Mohammed Sakir vs Union of India and Another

Calling in question tenability of an order dated 29.10.2013 passed by the Central Administrative Tribunal, Bench Jabalpur (hereinafter referred to as ''CAT'') in M.A. No. 987/2013, dismissing a prayer made for restoration of O.A. No. 36/2006, this writ petition has been filed.

Facts in brief, go to show that one Mohammed Rafique was working in the Railway Establishment, he died in harness on 28.12.1979. At that point of time, he was a Mukadam in the Loco-shed at Satna. After his death, it seems that petitioner, his son, was seeking compassionate appointment. When his claim was not considered and decided, he filed an application before CAT, which was registered as O.A. No. 36/2006. However, on 11.5.2006, the application was dismissed for want of prosecution. After the Original Application bearing No. 36/3006 was dismissed on 11.5.2006, petitioner did not take any action for more than seven years and it is only after seven years that the Misc. Appeal was filed for restoration of the Original Application.

The delay of seven years in filing the application for restoration was explained by contending that the counsel, who was appearing the petitioner/applicant, did not inform the applicant, the counsel whenever contacted on phone used to tell the applicant that the matter is pending and it is only when the petitioner/applicant came to Jabalpur in July, 2013, that he was apprised of the fact of dismissal of his application, and he took steps for restoration of the same. The Tribunal dealt with the matter and found that there is delay of more than seven years in filing the application for restoration. The same has not been properly explained and a bald statement is made that the counsel did not apprise. The Tribunal holding that the delay is not properly explained dismissed the application for restoration and, therefore, this writ petition.

Learned counsel for the petitioner argued that the default of the counsel should not render the petitioner remedy less and as there is no decision on merits, on the application, the Tribunal should have been more liberal and should have restored the application and decided the same on merits.

Smt. Amrit Ruprah, learned counsel for the respondents, submits that the Tribunal has passed a reasonable order and the delay of seven years has not been properly explained. That apart, it is emphasized by her that the employee concerned Shri Mohammed Rafique died on 28.12.1979, and the application for compassionate appointment filed in the year 2006 itself was not tenable as the principle governing grant of compassionate appointment clearly prohibits appointment on compassionate grounds after a long period of time. Accordingly, Smt. Ruprah submits that no fruitful result would be forthcoming in deciding the matter on merits and, therefore, this application be dismissed.

We have heard learned counsel for the parties and perused the records.

Even though the law governing grant of compassionate appointment prohibits appointment on compassionate grounds after a long period of time, but the facts and particulars necessary for taking such a decision are not available on record and, therefore, we restrain ourselves from entering into this area, in these proceedings as contended by Smt. Ruprah.

The only question is as to whether the delay of more than seven years should have been condoned and the application restored?

Petitioner has filed an affidavit and it is his contention that he used to regularly contact his counsel on phone and the counsel used to assure him that the matter is pending and, therefore, it was on this assurance that he was not appearing. This explanation is a reasonable one and in the absence of any material to show that this is a false assertion, it should have been allowed.

A Service Tribunal dealing with service matters should be more liberal and should decide the dispute on merits and decision on technical grounds should be avoided as far as possible. When a litigant comes to a Court of law for adjudication of his dispute, an endeavour should be made for deciding the dispute on merits and applying the legal principle on the merits of the dispute, a decision should be taken. Merely rejecting the application on technical ground should be avoided and should be resorted to in ''rarest of rare'' case where the person concerned seeking indulgence of the Court is found to have misused the process of law and dis-entitled to discretionary relief on such consideration. A liberal approach in the matter of condonation of delay and restoration of proceedings should be resorted to and in a case of an employee, as far as possible, endeavour should be made to decide the dispute on merits.

Keeping in view the aforesaid principle and considering the fact that the petitioner/applicant has explained his absence and the delay in a reasonable manner, we deem it appropriate to restore the Original Application and direct the Tribunal to decide it on merits.

Accordingly, this application is allowed. Order-dated 29.10.2013, dismissing the application for restoration, is set aside. Original Application No. 36/2006 is restored to the file of Central Administrative Tribunal, Jabalpur Bench; and, the Tribunal is requested to decide the application on merits, in accordance with law.

With the aforesaid observations, the petition stands allowed and disposed of.

CC as per rules.