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TMI Blog2024 (8) TMI 1528X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.11.2006 imposing the penalty of stoppage of one increment with cumulative effect, on the ground of delay of 425 days in filing the OA and held penalty imposed on the appellant was justified given the nature of charge. 4. It would be apt and appropriate to narrate the factual background for appreciating the rival contentions raised in these appeals and the parties are referred to hereinafter as per their rank in the High Court. BRIEF BACKGROUND 5. The appellant was appointed to Indian Statistical Services in the year 1982 and after being promoted as Deputy Director (STS) on regular basis in 1987 came to be promoted as Joint Director (JAG) on ad hoc basis in the year 1992 and regularised in 1993. In the light of the Judgment of this Court in Union of India and Others v. Tushar Ranjan Mohanty and Others (1994) 5 SCC 450 the appellant along with others was reverted in the year 1996 to the post of Deputy Director and again was promoted to the post of Joint Director w.e.f. 08.06.2005. 6. Appellant came to be placed under suspension on 13.10.1997 followed by issuance of charge memorandum under Rule 14 of CCS (CCA) Rules, 1965. The only charge against the appellant was that he had d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing a particular punishment in a disciplinary authority. 5. However, the well-known exception to the said rule is that if the punishment awarded is totally disproportionate to the alleged dereliction of duty, in judicial review there can be interference. 6. In the present case, the assertions against the applicant established were that he had not been maintaining his wife and children. After dismissal, he cannot maintain his wife and children. When such is the situation, we have no hesitation in concluding that the punishment awarded is disproportionate to the allegations against the applicant that were established. 7. Accordingly we quash the impugned order and remit the case to the disciplinary authority to pass a fresh order in the light of what has been said above. 8. No opinion is expressed on the other contentions of the applicant for the present. O.A. is disposed of." 9. On matter being sent back to the disciplinary authority, appellant came to be reinstated into service on 09.04.2003 and an order dated 23.04.2004 came to be passed imposing minor penalty of stoppage of one increment of pay for a period of one year, without cumulative effect. Further order came ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and filed another O.A. No. 2066 of 2020 before the Tribunal along with Miscellaneous Application No. 3679 of 2019 for condoning the delay in filing the O.A. as he had been given opportunity to pursue his remedy in accordance with law. The application for condonation of delay came to be rejected by the Tribunal vide order dated: 10.12.2020 by observing thus: "3. The delay involved is more than one year. It is not as if the applicant was not aware of the proceedings. As a matter of fact, the OA is filed against the order of dismissal, passed against him was allowed and relief was granted. It is in compliance with the order by the Tribunal, that the revised order of punishment was passed. The appellate authority rejected the appeal in the year 2016. It is not the case of the applicant that he did not receive the same. Further, the applicant was very much free to pursue the proceedings, ever since he retired. Except stating that his earlier counsel did not take proper steps, the applicant did not substantiate the reasons for delay. 4. We are not convinced with the reasons given in the MA. The same is accordingly dismissed. The OA shall also stand dismissed." 12. Being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant (wife of appellant) had withdrawn her complaint and an affidavit to the said effect had been filed before the Inquiry Officer itself and she had also not deposed before inquiry though cited as a witness on behalf of employer and as such the finding of the enquiry officer holding appellant guilty of alleged misconduct was an erroneous finding and liable to be set aside. Hence, he prays for appeals being allowed. 15. Per contra Shri N. Visakamurthy, learned counsel appearing for the respondents would support the impugned orders and submits that purported representations submitted by the appellant vide letters dated 19.10.2004, 16.03.2016 and 17.03.2016, had been examined by the Ministry and had been rejected vide OM dated 20/22-11-2016 and this was challenged in O.A. No. 3034 of 2018 and same had been withdrawn by the appellant unconditionally and as such no fault can be laid at the doors of the respondents. Hence, he prays for dismissal of the appeals. 16. Having heard the learned advocates appearing for the parties and after bestowing our careful and anxious consideration to the rival contentions raised at the bar, we are of the considered view that the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant is said to have withdrawn the said O.A. On the one hand appellant claims that he had not authorized his counsel to withdraw the O.A. No. 3034 of 2018 and on the other hand, learned counsel appearing for the respondents has submitted that OA had been withdrawn by the appellant through his counsel without prejudice to the right of the appellant to pursue his remedy in accordance with law. This oath against oath cannot be tested in absence of any proof. The fact remains that there was no memo duly signed by the appellant came to be filed for withdrawal of the application before the Tribunal. 20. Be that as it may. On account of liberty having been granted to the appellant to pursue his remedy in accordance with law, yet another O.A. No. 2066 of 2020 along with an application for condonation of delay came to be filed. The delay was not condoned by the Tribunal on the ground that it was filed more than one year after the impugned order came to be passed. No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for delay which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (2) SCC 48 has held: "6. Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case (N.L. Abhyankar v. Union of India [(1995) 1 Mah LJ 503]) observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case [(1995) 1 Mah LJ 503] stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated: "The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay." 23. Applying the aforesaid principles which we are i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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