S. Venkatachalam vs Union Of India & Ors.

ORDER

“......... to call for the records of the order of the 5th Respondent vide No. P.22/MDU - Admn /SV/OA/1482/2019 dated 27.04.2020 and set aside the same and consequently direct the 5th Respondent to provide back wages to the Applicant from the date of suspension till the date of dismissal, that is, from 19.02.2000 till 28.5.2007 with all consequential and attendant benefits with 15% interest from the date of 19.02.2000 till the disposal of this Original Application and pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice.

5.(a). An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority competent to do so.

5(b). Where a Railway servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Railway servant shall continue to be under suspension until the termination of all or any of such proceedings.

5.c).An order of suspension made or deemed to have been made under this rule, may, at any time, be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.

6.

Notwithstanding anything contained in sub-rule 5, an order of suspension made or deemed to have been made under sub-rule (1) or sub-rule (2) of this rule shall not be valid after a period of ninety days unless it is extended after review in the manner provided in sub-rule (7) of this rule, for a further period before the expiry of ninety days.

7.

The review of an order of suspension shall be done by the authority which is competent to modify or revoke the suspension, on the recommendation of the review committee constituted for the purpose, and such competent authority shall pass orders either extending or revoking the suspension before expiry of ninety days from the date of order of suspension. Subsequent review shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.

“7.

It is not in dispute that the applicant was arrested and was kept under custody for more than 48 hours. It is an admitted fact that this fact brought to the notice of the respondents only by the police authorities and not by the applicant. It is submitted by the respondents that the applicant has not reported to the respondents after he came out on bail for a long time. Moreover, the applicant himself has admitted that his house was sealed by the police authorities and as such his whereabouts was not known to the respondents, and the applicant has also failed to inform the respondents about his whereabouts. We find from the records that the inquiry conducted against the applicant was in conformity with the rules. It is also seen that the applicant was given adequate opportunity to participate in the inquiry and defend his case. However, the applicant did not participate in the inquiry and started representing to the higher authorities for quashing of the disciplinary proceedings. As such the inquiry was conducted exparte without the participation of the applicant. Thereafter, inquiry report was supplied to the applicant to submit his representation. The applicant submitted his representation and after considering the representation of the applicant the Disciplinary Authority imposed the penalty of dismissal from service. The applicant submitted his appeal to the Appellate Authority and the Appellate Authority after analysing the facts and circumstances of the case upheld the order of the Disciplinary Authority and rejected the appeal. The applicant has filed revision petition, which was also rejected upholding the orders of the Disciplinary Authority and Appellate Authority. Thus, it is seen the applicant was given adequate opportunity and therefore, no can be said illegality o have been caused to the applicant. However, the orders passed by the Appellate Authority and Revisional Authority are reasoned and speaking order. Therefore, we do not find any reason to interfere with the impugned orders, and they are confirmed.

8.

During the course of the arguments, it was submitted by learned counsel for the applicant that the applicant was not paidsubsistence allowance for the period when he was under suspension. This fact was also admitted by learned counsel for the respondents. The respondents have also satisfactorily explained the reason for non-payment of subsistence allowance inasmuch as the whereabouts of the applicant was not known to them. We, therefore, direct the respondents to work out and pay the admissible subsistence allowance to the applicant as per law within a period of three months from the date of receipt of a copy of this order.”

“16.

Though the applicant is legally entitled, we have to see the conduct of the applicant. The applicant was involved in a criminal case, he had cheated the public investors to the tune of Rs.1,33,91,400/- He is involved in a criminal case which is pending, he was arrested, he did not inform the respondents about his whereabouts, he was removed from service, that has been upheld by this Tribunal. The civil servant is involved in a criminal case and without prior permission, he had left the Headquarters. Under these circumstances, the applicant is not entitled for any of the allowances under IREC.

17.

For the foregoing reasons, we are of the considered view that the applicant failed to establish for grant of HRA and CCA and payment of enhanced subsistence allowance at the rate of 75% during the period of suspension. The respondents have justified in their reply statement that the applicant left the Headquarters Madurai without prior permission of the competent authority ie., the disciplinary authority and was in occupation of the CPWD Quarters at K.K. Nagar, Chennai. The OA is devoid of merit and accordingly the OA is liable to be dismissed.”

“11.

It is seen from the order dated 10.03.2010 in OA No. 537/2009 that this Tribunal had (in para 3 of the order) taken note of the proceedings relating to the charge memo dated 11.02.2000 as well as the initiation of fresh disciplinary action against the Applicant. The Applicant had himself made a reference to the proceedings connected with the charge memo dated 11.02.2000 in para 4(ii) of his OA. Thus, there was no fraud by the Respondents as alleged by the Applicant in the instant MA. On the contrary, It was the Applicant who has not disclosed in his MA the filing of another OA bearing No. 145 / 2012 before this Tribunal for enhancement of subsistence allowance and for payment of HRA and CCA for the period of suspension which indicated that the Applicant had implicitly acquiesced with the proceedings and orders of this Tribunal in OA No. 537/2009. The Applicant had got information including a copy of the IO's Report etc. in the proceedings arising out of the first charge-memo along with letter dated 12.07.2011 of the Department which was well before the filing of OA No. 145/2012. It is also seen that the fact of issue of a second charge-sheet instead of bringing to culmination the proceedings instituted with the issue of the first charge-memo was not included by the Applicant as a ground in the grounds for relief in OA No. 537 of 2009.

12.

It is one of the well accepted principles of law that a person resorting to legal action should include in his /is the whole claim he is entitled to make in respect of the cause of action. This policy of law is based on the principle that the opposite party should not be vexed twice for one and the same cause of action. Order II R.2 of Code of Civil Procedure 1908 can be read in pari Materia for this legal position, though this Tribunal is not bound by the Code of Civil Procedure (C.P.C.). Nevertheless, the principle in the said legal provision can be universally applied in appropriate cases as a rule of prudence. It is also axiomatic that a person seeking legal recourse by filing a fresh case cannot seek the same relief by putting forth new grounds. When the fact of issue of two charge-memos was known to the Applicant, he should have raised this issue in the course of proceedings in OA No. 537/2009 or a writ petition could have been filed by him then assailing the order of this Tribunal. He has raised the issue after a lapse of more than 3 ½ years by filing this MA on the specious plea of fraud alleged to have been played on this Tribunal by the Respondents.

13.

Though, in Kanilal Bera Vs. UOI & Ors_¹¹, the Hon'ble Supreme Court has held that second enquiry on the same charge which could not be proved during first enquiry was not permissible, the second charge memo is said to contain additional charges regarding suppression of information by the Applicant regarding his arrest by Police and his affidavit given to the investing public in connection with the affairs of the Financial Company. It is open to a Disciplinary Authority to cancel the first charge-sheet if he finds some deficiency in it and issue a fresh charge-sheet, before conclusion of the disciplinary proceedings arising out of the 1st charge-sheet. In any case, it is not open to this forum at this juncture to go into these aspects in this MA. In para 11 above, the conclusion is that there was no fraud by the Respondents as alleged by the Applicant.”

“10.

Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.”

“The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. When a belated representation in regard to a “stale” or dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a court or tribunal, before directing “consideration” of a claim or representation should examine whether the claim or representation is with reference to a “live” issue or whether it is with reference to a “dead” or “stale” issue.”

“4.

At the outset, it is required to be noted that by way of writ petition under Article 226 of the Constitution of India as such the petitioner prayed for a specific performance of Clause 12 of the Sale Deed dated 19.09.2001. For the first time, the petitioner made a representation for allotment of 10% plot as per Clause 12 of the Sale Deed dated 19.09.2001 in the year 2010, i.e., after a period of 10 years from the date of execution of the Sale Deed. Therefore, as such if the suit would have been filed for specific performance, the same would have been barred by limitation. Despite the above, the petitioner filed a writ petition before the High Court and as observed hereinabove prayed for specific performance of Clause 12 of the Sale Deed dated 19.09.2001 being Writ Petition No.37443 of 2011, which was also filed after a period of 11 years from the date of execution of the Sale Deed. Therefore, as such when the earlier writ petition was filed in the year 2011 which was also barred by delay and latches, the High Court ought not to have entertained the same. Instead, the High Court entertained the said writ petition and directed the NOIDA to decide the representation of the petitioner, which as such was made after a period of 10 years, expeditiously and it gave the fresh blood to the litigation, which otherwise was barred by delay and latches. The High Court by passing the order dated 07.04.2017 as such did not realise and/or appreciated that the writ petition itself was required to be dismissed on the ground of delay and latches as the same was filed after a period of 11 years from the date of execution of the Sale Deed under which the right was claimed. We have come across number of such orders passed by the High Courts directing the authorities to decide the representation though the representations are made belatedly and thereafter when a decision is taken on such representation, thereafter it can be said on behalf of the petitioner that the fresh cause of action has arisen on rejection of the representation. Therefore, when such orders are passed by the High Courts either relegating the petitioner to make a representation and/or directing the appropriate authority to decide the representation, the High Courts have to consider whether the writ petition is filed belatedly and/or the same is barred by latches and/or not, so that in future the person who has approached belatedly may not contend that the fresh cause of action has arisen on rejection of the representation. Even in a case where earlier representation is rejected, the High Court shall decide the matter on merits.

5.

As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it isfound that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.

"16.

...... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."