Gaurav Kumar vs Union Of India And Others

Vide separate, OA stands disposed off.

Present OA has been filed by the applicant seeking quashing of the dismissal of the applicant from service and for conversion of punishment of

dismissal from service to discharge from service simplicitor.

Along with the OA. MA 2402/2019 has been filed seeking condonation of delay in filing the OA.

Heard counsel for the applicant on the MA seeking condonation of delay in filing OA. As per the averments made in the OA the order of dismissal

from service was passed by the DCM on 14.07.2014. A pre-confirmation petition under Sction 161 of the Air Force Act, 1950 was moved by the

applicant which was not considered and the same was confirmed by the AGO-in-C EAC on 26.08.2014 which was handed over to the applicant on

12.09.2014 It is further stated that the applicant was not provided with the Court Martial Proceedings and sentence passed by the Court which was

received through RTI vide letter dated 20.07.2018.

It is alleged in the application that there is delay of 1875 days which is inadvertent and needs to be condoned.

Section 22 of AFT Act, 2007 deals with limitation Relevant portion of this Section so far is material for the present purpose, is reproduced as

under:-

22 Limirafion.

(1) The Tribunal .s-hall 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 21 has been made unless the application is made within six months from the date on which such final order

has been made;

(b) xxx

xxxx

(2) Notwithstanding anything contained in sub-section

(I), the Tribunal may admit an application after the period of six months referred to in clause (a) or clause

(b) of sub-section (I), as the case may be, or prior to the period of three years specified in clause (c), if the Tribunal is satisfied that the

applicant had sufficient cause for not making the application within such period"".

A bare reading of this Section goes to show that the limitation for filing an application is six months from the date on which the final order has been

made. As per the case of the applicant himself, the sentence was awarded to the applicant on 14.07.2014. The order was confirmed on 26.08.2014

which was handed over to the applicant on 12.09.2014, as such within six months of the confirmation order on 26.08.2014 or its being handed over to

the applicant on 12.09.2014, it was incumbent upon the applicant to have filed the OA challenging the order if he was aggrieved by the same.

However, the present OA has been filed only on 28.08.2019.

7 Even if it is taken that the copy of the Court Martial Proceedings and sentence by the Court was not provided to the applicant and the same was

received through RTI on 20.07.2018 and the period of limitation is to be taken from 20.07.2018, even then, the challenge should have been made

within six months. i.e., by 20.01.2019 Looking from any angle, the OA is barred by limitation.

8 Sub-Section(2) of Section 22 of the Act, however, provides that the Tribunal can admit an application after the period of six months if the applicant

is able to satisfy the Tribunal that he had sufficient cause for not making the application within the prescribed period. Therefore, it is imperative on the

part of the applicant to show sufficient cause in order to claim the benefit of condonation of delay. The only plea taken by the applicant in the entire

application is:-

There is a delay of 1875 days which is inadven'ent and needs to be condoned for the sake of justice"".

As such absolutely no cause, much less sufficient cause, has been assigned by the applicant which warrant condonation of delay in filing OA.

Confronted with this situation. counsel for the applicant submitted that the delay has occurred as the papers which were given by the applicant to him

were misplaced and only when the same were traced, he could file the OA. This submission is completely an afterthought. Had that been the case,

such an averment could have been made in the application itself.

Under the circumstances, there are absolutely no ground for condonation of delay in filing the OA. Accordingly, the application is dismissed.

Since the OA is not maintainable being barred by limitation, as such, same is dismissed at the stage of admission itself.