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PAATI RAM AND OTHERS versus CENTRAL ADMINISTRATIVE TRIBUNAL AND OTHERS

High Court of Judicature at Allahabad

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Paati Ram And Others v. Central Administrative Tribunal And Others - WRIT - A No. 17541 of 2003 [2003] RD-AH 117 (24 April 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 38

CIVIL MISC. WRIT PETITION NO. 17541 Of 2003

Pati Ram & ors. -----           Petitioners

Versus

Central Administrative Tribunal,

Allahabad Bench, Allahabad & ors. -----        Respondents    

    --------------

Hon'ble Dr.B.S.Chauhan,J.

Hon'ble Ghanshyam Dass, J.

This writ petition has been filed for setting aside the impugned judgment and order of the Central Administrative Tribunal, Allahabad dated 17.3.2003, by which the learned Tribunal has rejected the application of the petitioners being barred by the principle enshrined under Order 23, Rule 1 of the Code of Civil Procedure (hereinafter called the CPC) and being barred by limitation.

Facts and circumstances giving rise to this case are that petitioners had filed an application before the Tribunal challenging the order dated 1st July/August, 1997, by which their re-engagement as substitute ''Safaiwala' was found wrong as they were ineligible they stood discharged from service. Petitioners filed application before the Tribunal on 10.3.2003 after expiry of 4-5 years. No application for condonation of delay had been filed. Petitioners tried to explain the delay by submitting that they had filed Writ Petition Nos. 582329 of 2001 which had been disposed of by the Hon'ble Apex Court vide order dated 24.1.2003 allowing the petitioners to withdraw the said cases, to approach the Tribunal.

The learned Tribunal has rejected the case on two grounds that earlier application filed by the petitioners had been withdrawn without seeking liberty to file afresh. Therefore, the subsequent application was barred by the principles enshrined in Order 23, Rule 1 CPC.

In Sarguja Transport Service Vs. S.T.A.T., Gwalior & ors, AIR 1987 SC 88 and Ashok Kumar Vs. Delhi Development Authority, 1994 (6) SCC 97, the Apex Court has held that filing the successive petition before a Court amounts to sheer abuse of process of the Court and is against the public policy. In Khacher Singh Vs. State of U.P. & ors, AIR 1995 All. 338, the Division Bench of this Court after placing reliance on its earlier judgments in L.S. Tripathi Vs. Banaras Hindu University, 1993 (1) UPLBEC 448; and Saheb Lal Vs. Assistant Registrar, B.H.U., 1995 (1) UPLBEC 37, held that successive writ petition was not maintainable.

Similarly, in Avinash Nagra Vs. Navodaya Vidhyalaya Samiti & ors., (1997) 2 SCC 534, the Hon'ble Supreme Court has taken the same view and held that the second writ petition was not maintainable as the principle of constructive res judicata would apply. Therein also, the writ petition filed in the first instance was withdrawn with permission of the Court without liberty to file the second writ petition.

Undoubtedly, the application has been filed after inordinate delay of more than 4 years and it is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. (Vide Aflatoon  & ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077; State of Mysore Vs. V.K. Kangan & ors., AIR 1975 SC 2190;  Pt.  Girdharan Prasad Missir Vs.  State of Bihar & ors.,  (1980)  2 SCC 83;  H.D.  Vora  Vs. State of  Maharashtra,  AIR 1984 SC  866;   Bhoop Singh Vs.   Union ofIndia, AIR 1992 SC 1414;  The Ramjas Foundation  & ors.  Vs.  Union of India  & ors., AIR  1993 SC 852;  Ram Chand Vs.  Union  of India, (1994) 1 SCC 44;  State of Maharashtra Vs. Digambar,   AIR   1995    SC   1991;    Municipal Corporation  of  Greater Bombay  Vs.   Industrial Development  Investment  Co.  (P) Ltd.   &  ors., (1996) 11 SCC 501;  Padma Vs.  Dy.  Secy.  to the Govt.  of   Tamil  Nadu,  (1997)   2   SCC   627; Hindustan  Petroleum Corp.  Ltd.  Vs.  Dolly Das, (1999) 4  SCC 450;  Life Insurance Corporation of India Vs.   Jyotish Chandra Biswas, (2000) 6  SCC 562;  L.  Muthu Kumar & Anr.  Vs.  State of Tamil Nadu & ors.,   (2000)  7   SCC  618;    Municipal Council,  Ahmednagar & Anr.  Vs.  Shah Hyder Beig & ors., AIR 2000 SC 671;  and Inder Jit Gupta Vs. Union of India & ors., (2001) 6 SCC 637.

Similarly, in State of U.P. Vs. Raj  Bahadur Singh  &  Anr., (1998) 8  SCC 685; the Hon'ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."    

In S.K. Mastanee Bee Vs. General Manager, South Central Railways & ors., (2003) 1 SCC 184, the Hon'ble Supreme Court held that entitlement of a particular right guaranteed under Article 21 of the Constitution, coupled with the helplessness condition of a party may be a ground  to entertain a petition even at a belated stage. But that was a case where third party's interest had not crystalised.                                  

In Northern Indian Glass Industries Vs. Jaswant Singh & ors.,  (2003)  1  SCC  335,  the Hon'ble Apex Court held that the High Court can not ignore the delay and laches in approaching the writ court and there   must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.

The Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & ors., AIR 1987 SC 1353, observed  that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be  preferred for the reason  that  other side cannot  claim  to have vested  right in injustice being done because of non-deliberate delay.

The law of limitation is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation).   Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

Time-barred cases should not be entertained by Courts as the rights which  have accrued to others  by reason of delay in approaching  the  Court, cannot be allowed to  be disturbed unless there is a reasonable explanation  for the delay. The vested rights of the parties should not be disrupted at the instance of a person who is a guilty of culpable negligence. (Vide  R.S.  Deodhar Vs. State of Maharashtra, AIR 1974 SC 259; and K.R. Mudgal Vs.  R.P.   Singh, AIR 1986 SC 2086).  The  Privy Council in   General  Fire   and  Life  Assurance Corporation  Ltd. Vs. Janmahomed Abdul  Rahim, AIR 1941  PC  6, relied upon the writings of  Mr. Mitra in  Tagore Law Lectures 1932 wherein it has been said   that "a law of limitation and prescription  may  appear to operate harshly  and unjustly  in  a particular case, but if  the  law provides  for a limitation, it is to be  enforced even at the  risk  of  hardship to  a  particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law."

In N. Balakrishnan Vs. M. Krishnamurthy,  (1998) 7 SCC 133, the Apex Court explained the scope of limitation and condonation of delay, observing as under:-                                                                

"The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for   approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy for the redress of the legal injury   so suffered. The law of limitation is thus founded on public policy."  

We find no force in the submissions made on behalf of the petitioners that as the Hon'ble Supreme Court has allowed them to withdraw their writ petition with a liberty to file before the Tribunal, there was no occasion for the learned Tribunal to go into the issue of delay and laches and reject the application on this ground for the reason that it is settled legal proposition that the Court has no competence to issue a direction contrary to law. (vide Union of India & Anr. v. Kirloskar Pneumatic Co. Ltd. (1996) 4 SCC 453; State of U.P. & ors. v. Harish Chandra &  ors., (1996) 9 SCC  309; and Vice Chancellor, University of Allahabad & ors.,  v. Dr.  Anand  Prakash Mishra & ors., (1997) 10  SCC 264).

In State of Punjab & ors. v. Renuka  Singla &  ors. (1994) 1 SCC 175, dealing with a similar situation, the Hon'ble Apex Court observed as under:-

"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."    

Similarly, in Karnataka State Road Transport Corporation v.  Ashrafulla Khan & ors., JT 2002 (2)  SC  113, the Hon'ble Apex Court  has held as under:-

"The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injected by law."

So far as the direction of the Hon'ble Supreme Court is concerned, this scope has been explained by the Hon'ble Apex Court in Danda Rajeshwari Vs. Bodavula Hanumayamma & ors., (1996) 6 SCC 199, wherein the Apex Court has held that where the remedy is a statutory one and limitation is one of the conditions to entertain the petition, a party instead of approaching the Statutory Authority/Court/Tribunal approaches the High Court directly, even at a belated stage, the High Court exercising its power under Article 226 of the Constitution declined to interfere in the disputes since alternative remedy for adjudication thereof was provided in the statutory rules itself, in such a case as the High Court has a jurisdiction to entertain the petition but because of self restraint it did not exercise the power and directed the parties to avail the alternative remedy in such a case, the Court can issue the direction to the statutory authority to decide the case ignoring the issue of limitation. Therefore, if a party wants to avail the benefit of approaching the superior Court, wherein, that Court refuses to exercise its power and ask the party to approach the statutory authority or in alternative, held its obligation on the part and the purpose of such a party who seeks the direction from the superior Court that the alternative forum shall not go into the issue of limitation. However, in absence thereof it is not open to the alternative forum to entertain the petition ignoring the law of limitation. At the most, in such a case party can claim the benefit of Section 14 of the Limitation Act as explained by the Hon'ble Supreme Court in P. Sarathy Vs. State Bank of India, AIR 2000 SC 2023.

If such a issue is not considered and the alternative forum entertains the petition merely because the superior Court has directed the party to avail the remedy before an alternative forum, the law of limitation would be rendered nugatory.

It is settled proposition of law that what cannot be done "per directum is not permissible to be done per obliquum", meaning thereby, whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud."

In Jagir Singh Vs. Ranbir Singh, AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by "shift or contrivance." While deciding the said case, the Hon'ble Supreme Court placed reliance on the judgment in Fox Vs. Bishop of Chester, (1824) 2 B 7 C 635, wherein it has been observed as under:-

"To carry out effectually the object of a statute, it must be considered as to defeat all attempts to do, or avoid doing in an indirect or circuitous manner that which it has prohibited or enjoined."

Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court in M.C.Mehta Vs. Kamal Nath & ors., AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of Article 142 of the Constitution, which empowers the Court to pass any order in a case in order to do "complete justice."

If the instant case is examined in the light of aforesaid settled legal proposition and we read the order passed by the Hon'ble Supreme Court it is evident that the Apex Court has not issued any direction to the learned Tribunal to consider the case on merit without entering into the issue of limitation. The language of the said order suggests to the contrary, as it reads as under:-

"Liberty is granted to the petitioner to withdraw the petitions and approach the Tribunal for redressal of his grievance in accordance with law. The writ petitions are accordingly dismissed as withdrawn."

The order suggests that the Hon'ble Apex Court has issued direction to decide the case in accordance with law which includes the consideration of the issue of limitation. Petitioners did not file any application for condonation of delay nor furnish any application for inordinate delay. They approached the Hon'ble Supreme Court also after four years of passing the impugned order. Thus, it is not a case where petitioner could claim that they were entitled for getting the benefit of Section 14 of the Limitation Act. Thus, no fault can be found in the order passed by the learned Tribunal and the case does not present special features warranting any interference whatsoever.

Petition is devoid of any merit and is accordingly dismissed.

24.4.2003

AKSI


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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