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TMI Blog2023 (7) TMI 1350X X X X Extracts X X X X X X X X Extracts X X X X ..... mitigate the injustice, if any occurred to the litigants. The law of limitation has got a definite reasoning and logic. Various time limitations prescribed under many statutes are adopting the Doctrine of Reasonableness . The principles of reasonableness would be adopted with reference to the nature of litigations to be instituted. Various time limits are prescribed for civil litigations, appeals and other varieties of litigations, considering various factors and by applying the doctrine of reasonableness. Thus, the law of limitation became substantive and to be followed scrupulously in all circumstances and on exceptional cases, the delay is to be condoned, if the reasons are genuine and acceptable. In absence of the same, the objection raised by the petitioner is well justified and the consequential order passed by the Odisha Administrative Tribunal is illegal, arbitrary, unreasonable and liable to be set aside. The order of punishment was been passed on 07.04.2007 and, as such, there was no valid and justifiable reason to entertain such original application after long lapse of more than eight years. More so, neither the deceased government employee nor the opposite party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Assistant in the office of petitioner no.2-Director of Health Services, was placed under suspension on 19.11.1986 and retired from service on 30.11.1997 while under suspension. A disciplinary proceeding was initiated on 26.08.1989 against him on various grounds including misappropriation of Government cash, forging records and not making over cash entrusted to him etc. in August, 1991. The said proceeding continued without being finalized even after retirement of the deceased Government employee and concluded on 07.04.2007 awarding penalty of recovery of Rs.3,56,185/- from the DCRG, pension and T.I. of the Government employee. Accordingly, certificate case was directed in case further amount remained to be recovered and the period of suspension from 19.11.1986 to 30.11.1997 is to be treated as such. Therefore, the opposite party no.1 approached the tribunal by filing O.A. No. 1605 of 2015 raising objection that the order of penalty has been imposed by the incompetent authority and after retirement of the Government employee. Therefore, the proceeding has to be converted to action under Rule-7 of the OCS (Pension) Rules, 1992, which provides that the Government have reserved to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensionary benefits are continuing cause of action, the objection raised by the authority with regard to the limitation cannot stand on the way of the tribunal to decide the matter. As such, the tribunal is well justified in passing the order impugned by extending the benefit to the opposite party no.1 by quashing the order impugned dated 07.04.2007, as the same was passed by an incompetent authority. More so, the benefit which has been accrued to the husband of the opposite party no.1, should be paid forthwith. It is further contended that though the opposite party no.1 has already received the provisional pension, but final pension has not yet been finalized because of pendency of the writ petition. Thus, it is contended that the benefit, which is admissible to the opposite party no.1, should be paid to her forthwith in compliance of the order passed by the tribunal. 5. This Court heard Mr. A.K. Mishra, learned Additional Government Advocate appearing for the petitioners-State of Odisha and Mr. B. Baivab, learned counsel appearing for opposite party no.1 in hybrid mode and perused the record. Pleadings having been exchanged between the parties, the matter has been disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and (b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub- section (1) or within a period of six months from the said date, whichever period expires later. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 9. In view of the aforementioned provisions, it is made clear that a mandate has been put on the Tribunal by using the word shall not to admit an application in a case where a final order such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or not there is sufficient ground for proceeding, held that the word shall is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, on looking at the intention of the Legislature, the Court found that the provision is aimed at preventing innocent persons from being harassed by unscrupulous persons making false complaints, and therefore the inquiry or investigation contemplated by the provision before issuing summons was held to be mandatory. 10. Taking into consideration the aforementioned analogy, applying the provisions under Section 21(1) and considering the legislative intent attached to the provisions, it is made clear that using the word shall the legislature have put a mandate, i.e., mandatory condition on the Tribunal to entertain the Original Application in connection with the grievance of the applicant within one year from the date on which such final order has been made. On perusal of the provisions contained under Section 21(1) and (2), it is crystal clear that in a case where an appeal or representation such as is mentioned in Clause (b) of Subsection (2) of Section 20 has been made and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Kerala, (2009) 4 SCC 94, the apex Court held that while interpreting a non statute clause the court is required to find out the extent to which the Legislature intended to give it an overriding effect. In P. Virudhachalam v. Management of Lotus Mills, AIR 1998 SC 554: (1998) 1 SCC 650, the apex Court held that the expression notwithstanding anything in any other law occurring in a section of an Act cannot be construed to take away the effect of any provision of the Act in which that section appears. Therefore, the effect of provisions contained under Sub-sections (1) and (2) of Section 21 with regard to condonation of delay is dependent upon the satisfaction of the Tribunal if the application shows the sufficient cause. 11. The pari materia provisions for condonation of delay are derived from Section 5 of the Limitation Act. Therefore, the word sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice when no negligence nor inaction, nor want of bona fide, is imputable to the appellant. The term sufficient cause under Section 5 of the Limitation Act apparently covers not only those ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xperience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-nongrata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. 13. The apex Court in Maniben Devraj Shah v. Muinicipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, held in paragraphs 24 and 25 to the following effect:- 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted approach rather than the technical detection of sufficient cause for explaining every day s delay. However, it is equally well settled that the courts albeit liberally considered the prayer for condonation of delay but in some cases the court may refuse to condone the delay inasmuch as the Government is not accepted to keep watch whether the contesting respondent further put the matter in motion. The delay in official business requires its pedantic approach from public justice perspective. In a recent decision in Union of India v. Nripen Sarma, AIR 2011 SC 1237, the matter came up against the order passed by the High Court condoning the delay in filing the appeal by the appellant Union of India. The High Court refused to condone the delay on the ground that the appellant Union of India took their own sweet time to reach the conclusion whether the judgment should be appealed or not. The High Court also expressed its anguish and distress with the way the State conducts the cases regularly in filing the appeal after the same became operational and barred by limitation. 15. In Office of the Chief Post Master General Ors. v Living Media India Ltd. Anr. : 2012 AIR SCW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nr.) (ii) Order dated 22nd January 2021 in SLP No. 11989 of 2020 (The Commissioner of Public Instruction Ors. v. Shamshuddin) (iii) Order dated 22nd January 2021 in SLP No. 25743 of 2020 (State of Uttar Pradesh Ors v. Sabha Narain Ors.) (iv) Order dated 4th February 2021 in SLP No. 19846 of 2020 (Union of India v. Central Tibetan Schools Admin Ors) (v) Order dated 11th January 2021 in SLP No. 22605 of 2020 (The State of Odisha Ors v. Sunanda Mahakuda) From the above it would be evident that by order dated 11.01.2021 passed in SLP No.22605 of 2020 (State of Orissa v. Sunanda Mahakuda) filed by the State of Odisha, the apex Court dismissed the SLP imposing cost of Rs.25,000/- for filing a belated SLP without offering any credible explanation. 18. The declaration in Paragraph-5 of the Original Application, as mentioned above, clearly spelt out that the application is within the period of limitation, as prescribed under Section 21 of the Administrative Tribunals Act, 1985, which is not true, rather it is a false declaration. 19. This Court would wish to take note that litigations/appeals are expected to be filed within the period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the consequential order passed by the Odisha Administrative Tribunal is illegal, arbitrary, unreasonable and liable to be set aside. 21. The present petitioners raised specific objection, as pleaded in paragraph-15 of the writ petition, to the following effect:- 15. That, It is submitted that the Order impugned before the learned Tribunal was passed vide Order No.12463, dtd. 07.04.2007 and same was communicated to the husband of the Opp. Party No.1 Applicant vide memo No.12464, dtd. 07.04.2007 by the Applicant in the Original Application. The husband of the Applicant expired on 11.02.2011 but the preferred not to challenge the Order dtd. 07.04.2007 either by filling Appeal or by filing Original Application till the month of February, 2011. In the instant case, the impugned Order was passed on 07.04.2007 where as O.A. no. 1605/2015 was filed only on 22.06.2015. The limitation provided under Section -21(1) (a) of the Administrative Tribunal Act, 1985 is one year from the date of the final order. Hence, in view of the limitation provided in Section 21(1) (a) of the Act, 1985, the learned Tribunal ought to have dismissed the O.A. No. 1605/2015 at the threshold being barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eye of law. But, without adhering to the question of limitation, the tribunal has visited beyond its jurisdiction to decide the question by entertaining the original application on the ground of applicability of Rule-7 of OCS (P) Rules, 1962. As such, if the order of punishment has been passed and communicated to the deceased employee, that itself is sufficient and more so the order of punishment so imposed has not been challenged before any forum. If the original application itself is barred by limitation and this question was raised before the tribunal, it is incumbent upon the tribunal to pass order on the question of limitation instead of passing the order on merits. 23. In the above view of the matter, the order dated 27.10.2016 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A. No. 1605 of 2015 cannot be sustained in the eye of law and the same is liable to be quashed and is hereby quashed. Since the deceased government employee died long since and an outstanding dues of Rs.3,56,185/- has been determined against him, retaining such amount, any other pensionary benefits as due and admissible to the Government employee, shall be paid to oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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