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TMI Blog2023 (8) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... merits." B. FACTUAL MATRIX (2) In the year 2001, the petitioner was engaged as daily wage casual labour under the Joint Commissioner, Income Tax, Faizabad and continued to work as such till his services was terminated orally w.e.f. 02.09.2005. (3) The aforesaid oral order of termination w.e.f. 02.09.2005 was challenged by the petitioner by preferring Original Application No. 561 of 2005 before the Central Administrative Tribunal, Lucknow (hereinafter referred to as 'the Tribunal"). The Tribunal, vide judgment and order dated 30.09.2011, dismissed the aforesaid original application. (4) Feeling aggrieved by the judgment and order of the Tribunal dated 30.09.2011, the petitioner preferred writ petition No. 1551 (S/B) of 2013 before this Court. A Co-ordinate Bench of this Court, while recording the submission of the petitioner that in an identical matter, a review application was filed before the Tribunal and the Tribunal has proceeded to allow the review application, disposed of the writ petition with liberty to the petitioner to file review application before the Tribunal, vide judgment and order dated 21.01.2016. (5) Apparently, pursuant to the aforesaid judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he leading being Review Application No. 332/00028/2014 and vide common judgment and order dated 24.12.2014, the learned Tribunal was pleased to allow the bunch of review applications by reviewing/modifying the order sought to be reviewed in the said bunch of review application and resultantly, the learned Tribunal directed the respondents to consider the case of the applicants for regularization in accordance with law within six months. According to him, on coming to know the aforesaid order dated 24.12.2014 (supra), the petitioner has drawn the attention of the same to a Co-ordinate Bench of this Court in Writ Petition No. 1551 (S/B) of 2013, which had ceased of the said matter. (9) Apparently, the said Co-ordinate Bench of this Court, appreciating the submission of the petitioner in this regard, disposed of the said writ petition by granting liberty to the petitioner to file a review application before the Tribunal by means of an order dated 21.01.2016. Thereafter, the petitioner has sought legal opinion and prepared review application No. 20 of 2016 and filed the same before the learned Tribunal. The petitioner claimed that the delay in filing the review applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay, is liable to be set-aside and the matter be remitted to the learned Tribunal for its adjudication on merits. (12) Per contra, learned Counsel representing the Union of India has opposed the aforesaid submissions of the learned counsel for the petitioner and has argued that Rule 17 (1) of the Rules, 1987 indicated of the intent to make it mandatory that no application for review can be entertained unless it is filed within thirty days from the date of receipt of a copy of the order sought to be reviewed. (13) According to the learned Counsel for the respondents, no other explanation or advantages can be made to the aforesaid Rules, 1987 as Rule 17 (1) of Rules, 1987 prohibited entertainment of any application for review beyond thirty days. He submits that admittedly, the petitioner has filed the Review Application No. 20 of 2016 after thirty days as provided under Rule 17 (1) of the Rules, 1987, hence the learned Tribunal has rightly dismissed the review application as not maintainable by means of the impugned order. Thus, the instant writ petition is liable to be dismissed. D. ANALYSIS (14) Having regard to the submissions advanced by the learned Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Tribunal may make an application to the Tribunal for the redressal of his grievance. Section 21 of the Act, 1985 deals with limitation in filing the original application. It would be profitable to extract section 21 of the Act, which interalia states 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 subsection (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 beco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power of review vested with an Administrative Tribunal is equated to a Civil Court and, thus, while considering and disposing of any review application, the Administrative Tribunal is to follow the Code of Civil Procedure. Thus, by necessary implications the provisions of review as found under the Civil procedure Code i.e Section 114 and Order XLVII Rule 1 of the Civil Procedure Code came to be incorporated along with the power of review of an Administrative Tribunal. Moreover, the power of the Tribunal to review its judgment has been well explained by the Hon'ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa : (1999) 9 SCC 596 and Gopalbandhu Biswal Vs Krishna Chandra Mohanty : (1998) 4 SCC 447, wherein the Hon'ble Supreme Court had held review power of a Tribunal to be similar as has been granted to a Civil Court under Section 114 or under Order XLVII Rule 1 of the Civil Procedure Code. In any case, the power of review is not absolute and is hedged in by the restrictions indicated in Order XLVII Rule 1 of the Civil Procedure Code and the same can be exercised on the application of a person on restricted grounds of discovery of new and important matter; or evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (24) However, the procedure for filing and consideration of an application for condonation of delay of review application is conspicuously absent from the provisions of the Act, although Section 21 relating to the limitation for filing and consideration of an original application is specifically mentioned in the said Act itself and Section 21 (3) provides for condonation of delay, but similar provision for review is not mentioned in the Administrative Act. (25) Since, the issue engaging the attention of this Court relates to condonation of delay in filing of a review Application and the necessary process and since the limitation thereof are not specifically mentioned in the Administrative Act, 1985, one has to see and refer to section 35 of the Act, which provides for power of central Government to make rules in the following terms :- "35. Power of the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since, the issue relating to competency relating to framing of rules is not before this court in the present matter, this court does not wish to express its view on the same and restricts itself to the issue raised in the present petition. (27) Nevertheless, the Administrative Rules came to be framed in 1987 and Rule 17 contains the provisions for application of review in the following words: "17. Application for review- (1) No application for review shall be entertained unless it is filled within thirty days from the date of receipt of copy of the order sought to be reviewed. (2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the chairman may, for reasons to be recorded in writing, direct it to be heard by any other bench. (3) Unless otherwise ordered by the Bench concerned, a review application shall be disposed of by circulation and the Bench may either dismiss the application or direct notice to the opposite party. (4) Where an application for review of any judgment or order has been made and disposed of, no further application for review shall be entertained in the same manner. (5) No application for review shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure Code as 30 days. However, since the provisions of Limitation Act are applicable, Section 5 of the Limitation Act is also applicable and a Review Petition can be filed beyond the period of 30 days, if the petitioner is able to show sufficient cause for the delay. 19. In exercise of power conferred under Section 35(2)(d), (e) and (f) and Section 36(c), the Central Government has promulgated the Kerala Administrative Tribunal (Procedure) Rules, 2010. Rule 21 of the Rules says that no application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought. As already observed, the rule making power does not take in power to make rules for fixing a period of limitation for filing a review application. Such a prescription of 30 days, which is the same as the one prescribed under the Limitation Act, for filing a review petition under the Code of Civil Procedure, was totally unnecessary and uncalled for. Even without Rule 21, the review application ought to be filed within 30 days. Since the period of limitation prescribed in Rule 21 is the same as that applicable for a review petition under the Code of Civil Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (30) Essentially, the law of limitation is founded on the anvil of public policy. However, while examining rule 17, we are countered with the disability which is present in the peremptory form for preference of a review application, in case they are filed after 30 days. At this juncture, it would be apt to mention that the Hon'ble Supreme Court in the case of Mangu Ram V/s Municipal Corporation Delhi, (1976) 1 SCC 392 has held that prescription by a special Act of a mere provisions of a period of limitation however peremptory or imperative language is not sufficient to displace the applicability of section 5 of the Limitation Act, in the following words: "7. There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in s. 29, sub-s. (2) is concerned, whereas under the Indian Limitation Act, 1908 s. 29, sub-s.(2), cl. (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than these contained in ss. 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of s. 5 was in clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language is not sufficient to displace the applicability of s. 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, s. 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-s. (4) of s. 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in sub-s. (4) of s. 417 since the Municipal Corporation of Delhi had sufficient cause for not preferring the application within such time limit. The order granting special leave was in the circumstances not an order outside the power of the High Court." (31) This brings us immediately to section 29 (2) of the Limitation Act, which rises to the occasion and says in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced." (Emphasis supplied) (34) Apparently, the Apex Court in the Commissioner of Sales Tax, U.P. Vs. Madan Lal Dan & Sons. Bareilly(1977 (1) SCR 683) has held that for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as, and to the extent to which they are not expressly excluded by such special or local law, and noted that there was nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation. (xi) It is to be borne in mind that no one gets away with fraud, is representation or interpolation by taking recourse to the technicalities of law of limitation. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. (xiii) The State or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose provisions has, therefore, to be judged not from the terms of limitation Act but by the provisions of the Administrative Tribunals Act 1985 and the Rules made thereunder relating to the filing of original applications and review applications and their disposal to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of the Act. 13. Rule 19 is couched in negative form and disables the person from seeking review under Section 22(e)(f) of the Act, in case review is not filed within 30 days of the order. However, in the Act nowhere it is stated the method or manner or time limit to file such review except Rule 19. In view of the same, the power of Tribunal to condone the delay under Section 21 of the Act is applicable only to the applications filed under Section 19, but the same cannot be made applicable to the review sought under Section 22(3)(f). Sub-section (1) of Section 22 puts an embargo on exercise of such power by the Tribunal, namely that the power of the Tribunal shall be guided by the principles of natural justice and of any rules made by the Central Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a review application is 30 days, as provided in Rule 17 of the Rules of 1987. Thus, the Act of 1985 lays down specific provisions with regard to limitation as well as the power for condonation thereof. Hence, the proceedings under the Act of 1985 cannot be governed by the provisions of the Limitation Act, which is a general law governing issues of limitation arising in proceedings before Courts. This view is further fortified when we consider the ratio of the judgments relied upon by Dr. Sharma in the cases of International Asset (supra) and Sakuru (supra), wherein it has been stipulated that the proceedings before a statutory Tribunal cannot be placed at par with proceedings before a court. The Tribunal shall have no power to condone the delay unless expressly conferred the power by the statute creating it. As Rule 17 of the Rules of 1987 expressly provides timeline of 30 days for entertaining a review application, unless the statutory provision is declared to be ultra vires such power cannot be read into the statute by a judicial pronouncement." (40) This Court finds that both K. Ajit Babu's case (supra) and Constitutional Bench Judgement in S.S. Rathore's case (supra) are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to those who are party to a case. It was further held that right of review is available if such an application is filed within the period of limitation on the grounds mentioned in Order 47 of the Code of Civil Procedure. Thus K.Ajit Babu (supra) cannot be understood as laying a law that the Tribunal is dehors of its power in entertaining an application for review filed beyond the prescribed period of limitation, if the same is accompanied by an application under Section 5 of the Limitation Act." (42) After distinguishing the judgment delivered by Hon'ble Supreme Court in K. Ajit Babu's case, the Full Bench of Hon'ble High Court of Orissa in the case of Akshaya Kumar Parida (Dead) (supra) held that : 22. The logical sequitur on the analysis made in the preceding paragraphs is that neither Section 22 of the Act nor Rule 17 of the Rules expressly excluded the applicability of Section 5 of the Limitation Act. In the event an application for review is filed beyond the period of limitation along with an application for condonation of delay and the applicant satisfies the Tribunal that he had sufficient cause for not preferring an application within the time, the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "22. In our humble opinion, with all the respect at our command, we are of the considered view that the said judgment cannot be treated as a binding precedent since it falls under both the exceptions viz. per incuriam and sub silentio. We have already indicated the statutory provisions which govern the filing of a review petition before the Tribunal. The Hon'ble Supreme Court, in the aforesaid decision was not apprised of the statutory provisions, which relate to the power of review available with the Tribunal. In fact the application for review is not one filed under Rule 17 but under Section 22(3)(f) of the Administrative Tribunals Act. Section 22 of the Act which says that the Tribunal shall have the same powers as that of a civil court for reviewing its decisions was not considered. The provisions of the Civil Procedure Code and that of the Limitation Act, which governs the power of review were also not considered. Even if Rule 21 is to be treated as the specific provision prescribing limitation, the fact that the said prescription is subject to Section 29 of the Limitation Act was also not considered." (Emphasis Supplied) E. CONCLUSION (46) Accordingly, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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