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Kaushal Kishore Shukla V/S State of U.P.

    Service Bench No. 24044 of 2017

    Decided On, 03 November 2017

    At, High Court of Judicature at Allahabad

    By, THE HONORABLE JUSTICE: ANIL KUMAR AND THE HONORABLE JUSTICE: SANJAY HARKAULI

    For Petitioner: Ramesh Chandra Saxena And For Respondents: C.S.C.



Judgment Text


1. Heard Shri R.C. Saxena, learned counsel for the petitioner, Shri Vinay Kumar Singh, learned Standing Counsel and perused the record.

2. By means of the present writ petition, the petitioner has challenged the impugned judgment and order dated 30.08.2017 passed by opposite party No. 5/State Public Services Tribunal, Indira Bhawan, Lucknow in Claim Petition No. 1884 of 2015, dismissing the claim petition on the ground of limitation, order dated 24.02.2000 passed by opposite party No. 4/Senior Superintendent of Police, Kanpur, awarding the punishment for dismissal of services of the petitioner and order dated 27.10.2000 passed by opposite party No. 3/Dy. Inspector General of Police, Kanpur Region, Kanpur, dismissing the appeal filed by the petitioner against the dismissal order dated 24.02.2000.

3. Facts in brief of the present case are that the petitioner while working as Constable in District-Kanpur was absent from duty without sanctioned leave and preliminary enquiry had been conducted against him as per Rule 14(1) of U.P. Police Officers of Subordinate Rank (Discipline & Appeal) Rule 1991 (hereinafter referred to as "Rule") by the Circle Officer, Police Line, Kanpur, who on 24.02.1997 submitted the report of preliminary enquiry.

4. On the basis of the preliminary enquiry report, the petitioner was placed under suspension vide order dated 26.03.1997.

5. On 27.03.1997, charge sheet was issued to the petitioner and on 24.06.1998, disciplinary authority/Senior Superintendent of Police, Kanpur had passed an order for initiation of disciplinary proceedings against the pe

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titioner under the said Rule. The Circle Officer, Anwarganj, Kanpur was appointed as an enquiry officer.

6. After completion of the disciplinary proceedings, on 06.03.1999, a show cause notice was issued to the petitioner requiring him to show cause as to why he should not be dismissed from his service under the said Rule and as to why the leave without pay may not be sanctioned for the entire period of absence from his duties.

7. By order dated 24.02.2000 passed by opposite party No. 4/Senior Superintendent of Police, Kanpur, petitioner was dismissed from his services and his pay and allowances from the date of suspension upto dismissal of his services was forfeited treating the said period as sanctioned leave without pay on the basis of the doctrine of "No Work No Pay".

8. Aggrieved by the order dated 24.02.2000 passed by opposite party No. 4, petitioner filed a statutory appeal before the opposite party No. 3, which was dismissed by order dated 27.10.2000.

9. Thereafter, he filed a claim petition bearing No. 1884 of 2015, challenging his dismissal order dated 24.02.2000 passed by opposite party No. 4 as well as appellate order dated 27.10.2000 passed by opposite party No. 3.

10. By order dated 30.08.2017, State Public Services Tribunal had dismissed the Claim Petition No. 1884 of 2015, which reads as under:-

"Petitioner has challenged order dated 24.02.2000 and 27.10.2000, since petition is barred by limitation in view of Section 5(1)(b) of U.P. Public Services (Tribunal) Act 1976. Learned counsel for the petitioner argued that condonation of delay is possible on the basis of rule laid down in Hon'ble Apex Court judgment December 17, 2014 in Writ Petition (Civil) No. 562/2012, "Assam Sanmilita Mahasangha & Ors. Vs. Union of India & Ors.", and Writ Petition (Civil) No. 876/2014 "All Assam Ahom Association & Ors. Vs. Union of India & Ors.". He further submitted that violation of fundamental rights granted in part III of constitution of India cannot be subjected to statutory limitations.

Learned P.O. objected on the ground of bar created by Section 5(1)(b) of Act and submitted that Tribunal has no power to condone the delay as proceedings are original in nature. He placed before us Allahabad High Court's Judgment given in the case of Karan Kumar Yadav Vs. U.P. State Public Services Tribunal and others : 2008 (2) AWC 1987 (LB).

In view of the above, we dismiss the claim petition on the ground of limitation.

Learned counsel for petitioner is free to approach appropriate court/forum in accordance with law."

11. Learned counsel for the petitioner while challenging the impugned order dated 30.08.2017 passed by the Tribunal submits that the sole case of the petitioner before the Tribunal was that his source of livelihood has been taken away without following the procedure established by law guaranteed under Article 21 of the Constitution, as right to livelihood is also included under right to life in view of various decisions of Honble Supreme Court, as such, his claim petition cannot be dismissed on the ground of delay and laches in view of law laid down by Hon'ble the Apex Court in the case of Assam Sanmilita Mahasangha & Ors. vs. Union of India & Ors. : AIR 2015 SC 783 wherein it has been held as under:-

"Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non-tribal citizens of Assam and given the fact that agitations on this core are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our Constitutional duty to protect the lives of our own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21 and 29.

Tilokchand Motichand is a judgment involving property rights of individuals. Ramchandra Deodhar's case, also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the 'jejune' ground of delay. Since Tilokchand Motichand's case was decided, there have been important strides made in the law. Property Rights have been removed from part III of the Constitution altogether by the Constitution 44th Amendment Act. The same amendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359(1) to give effect to this. In Maneka Gandhi v. Union of India, : (1978) 1 SCC 248 decided nine years after Tilokchand Motichand, Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21 (for an enumeration of these rights, see Kapila Hingorani v. State of Bihar, : (2003) 6 SCC 1 at para 57). Further, in Olga Tellis & Ors. v. Bombay Municipal Corporation, : (1985) 3 SCC 545, it has now been conclusively held that all fundamental rights cannot be waived (at para 29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner."

12. Learned counsel for the petitioner has also placed reliance on the judgment given by Hon'ble the Apex Court in the case of S.S. Rathore vs. State of Madhya Pradesh: (1989) 4 SCC 582 wherein it has been held as under:-

"We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

It is appropriate to notice the provision regarding limitation under s. 21 of the Administrative Tribunals Act. Sub-section (1) has prescribed a period of one year for making of the application and power of condonation of delay of a total period of six months has been vested under sub-section (3). The Civil Court's jurisdiction has been taken away by the Act and, therefore, as far as Government servants are concerned, Article' 58 may not be invocable in view of the special limitation. Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.

It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."

13. Accordingly, Shri R.C. Saxena, learned counsel for the petitioner submits that the impugned order passed by the State Public Services Tribunal thereby dismissing the claim petition on the ground of delay and laches is liable to be set aside keeping in view the law laid down by Hon'ble the Apex Court as stated above as well as Article 21 of the Constitution of India.

14. We have heard learned counsel for the parties and gone through the records.

15. Period of limitation for filing the claim petition is provided under Section 5(1)(b) of the U.P. Public Services (Tribunal) Act, 1976, which reads as under:-

"(1)(b). The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under Section 4 as if a reference were a suit filed in civil court so, however, that--

(i) notwithstanding the period of limitation prescribed in the Schedule to the said. Act, the period of limitation for such reference shall be one year;

(ii) in computing the period of limitation, the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor) in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded.

16. A Division Bench of this Court in the case of Karan Kumar Yadav vs. U.P. State Public Services Tribunal and Ors., : 2008 2 AWC 1987 All while interpreting the Section 5(1)(b) of U.P. Public Services (Tribunal) Act, 1976 held as under:-

"Section 5(1)(b) aforesaid lays down the applicability of Limitation Act and confines it to the reference under Section 4 of the Act, 1976 as if a reference was a suit filed in the civil court. This leaves no doubt that a claim petition is just like a suit filed in the civil court and in the suit the period of limitation cannot be extended by applying the provisions of Section 5 of the Limitation Act. Sub-clause (i) of Section 5 of the Tribunal's Act, specifically provide limitation for filing the claim petition, i.e., one year and in Sub-clause (ii) the manner in which the period of limitation is to be computed has also been provided.

Section 5 of the Limitation Act, reads as under:

Extension of prescribed period in certain case.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient case for not preferring the appeal or making the application within such period.

Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section.

Its applicability is limited only to application/appeals and revision. It hardly requires any argument that Section 5 does not apply to original suit, consequently it would not apply in the claim petition. Had the Legislature intended to provide any extended period of limitation in filing the claim petition, it would not have described the claim petition as a suit, filed in the civil court in Section 5(1)(b) and/or it would have made a provision in the Act giving power to the Tribunal, to condone delay, with respect to the claim petition also.

In view of the aforesaid provision of the Act and the legal provision in respect to the applicability of Section 5 of the Act, it can safely be held that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable. The Tribunal will cease to have any jurisdiction to entertain any claim petition which is barred by limitation which limitation is to be computed in accordance with the provisions of the Tribunal's Act itself and the rules framed thereunder."

17. Thus, as per law laid down by a Division Bench of this Court in the case of Karan Kumar Yadav (Supra), the period of limitation for filing the claim petition before the State Public Services Tribunal is of one year.

18. In the instant matter, petitioner has challenged the impugned order dated 24.02.2000 passed by opposite party No. 4/Senior Superintendent of Police, Kanpur as well as appellate order dated 27.10.2000 passed by opposite party No. 3/Dy. Inspector General of Police, Kanpur Region, Kanpur before the State Public Services Tribunal, Lucknow by filing the claim petition after passing a decade, as such, the same is barred by limitation. Hence, the Tribunal had rightly dismissed the claim petition filed by the claimant after placing the reliance on the judgment given by a Division Bench of this Court in the case of Karan Kumar Yadav (Supra).

19. Hon'ble the Apex Court in the case of Rajasthan Public Service Commission and Anr. vs. Harish Kumar Purohit and Ors. : (2003) 5 SCC 480 held that a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues.

20. Hon'ble the Apex Court in the case of Sant Lal Gupta and Ors. vs. Modern Co-operative Group Housing Society Ltd. and Ors. : (2010) 13 SCC 336 held that a coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law forum the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed. (Vide Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and Ors. : AIR 1968 SC 372).

21. So far as the reliance placed by the petitioner in the case of Assam Sanmilita Mahasangha & Ors. (Supra) as well as S.S. Rathore are concerned, the said case are entirely different from the facts which is involved in the present case. As in the present case Act itself has prescribed for a period of limitation for challenging the order before the State Public Services Tribunal, Lucknow and the said situation does not exist in the said case, so the petitioner cannot derive any benefit from the aforesaid judgment. Moreover, the Tribunal has given a liberty to the petitioner to approach court/forum in accordance with law.

22. For the foregoing reasons, we do not find any illegality or infirmity on the part of the Tribunal thereby dismissing the claim petition filed by the petitioner/claimant as being barred by limitation.

23. In the result, writ petition lacks merit and is dismissed.

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