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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 ..... ant, yet the Inquiry Officer proceeded with the inquiry and submitted the report, holding appellant guilty of the charge of deserting his wife and children and exonerating him of charge of residing with another lady.
If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay.
Conclusion - i) The delay in filing application was sufficiently explained, and the failure to condone it was an error. ii) The penalty imposed on the appellant was unjustified due to the lack of evidence and the withdrawal of the complaint.
Matter remanded back to the Tribunal or High Court or to the disciplinary authority for reconsideration of the matter - appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... randum of charge and during the pendency of the inquiry, the wife of the appellant filed an affidavit withdrawing her complaint on the ground that there had been some misunderstanding. Despite the said affidavit the enquiry officer proceeded with the inquiry and submitted enquiry report on 16.12.1998 holding appellant guilty of charge of deserting his family and further held that the charge of appellant living with another woman was not proved. This report resulted in order of dismissal of appellant from service imposed by the disciplinary authority by order dated 17.04.2000 and review petition filed against the same also ended in its dismissal. 8. Being aggrieved by the aforesaid order of dismissal from service, appellant preferred an O.A. No. 116 of 2002 before the Tribunal which came to be allowed by Order dated 15.11.2002 and the order of dismissal came to be quashed with the following observations and remitted the case to the disciplinary authority:- "2. In the enquiry that ensured, it was found that the assertions that applicant was living with another woman are not established but the other facts referred to above have been so established. Keeping in view the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant urging grant of promotion on par with his juniors who had already been promoted and prayed for grant of financial benefits in that regard by complete exoneration of charge levelled. In the meanwhile, appellant attained the age of superannuation and retired from service with effect from 31.10.2016. 10. O.A. No. 1579 of 2017 came to be filed by the appellant seeking direction to the respondent authorities to consider his representation and same came to be disposed of by the Tribunal vide Order dated 08.05.2017 directing the respondents to dispose of the representation dated 27.07.2015 within a period of 90 days. This resulted in same being disposed of and intimation/communication was forwarded to the appellant on 09.11.2017 informing the appellant thereunder that representation dated 27.07.2015 has been considered & rejected. Appellant was also intimated that his representations had already been disposed of and same had been intimated vide communication dated 20/22-11-2016 itself and also forwarded copy thereof to the appellant along with communication dated 09.11.2017. The communication dated 09.11.2017 came to be challenged by the appellant in O.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the appellant that High Court on the one hand having opined not to entertain the writ petition on the ground of alleged unexplained delay, yet proceeded to deal with the matter on merits of the case, that too without affording an opportunity to the appellant and as such the appeal deserves to be allowed by setting aside the impugned order. He would further elaborate his submissions by contending that Tribunal had committed an error in not condoning the delay of 425 days in filing O.A. No. 2066 of 2020 and the delay was due to the mistake of the counsel, who without the knowledge and consent of the appellant had withdrawn the earlier O.A. No. 3034 of 2018 and also without prejudice to the right of the appellant to pursue his remedy in accordance with law and it is on account of lack of knowledge of the appellant's application having been withdrawn and on acquiring knowledge about such unilateral withdrawal appellant had taken immediate steps to prosecute his legitimate claim before the Tribunal by filing O.A. No. 2066 of 2020 afresh along with an miscellaneous application No. 3679 of 2019 for condonation of delay and as such Tribunal ought to have condoned the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. When the Inquiry Officer commenced the inquiry, she filed an affidavit stating thereunder that she had filed the complaint under mistaken notion and she withdrew the complaint. In fact, in the articles of charge issued to the appellant she was cited as a witness by the respective authority and neither she appeared before the Inquiry Officer nor she had deposed in the inquiry proceedings. Though, she had already filed an affidavit withdrawing her complaint against the appellant, yet the Inquiry Officer proceeded with the inquiry and submitted the report as already noticed herein above, holding appellant guilty of the charge of deserting his wife and children and exonerating him of charge of residing with another lady. This resulted in order of dismissal being passed against the appellant and same was challenged before the Tribunal in O.A. No. 116 of 2002 by the appellant which came to be allowed and matter was remitted to the disciplinary authority to pass fresh order, which resulted in reinstatement of appellant into service and imposing of minor penalty namely, stoppage of one increment of pay for a period of one year without cumulative effect. 18. On account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being aggrieved by the dismissal of the O.A. No. 2066 of 2020 on the ground of delay had approached the Delhi High Court challenging the same. The High Court on the ground of penalty imposed being a minor penalty, refused to entertain the writ petition or in other words confirmed the order impugned before the Tribunal on merits. This Court in Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Another reported in 2009 (3) SCC 525 has taken a view that while deciding an application for condonation of delay the High Court ought not to have gone into the merits of the case. It has been further held:- "5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 does not reflect that such withdrawal was based on any memo duly signed by the appellant. Further, The High Court has proceeded to confirm the order of the Tribunal on the footing that penalty imposed on appellant is only a minor penalty namely withholding of one increment without cumulative effect, by completely ignoring the fact that in the earlier round of litigation it had been clearly held that punishment of dismissal imposed on the appellant was totally disproportionate to the alleged act. 24. In the normal circumstances we would have remitted the matter back to the Tribunal or High Court or to the disciplinary authority for reconsideration of the matter but we desist from doing so for reasons more than one firstly, the age of the appellant is 68 years (as on date); and, secondly, there being no evidence whatsoever available on record to arrive at a conclusion that appellant is guilty of the charge; Thirdly, the complainant herself had withdrawn the complaint made and she was not even examined on behalf of the employer to prove the charge. Thus, the findings of the enquiry officer cannot be sustained by any stretch of imagination as it is contrary to the facts and records ..... X X X X Extracts X X X X X X X X Extracts X X X X
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