal in para 3 of the Review decided on 26.10.2010 and dismissed the R.A. The OA was has also been dismissed on 20.08.2010.

It is further submitted that the Judgment of Collector Land Acquisition Vs. Katiji 1987 (3) SCR 387 has also been considered by this Hon'ble Tribunal. Here it is pertinent to mention that the applicant counsel was also the same.

(18) Dr. Chander Pal Singh Vs. MCD OA No. 3367/2010 dt. 25.04.11.

(19) Amar Pal Vs. Union of India & Ors.OA No.3083/2010 decided on 12th May 2011.

(20) Rambir Singh Vs. Union of India & Ors O.A No.3200/2010 decided on 07.07.2011.

(21) Pawan Kumar Sharma Vs. Delhi Development Authority OA No.1419/2010 decided on 02.08.2011.

(22) Karnail Singh Vs. Union of India OA No.3283/2010 decided on 29.08.2011.

(23) D.P. Verma Vs.Union of India & Ors in OA No.0183/2010 decided on 09.08.2011.

(24) R.D.Raju Vs. Union of India & Ors in OA No 2753/2010 decided on 15.12.2011.

(25) Mohinder Singh Vs. GNCTD & Ors in OA 1692/2011 decided on 15.12.2011.

(26) Avdesh Kumar Sharma Vs. MD in OA No. 999/2011 decided on 15.12.2011.

(27) Mohinder Singh Vs. UOI OA No.4027/2011 decided on 02.07.2013

In Union of India & Ors Vs. M.K.Sarkar 2010(2 ) SCC 58 (Para 14) after considering the judgment State of Bihar Vs. Kamleshwar Pal Singh;

It has been clarified by the Hon'ble Supreme Court that the limitation has to be counted from the date of original cause of action and stale matters should not be entertained. It was held as follows:

"The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a court/ Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. It it is with reference to a 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect."

In P.K. Ramachandran Vs. State of Kerala & Another JT 1997 (8) SC 189.

It has been held by Hon'ble Supreme Court that

"The law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the Hon'ble High Court was, thus, neither proper nor judicious. The Order condoning the delay, therefore, cannot be sustained."

Similarly in State of Karnataka Vs. S M Kotraya 1996(7) SCALE 179 it was again held by Hon'ble Apex Court that

"It is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation as prescribed under Section 21 of the Administrative Tribunal Act 1985. In view of above, it is the duty of the court to see whether the delay has been properly explained by the person who is approaching the court after inordinate delay. Accordingly filing of an application does not entitle the person to claim condonation of delay."

State of Uttaranchal & Anr. Vs. Sri Shiv Charan Singh Bhandari & Ors 2014(1) AISLJ SC 33 after considering the case laws (Para 14)

Karnataka Power Corpn. Ltd. through its Chairman & Managing Director V K Thangappan and Another 2006(4) SCC 322 the Court took of the factual position and laid down that when nearly for two decades the respondent-workman therein had remained silent mere making of representations could not justify a belated approach.

State of Orissa V Pyarimohan Samantaray 1999 (3) SCC 398 it has been opined that making of repeated representations is not satisfactory explanation of delay. The said principle was reiterated in State of Orissa V Arun Kumar Patnaik 1973 (3) SCC 579

Bharat Sanchar Nigam Ltd Vs Ghanshyam Dass (2) & Ors 2011 (4) SCC 374, a three-Judges Bench of this Court reiterated the principle stated in Jagdish Lal Vs. State of Haryana 1997 (6) SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the Tribunal in 1997, they would not get the benefit of the order dt. 07.07.1992.

New Delhi Municipal Corporation V Pan Singh & Others 2007 (9) SCC 278 the Court has opined

"that though there is no period of limitation provided for filing a writ petition under Article 226 of Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed writ petition after seventeen years and the Court, as stated earlier, took note of delay and latches as relevant factors and set aside the order passed by the High Court which has exercised the discretionary jurisdiction."

P.S. Sadasivasway V State of Tamil Nadu 1975 (1) SCC 152 wherein it has been laid down that

"a person aggrieved by an order of promoting a junior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in matter after a passage of a certain length of time, but it would be sound and wise to exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Courts to put for-ward stale claims and try to unsettle settled matters."

From the perusal of the above facts and in view of the law laid down by various Courts including the Hon'ble Supreme Court referred to in the reply extracted above, it is crystal clear that OA is hit by principles of res-judicata and the claim of the applicant which arose in 1985 cannot be raised in 2014.

Accordingly, the OA is dismissed on grounds of delay as well as on merits. No order as to costs.