KS Sunil Kumar vs The Chairman & Secretary, Department Of Space & Anr.

This Miscellaneous Application is filed by the Original Applicant seeking to condone delay of 4360 days in filing the O.A. Along with the application the applicant has filed an affidavit also.

Admittedly, applicant is a former Scientist/Engineer SE in VSSC, Thiruvananthapuram, who took voluntary retirement on 01.03.2012. Later, he moved O.A.612/2013 claiming retrospective promotion to the grade of Engineer SE and consequential further promotion to Engineer SF. That O.A. was dismissed by the Tribunal. OP(CAT) and SLP (Civil) moved against the said order were also dismissed. Then the applicant filed RP 440/2022 before the Hon'ble High Court which also has gone against him. Then he filed O.A.729/2014 challenging the non-reckoning of additional increments while fixing pay on promotion etc. Tribunal dismissed the same, against which the applicant filed OP(CAT)270/2019. Respondent filed OP(CAT)55/2022, aggrieved by some adverse remarks against the Union of India; both are pending.

Now the applicant wants to contend that his application for voluntary retirement was not voluntary, which is vitiated by inducement, therefore, Annexure-A7 is a nullity. Annexue-A2 indicates that the Medical Board of the VSSC had found him suffering from recurring depressive disorder with 'Meniers disease'. Depressive disorder@ mental illness is one of the disabilities under Section 2(i) of the Persons with Disabilities Act 1995. Under Section 47 of the PWD Act it was not open to the respondents to dispense with his service or reduce in rank. The applicant had acquired the disability during his service. According to him, whenever a Government servant seeks voluntary retirement on medical ground or when the administrative authority examines whether he is covered under Section 20(4) of RPWD Act, 2016 /Section 47 of the PWD Act 1995, the Government servant shall be advised that he has the option of continuing in service. The same pay scale and service benefits and that in case he reconsiders his decision to withdraw his notice his case will be dealt with under Section 20 of the RPWD Act. But here the respondents have failed to advice the applicant. So, according to him, his voluntary retirement was not at all voluntary and was induced by the administrative authorities.

It was only after getting information under the Right to Information Act that he had gathered about the decision of the Medical Board which was never communicated to him. Thereafter he consulted lawyers like Sr.Advocate M/s. (Retired Justice) M.Chitambaresh, Dr.K.B.S. Rajan, Sr.Advocate Sri.O.V. Radhakrishnan and Advocates M/s.M.Ajay, P.A.Aziz and Dr.Shilpa Aziz and the present lawyer. There is no wilful delay on his part in filing the OA. No third party interest is involved. Cause of action is recurring one. If the OA is not entertained and his claim is not considered, he would suffer recurrent monetary loss. Hence the application.

Respondents have objected the MA. According to them, there is no merit in the application and in the Original Application. He had given the Annexure-A6 request voluntarily which was accepted and was relieved of his duties on the forenoon of 01.03.2012. Thereafter, at no point of time he had approached or informed the respondents his desire to withdraw Annexure-A6. The earlier litigation had gone upto the Supreme Court and was decided against him throughout. He had not stated the date on which the cause of action had arisen. He has not shown sufficient cause for the delay. The application is barred by constructive res judicata. The Hon'ble High Court had dismissed OP(CAT) 227/2017 based on the decision in A.K. Bindal & another v. Union of India and others [AIR 2003 SC 2189]. He had ample opportunity to raise all his grievances and seek appropriate reliefs. The decision to seek voluntary retirement was a conscious decision. Thus the very foundation based on Section 47 of the PWD Act 1995 is lost. After availing voluntary retirement, atleast twice he had approached this Tribunal and on both the occasions he lost the case and in none of the occasions, Annexure-A7 was challenged. So, the application is sought to be dismissed.

I heard Sri.R.Sreeraj, learned counsel for the applicant and Smt.O.M.Shalina, learned Senior Central Government Standing Counsel for the respondents.

While working as a Scientist/Engineer SE, on 31.01.2012 applicant gave a request for voluntary retirement Annexure-A6 which reads thus:

This request was promptly entertained and by Annexure-A7 the application was allowed and he was relieved of his duties on the forenoon of 01.03.2012. At that time, he was Scientist/Engineer SE. As noticed above, thereafter twice he had approached this Tribunal. At first, seeking retrospective promotion as Engineer SE and consequential promotions. That was dismissed by this Tribunal. He went upto the Supreme Court, but did not get any relief.

Thereafter, he moved OA 270/2019 for re-fixation of pay alleging non-reckoning of additional increment at the time of fixation of pay on promotion. That was also dismissed and the OP(CAT) is pending. In other words, in none of the occasion, he had a case that Annexure-A6 request for voluntary retirement was vitiated by any manner and therefore, Annexure-A7 is also bad. Without taking such a contention in the earlier proceedings it is illegal and unjust to raise the same for the first time, after more than 12 years of availing voluntary retirement. It is clearly the result of a second thought.

Annexure-A6 is a conscious act. Applicant is not an ordinary person. He was a Senior Scientist. It was the manifestation of his own volition. Though it is stated that it is vitiated by inducement, particulars of such an allegation are not stated. It is the elementary principle of pleadings that whenever vitiating circumstances are alleged, it should be supported by details and particulars. 11. Even otherwise, it does not stand to reason that such a high official could be induced in an important aspect affecting his life and career, and driven out from a high profile organisation like the VSSC. In other words, it is very patent that it was the outcome of his conscious act. Worsening the case of the applicant, such a session has never been taken before the Tribunal in the two earlier O.A.s.

It requires to be stated that OA 729/2014 was filed by Mr.Sreeraj himself, who presently appears for him. Without raising such a contention in the earlier applications, he cannot now take a stand taking exception to Annexure-A6.

Worsening the case of the applicant, there is no justification in claiming benefit based on the provisions of the PWD Act 1995 or the Right of Persons with Disabilities Act 2016. Firstly, as indicated earlier, he had sought to retire voluntarily citing personal grounds. Secondly, he had no case that he had acquired any disability during the course of employment. More importantly, these contentions are raised for the first time, after more than 12 years, after suffering two set backs. Therefore, he cannot relate the provisions of both the Disabilities Act. 14. Most important consideration in a delay condonation application is whether cogent and satisfactory reasons are shown for the delay. Here the delay is more than 12 years. To put it bluntly, the applicant has not stated any satisfactory reasons in condoning the delay. There is also considerable force in the contention that the OA is barred for constructive res judicata. His contentions could have been raised in the earlier litigations.

On an evaluation of the entire circumstances the application does not deserve consideration. It is badly barred by limitation. Miscellaneous Application is devoid of merits and is dismissed.