1 WP8382.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8382 OF 2011 Mrs.Amita Joshi ... Petitioner v/s 1. The Union of India & anr. ... Respondents Mr.Sandeep V. Marne for the petitioner. Mr.R.V.Govilkar i/by Mr.Jay K. Bhatia for Resp. Nos.1 and 2. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 7TH DECEMBER, 2011 P.C.: 1. Heard Mr.Marne, the learned counsel for the petitioner and Mr.Govilkar, the learned counsel for the respondents. 2. This petition filed under Articles 226 and 227 of the Constitution impugns the order dated 9.8.2011 passed by the Division Bench of the Central Administrative Tribunal (Mumbai Bench) in Original Application No.41 of 2011 filed by the present petitioner. 2 WP8382.11 3. Rule. Respondents waive service. 4. By consent of the parties, the petition has been heard and more so, because by the impugned order the original application filed by the petitioner has been dismissed solely on the ground of delay. 5. The petitioner is an officer with the Commissioner of Customs, Sahar Air Cargo Complex, Andheri. It was alleged that during the period from January, 1995 to October, 1997 in all 300 duty drawbacks of Rs.50,14,80,668/- were issued in favour of three firms, namely, (i) M/s. Om Traders, (ii) M/s.Tropical Exotics and (iii) M/s.Prime Agricom on continuous basis and by way of duty drawback. This amount of Rs.50.14 crores was claimed to have been received by Mr.Naval Kishor Bangard and his wife Smt.Sangeeta Bangard by submitting the forged export documents to the Drawback Section of the Customs Department and in collusion with their close associate. The C.B.I. had recommended prosecution against three custom officers, major penalty against 30 officials including the applicant and minor penalty against 12 officials (in all 45 officials). The petitioner is one of the 30 officers against whom R.D.A. for measure penalty was recommended by the C.B.I. However, 3 WP8382.11 about 9 years there was no progress in the action to be taken on the C.B.I. report and for the first time the charge- sheet was issued on 21.4.2005. Five of the 30 officers to whom the charge-sheet was issued for major misconduct approached the Tribunal by filing Original Application Nos. 382, 383, 384 of 2005 and 216 and 217 of 2006. Original Application Nos.382 to 384 of 2005 came to be decided by a common judgment and order dated 26.6.2006 and they were allowed by quashing the gist. Similarly, Orignal Application Nos.216 and 217 of 2007 came to be allowed by a common judgment dated 12.10.2006 rendered by the Division Bench of the Tribunal. The present respondents challenged these judgments in Writ Petition Nos. 1697, 1699, 1717, 1784 and 1871 of 2007. By a common order dated 4.2.2003 the Division Bench of this Court was pleased to dismissed all these petitions. The respondents approached the Supreme Court of India in S.L.P. (Civil) No.6090-6094 of 2009 and the same came to be dismissed on 14.1.2009 by condoning the delay. 6. 11 more officers out of 30 customs officers filed separate original applications i.e. O.A. No.153 to 158, 161, 162, 428 and 444 of 2009. By a common judgment and order dated 3.2.2010, all the original applications were allowed and the charge-sheets issued against the original applicants came 4 WP8382.11 to be quashed and set aside solely on the ground of undue and unexplained delay caused in issuing the charge-sheets. This common judgment and order dated 3.2.2010 was not challenged by the respondents either before this Court or the Supreme Court and thus it received finality. 7. It is under these circumstances the petitioner approached the Tribunal by filing Original Application No.41 of 2011. She contended that the charge-sheet was issued after an inordinate delay of 9 years and the said delay was unexplained, the charge-sheets issued to 15 officers similarly placed came to be quashed and set aside and her representation dated 5.8.2010 for dropping of the charge- sheet was not decided and all of a sudden the department woke up after deep slumber and appointed the enquiry officer and the presenting officer vide order dated 27.9.2010 for the first time. The petitioner, therefore, contended that the departmental enquiry had commenced with the appointment of the enquiry officer after a long period of 14 years and, therefore, she prayed for quashing of the charge- sheet. The Tribunal by the impugned order proceeded to decide the issue of limitation and by the impugned order held that the original application was hopelessly barred by limitation inasmuch as the appellant did 5 WP8382.11 not opt the departmental remedy available to her by way of representation to the memorandum of charge-sheet issued. It further directed that the enquiry against the applicant be completed as expeditiously as possible and in any way within a period of six months. 8. In our opinion, the view taken by the Tribunal suffers from grave and serious errors apparent on the face of the record. In her original application, the petitioner specifically stated that she had submitted a representation to drop the charge-sheet on 5.8.2010 and thereafter while the said representation was pending, the department woke up out of deep slumber and appointed the enquiry officer as well as the presenting officer vide its order dated 27.9.2010. In her representation she had pointed out that in respect of 15 similarly placed officers, the very same charge-sheets as issued for the allegations of measure misconducts were quashed and set aside and the said orders had received finality. We have no doubt that the original application was, therefore, required to be decided on merits and having regard to the circumstances set out herein above, the petitioner had made out a case for continuous cause of action after she had submitted the representation dated 5.8.2010, the original application was not barred by limitation and the 6 WP8382.11 specific statement that she had submitted a representation appears to have escaped the attention of the Tribunal and this has resulted in serious miscarriage of justice. When the very same Tribunal had allowed the original applications filed by 15 similarly placed officers and covered by the very same charge-sheet, it was necessary for the Tribunal to consider the petitioner’s case on merit rather than dismissing her applications as hopelessly time barred. 9. Section 21(1)(b) of the Administrative Tribunals Act states that 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, the application could be filed. Whereas, sub -section (3) of Section 21 of the said Act vests discretionary powers with the Tribunal to condone the delay and it reads as under: “(3) Notwithstanding anything contained in sub- section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub- section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.” 7 WP8382.11 10. In the instant case, while dealing with the issue of limitation, it was necessary for the Tribunal to refer to the scheme of Subsection (1)(b) and (3) of Section 21 of the Administrative Tribunals Act, 1985 so as to consider whether the application was time barred. This has not been done by the Tribunal and for the reasons best known to it. Hence, the view taken by the Tribunal that the application filed by the petitioner was hopelessly time barred is unsustainable on any count. 11. In the result, the petition succeeds and the impugned order passed by the Tribunal is hereby quashed and set aside. Consequently, Original Application No.41 of 2011 is restored to the file of the Central Administrative Tribunal (Mumbai Bench) and remanded for being decided on its own merits. 12. Rule is made absolute accordingly but without any order as to costs. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.)