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TMI Blog2024 (11) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petitioner and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice. The Central Administrative Tribunal has been given the Constitutional status and in order to carry out the judicial proceeding a statute has been formulated known as the Administrative Tribunal Act, 1985. The Tribunal has been conferred with a power under section 14 of the Administrative Tribunal Act, 1985 - Further, the Tribunal has been conferred with the power to condone the delay as per the provision made under sub-section (3) of Section 21 of the Act, 1985 whereby and whereunder, it has been laid down in view of the principle as contained under Section 5 of the Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom it is evident that the Original Application of the writ petitioner has been rejected on the ground of applicability of principle of delay and laches and limitation. It is evident that while dealing with the issue of limitation, the learned Tribunal has not dealt with that as to from which date either the limitation will count or from which date the principle of delay and laches would be applicable - this Court is of the view that the learned Tribunal has not appreciated the factual aspect before coming to the conclusion about the applicability either of the principle of delay and laches or the principle of limitation. The impugned order dated 24.08.2022 passed in Original Application by the learned Tribunal is hereby set aside - the matter is remitted to the learned Tribunal to pass order afresh after affording opportunity of hearing to the parties concerned in accordance with law - Petition disposed off. - Binod Kumar Jha Versus The Union of India through the Secretary Deptt. of Revenue, Ministry of Finance, North Block, PO+PS+Dist.-New Delhi, The Chief Commissioner CGST and Central Excise, Ranchi , The Joint Commissioner (CCA), CCO, CGST Central Excise, Ranchi , The Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other candidates got promoted on 23.01.2014 and 12.05.2014, since both had joined before the petitioner so he was under the impression that seniority was being calculated on the basis of joining under the Inter- Commissionerate transfer basis. It is further pleaded that the seniority list for Stenographer Grade-I as on 01.01.2019 was forwarded by the Assistant Commissioner (CCO), CGST and Central Excise, Ranchi Zone, Patna vide letter dated 03.06.2019. It is pleaded that the Assistant Commissioner, CCO, CGST and Central Excise, Ranchi Zone, Patna was pleased to inform vide letter no. 10349 dated 20.08.2019 that for the purpose of Inter-Commissionerate transfer, first in first out (FIFO) Criteria is followed for preparing the list of pending applications, based on the date of the receipt of the applications and in cases, where the dates of the receipt are same for multiple applications then, date of filing of such applications to the present zone is to be considered. The petitioner, therefore, rendered a representation dated 23.09.2019 before the Principal Chief Commissioner, CGST and Central Excise, Ranchi Zone, Patna requesting therein to restore his seniority of Stenograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed on 24.08.2022 on the ground that O.A suffers from acquiescence and laches on the part of the petitioner and is barred by limitations. Hence, O.A deserves to be dismissed accordingly. Being aggrieved, the writ petitioner has approached this Court by filing the present writ petition. 3. It is evident from the factual aspect of the writ petition that the petitioner on the basis of Inter-Commissionerate transfer has been posted at Ranchi on the basis of the request and he has been placed in the seniority list down below the transferee. The grievance of the petitioner is that on the basis of the Government Circular the seniority is to be reckoned even on the basis of the request transfer from one Commissionerate to another on the basis of the date of request so made. 4. The petitioner has made a request earlier to the other transferee, but the authority concerned ignoring the date of request so made has placed the writ petitioner below the transferee who have made their request transfer subsequent to the request made by the writ petitioner. The seniority list was prepared on the basis of the Inter-Commissionerate transfer vide Circular, 1986 and a seniority list was prepared on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Tribunal while rejecting the Original Application on the ground of delay and laches as also the limitation, cannot be said to be proper by reckoning the cause of action either from the date of issuance of the provisional gradation list or the rejection of the representation raising objection against the said provisional gradation list from which within a period of one year the learned Tribunal has been approached. 11. Mr. Rahul Kumar, the learned counsel appearing for the petitioner, based upon the aforesaid grounds, has submitted that since the issue has not been adjudicated with respect to the propriety of the rejection of the said order making objection against the provisional seniority list, rather the application has been rejected only on the ground of delay and laches as also on the ground of limitation, hence, the impugned order needs to be interfered with. Argument by the learned counsel for the respondents: 12. On the other hand, Mr. Amit Kumar, the learned Sr. SC appearing for the respondent-CGST while defending the impugned order has submitted that the order impugned cannot be said to suffer from any error as the provisional seniority list is only the reiteration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed together. 20. This Court in order to answer the said issues deem it proper to first refer the motion of delay and laches as also the issue of limitation so far as the Administrative Tribunal Act, 1985 is concerned. The principle of delay and laches is to be applicable in a case where the principle of limitation is made out. The same is strictly applicable in a proceeding under Article 226 of the Constitution of India or any other litigation where the principle of limitation is not applicable. If the principle of limitation is applicable then, the case is to be considered on the basis of applicability of principle of limitation by giving go-bye to the principle of delay and laches. 21. The position of law is very settled that under Article 226 of the Constitution of India the principle of delay and laches is held to be applicable, however, the period of limitation is not applicable, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 wherein at paragraph-2, their Lordship have held as under: 2. The main grievance of the appellant is that the second respondent who was jun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree occasions. A person aggrieved by an order of promoting a junior over his head 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 a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal. 22. In State of M.P. v. Nandlal Jaiswal reported in (1986) 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For ready reference, the provision of Section 21 is being referred as under: 21. Limitation. (1) A Tribunal shall not admit an application, (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in sub-section (1), where (a) the grievance in respect of which an application is made had arisen by reason of any order made at any time 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nasmuch as may be necessary to answer the purpose intended. Therefore, the word sufficient embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive . However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any sufficient cause from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of England, Vol. 28, p. 266: 605. Policy of the Limitation Acts. The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence. An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448] 14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Limitation Act and, as such, there is no reason for the rejection of Original Application on the ground of delay and laches. 33. Herein, the admitted fact as has been admitted by the learned counsel appearing for the respondent-CGST is that the seniority list although was prepared on 31.12.2013 but subsequent to the same a provisional list has also been prepared on 03.06.2019. The same is the provisional list as would be evident from the page no. 38 of the paper book which document is a part of Annexure-4 wherein the content of the said letter is the revised provisional seniority list of Stenographer Grade-I working in the CGST and Central Excise, Ranchi as on 01.01.2019. 34. It is further evident from the covering letter dated 03.06.2019 that the objection has been invited within a period of 15 days of receipt of the letter for rectification, failing which, the impugned revised provisional seniority list will be treated as final from the year 2019, for ready reference, the content of the covering letter is being quoted hereunder: GOVERNMENT OF INDIA OFFICE OF THE CHIEF COMMISSIONER CENTRAL GOODS SERVICES TAX CX. RANCHI ZONE 1ST Floor, Central Revenue Building (Annexe., Bir Cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is, thus, evident that the cause of action has been said to be accrued in favour of the writ petitioner that when the objection so invited on behalf of the respondent vide covering letter dated 03.06.2019. The petitioner has made due objection vide representations dated 23.09.2019, dated 28.10.2019 and dated 03.12.2019, but the same have been rejected vide order dated 13.01.2020. Therefore, the cause of action will be said to be accrued from the day when the decision has been taken by the authority while rejecting the representation dated 23.09.2019, dated 28.10.2019 and dated 03.12.2019 on the objection being sought for as per Annexure-4 dated 3.6.2019. 38. The contention which has been raised on behalf of the learned counsel appearing for the respondents that the cause of action will be said to be accrued in the year 2013 cannot be said to be an acceptable argument in view of the issuance of the communication dated 03.06.2019 appended as Annexure-4 to the instant petition, seeking objection, from one or the other, for the purpose of rectification and the moment is objection has been sought for the purpose of rectification which means that the authority is to take into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Article 323- B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 42. This Court is exercising the power of judicial review as conferred under Article 226 of the Constitution of India in the light of the observation made by the Hon'ble Apex Court in L. Chandra Kumar v. Union of India (supra) at paragraph-99 as quoted and referred above and the power of judicial review is only to be exercised i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, (1955) 1 SCR 1104 : ((S) (1954) 2 SCC 881 : AIR 1955 SC 233); Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168. 44. In Hari Vishnu Kamath v. Ahmad Ishaque, (1954) 2 SCC 881 : AIR 1955 SC 233, the Hon'ble Supreme Court has held in paragraph no. 21 as under: With regard to the character and scope of the writ of certiorari and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. 46. In Heinz India (P) Ltd. v. State of U.P., (2012) 5 SCC 443 their Lordships have been pleased to hold at paragraph nos. 66 and 67 as hereunder: 67. In Dharangadhara Chemical Works Ltd. v. State of Saurashtra this Court held that decision of a tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless it is shown to be totally unsupported by any evidence. To the same effect is the view taken by this Court in Thansingh Nathmal case where this Court held that the High Court does not generally determine questions which require an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. 47. In the case of West Bengal Central School Service Commission v. Abdul Halim, (2019) 18 SCC 39, their Lordships have been pleased to hold at paragraph-30 that the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. 50. This Court in the premise of the power conferred to exercise the power of judicial review is now proceeding to examine the propriety of the impugned order wherefrom it is evident that the Original Application of the writ petitioner has been rejected on the ground of applicability of principle of delay and laches and limitation. 51. It is evident that while dealing with the issue of limitation, the learned Tribunal has not dealt with that as to from which date either the limitation will count or from which date the principle of delay and laches would be applicable. Since we have already discussed hereinabove that the cause of action will be said to be accrued in favour of the writ petitioner the day when the claim of the writ petitioner has been rejected on the basis of the objection so invited by virtue of Annexure-4 which is dated 03.06.2019 and immediately thereafter within a period of one year the Tribunal has been approached. 52. Hence, this Court is of the view that the learned Tribunal has not appreciated the factual aspect before coming to the conclusion about the applicability either of the principle of delay and laches or the principle of limitation. 53. Both the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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