1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4913 OF 2006 JAMEEL AHMED MOHAMMED ) residing at Flat No. 3, Rose ) Minar Annexe, 87, Chapel Road ) Bandra (W) Mumbai 400 050. ) .. PETITIONER Versus 1. UNION OF INDIA ) through The Secretary, ) Ministry of Finance, Depart-) ment of Revenue, North Block) NEW DELHI - 110 001. ) 2. COMMISSIONER OF CENTRAL ) EXCISE, Mumbai I (Cadre ) Controlling Authority), ) M.K. Road, Churchgate, ) Mumbai 400020. ) 3. DEPUTY COMMISSIONER (P&V) ) Central Excise, Mumbai VII ) Commissionerate, CBD, ) Belapur, Navi Mumbai. ) 4. ADDL. COMMISSIONER (P&V) ) Central Excise, Bangalore-II) 2 5. ASSTT. COMMISSIONER, CEX, ) Central Excise, Bangalore-II) 6. JARENE THARAKAN ) Inspector of Central Excise ) Review Cell, Office of the ) Commissioner of Central ) Excise, Thane-II. ) .. RESPONDENTS Mr. G.K. Masand i/b Smt. S.R. Sawant for petitioner Smt. (Dr.) Poornima Advani with Smt. Rutuja Ambekar i/b Shri R. T. Lokhande for R-1 to 5. CORAM: SMT. RANJANA DESAI & SMT. R.S. DALVI, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED: 11TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:26TH FEBRUARY,2008 JUDGMENT:-(Smt. Ranjana Desai, J.) . The petitioner has challenged in this writ petition judgment and order dated 19/9/05 passed by the Central Administrative Tribunal ("Tribunal" for short) in Original Application No. 640 of 2002. The facts of the case may be shortly stated: 2. On 21/9/88 the petitioner was appointed as Inspector in Bombay-III Collectorate. On 28/9/95 3 the petitioner made a representation for Inter-Commissionerate Transfer. He was transferred to Bangalore on 2/4/97. One of the conditions prescribed in the order dated 2/4/97 was that he would not be considered for further confirmation/promotion in the parent Commissionerate. The order further contained the condition that if the petitioner was confirmed in the old charge his lien would be retained in the parent Commissionerate till he was confirmed in the new charge. 3. On 10/9/98 the petitioner made a representation for repatriation to Bombay Collectorate. In February 1999 Bangalore Commissionerate approved the petitioner’s repatriation to Bombay-Commissionerate. On 7/4/99 Chief Commissionerate Mumbai who is the Competent Authority granted approval to the petitioner’s repatriation. It is the case of the petitioner that his lien of two years in Mumbai Commissionerate was subsisting on 7/4/99. On 15/4/99 order of approval of the petitioner’s repatriation to Mumbai Commissionerate was issued but the petitioner was sought to be treated as new entrant and he was placed before the last temporary 4 employee. The petitioner made representations dated 10/5/99, 14/5/2001, 31/10/01 and 10/6/02 making grievance that his transfer to Mumbai Commissionerate was not treated as repatriation resulting in loss of his seniority maintained in the Bombay Commissionerate. He filed original application in the Tribunal challenging the denial of proper seniority to him vide Establishment Order No 18/99 dated 15/4/99 whereby he was granted repatriation to the original post in the Mumbai Collectorate but his seniority was fixed below the last temporary Inspector of Central Excise and Customs in the Bombay Commissionerate in the seniority list of 2000 in which his juniors superseded him. The petitioner also challenged order dated 17/7/02 whereby the respondent department denied his plea of retention of lien and seniority in the combined M-1-07 Commissionerate Zone. 4. The Tribunal vide the impugned order dismissed the original application on the ground that it is barred by limitation. Being aggrieved by the said order, the petitioner has preferred this writ petition. 5 5. We have heard Mr. Masand, learned counsel appearing for the petitioner. He submitted that the Tribunal’s order is perverse and deserves to be set aside by this court. He contended that reliance placed by the Tribunal on the judgment of the Supreme Court in S. S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 is misplaced. Learned counsel drew our attention to Section 20 of the Administrative Tribunals Act 1985 ("the said Act" for short). He submitted that as per Section 20(1) of the said Act, a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. He submitted that Section 22 refers to a statutory appeal. He submitted that in this case no statutory appeal is contemplated. No statutory appeal could have been made and, therefore, Section 22 will not be applicable. He submitted that in Rathore’s case (supra) is, therefore, not applicable to the present case. 6. Learned counsel further submitted that condonation of delay is a matter of discretion of the court. If the delay appears to be the result 6 of a dilatory strategy the court may not condone it. But if the explanation offered by the party does not smack of malafides, the court must show utmost consideration for the suitor. In this connection reliance was placed by Mr. Masand on the judgment of the Supreme Court in N. Balakrishnan v. M. Krishnamurthy, (1987) 7 SCC 123. He submitted that where a litigant does not appear to have been guilty of willfully procrastinating the litigation while considering the condonation of delay application, the court should adopt a liberal approach. Mr. Masand also relied on the judgment of the Supreme Court in Collector, Land Acquisition v. Mst. Katiji & Ors., AIR 1987 SC 1353. 7. Dr. Poornima Advani, learned counsel for the respondents submitted that the present case is completely covered by Rathore’s case (supra) and no interference is necessary with the impugned order. 8. In Rathore’s case the appellant was dismissed from service by the Collector on 1/1/66. His appeal to the Divisional Commissioner was dismissed on 31/8/66. He served a notice under Section 80 of the Civil Procedure Code on 17/6/69 and filed a 7 suit on 30/9/69 for a declaration that the order of dismissal from service was inoperative and he continued to be in service. The suit was dismissed on the ground of bar of limitation, the suit having not been filed within three years from the date when the cause of action first arose as required under Article 58 of the Limitation Act. This view was confirmed upto the High Court. The Supreme Court dismissed the appeal in the light of its decision in Sita Ram Goel v. Municipal Board, Kanpur 1959 SCR 1148 where it was held that the cause of action first arose when the order of dismissal was passed and a person who waits till the decision of the State Government on his appeal and oversteps the limit of time cannot be helped. The Supreme Court, however, expressed that the decision in Sita Ram Goel’s case deserves reconsideration. Hence the case was placed before a Bench of seven judges. 9. The Supreme Court was thus considering the question as to when the right to sue accrued. The Supreme Court considered Section 20 of the said Act which states that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies 8 available to him under the relevant service rules as to redressal of grievances. The Supreme Court held that since Section 20 gives effect to the Disciplinary Rules, the exhaustion of the remedies available thereunder is a condition precedent to maintaining claims under the said Act and against this background, if the original order of punishment is taken as the date when cause of action first accrues for the purposes of Article 58 of the Limitation Act, great hardship is bound to result. The Supreme Court went on to observe that on one side, the claim would not be maintainable, if laid before exhaustion of the remedies, on the other, if departmental remedy though availed of is not finalised within the period of limitation, the cause of action would be no more justiciable having been barred by limitation. The Supreme Court observed that, it would be, therefore, appropriate to hold that the cause of action first arises when the remedies available to the public servant under the relevant Service Rules as to redressal are disposed of. The Supreme Court clarified that the civil court’s jurisdiction has been taken away by the said Act and, therefore, sofar as government servants are concerned Article 58 may not be invocable in view of the special limitation 9 provided under Section 21. 10. After considering Section 21 and 22 of the said Act, the Supreme Court concluded that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of a six months’ period from the date of preferring the appeal or making of the representation shall be taken to be the date when the cause of action shall be taken to have first arisen. The Supreme Court, however, clarified that this principle may not be applicable when the remedy availed of has not been provided by law. The Supreme Court added that repeated unsuccessful representations not provided by law are not governed by this principle. 11. Mr. Masand, learned counsel for the petitioner contended that the Supreme Court was dealing with a case where statutory appeal/representation was provided for and inasmuch as in this case no statutory appeal is provided it will not be covered by Rathore’s case. 10 12. It is true that the Supreme Court was considering a situation where an appeal against the order of dismissal was provided for and the appeal was filed. It is also true that in this case no statutory appeal/representation is provided for. But in our opinion, observations of the Supreme Court would still be applicable to it. Mr. Masand’s effort to persuade us to hold that Rathore’s case is inapplicable to the present case because it’s facts differ to the above extent from the facts which were before the Supreme Court in Rathore’s case must fail for the reasons which we shall now note. 13. Exhaustion of all remedies available in law i.e. under the relevant service rules is a condition precedent for filing an application before the Tribunal. That is what Section 20 of the said Act states. It is obvious from a reading of the judgment in Rathore’s case that the Supreme Court has interpreted Sections 20 and 21 of the said Act in a manner so as to protect a person who avails of the remedy available to him in law such as departmental appeal, revision etc. and awaits its decision, from being hit by the bar of 11 limitation on account of proverbial delays in disposing of departmental appeals, revisions etc. While making it clear that the principles as regards accrual of cause of action which it was laying down were not applicable to remedies availed of which are not provided in law, the Supreme Court further added that repeated unsuccessful representations not provided by law are not governed by the said principles. Therefore, the Supreme Court has expressed its views on a situation where remedies are adopted by a person which are not provided for in law such as repeated unsuccessful representations. 14. Since in this case there is no statutory appeal or revision provided under the relevant service rules, there is no question of the petitioner availing of them. The petitioner should have preferred the original application within one year from the date of the impugned communication i.e. from 15/4/99. The petitioner chose to send representations to the respondents. As we have already noted in Rathore’s case the Supreme Court has laid down that repeated unsuccessful representations not provided by law are not governed by the principles laid down by it. In our 12 opinion, therefore, Rathore’s case clearly covers the present case. 15. Section 20(2)(b) contemplates a situation where no order has been made by any authority competent to pass such order on a representation made by a person. For such a case Section 21(1)(b) provides the period of limitation. It states that when no order is passed by such authority on the representation made by a person, the application to the Tribunal must be filed within one year from the date on which six months expire from the date of such representation. In this case the petitioner made repeated representations. His representations are dated 10/5/99, 14/5/01, 31/10/01 and 10/6/02. According to the petitioner the respondents have not responded to them. Even if the petitioner’s case is held to be covered by Section 20(2)(b) read with Section 21(1)(b) the petitioner should have waited for a period of six months from his first representation i.e. from 10/5/99 and then filed original application within a period of one year from that date. The original application filed on 5/7/02 is, therefore, clearly barred by limitation, if it is examined from this angle. 13 16. It is averred in the petition that the petitioner’s seniority was affected by the seniority list issued on 29/6/2000 and hence the statutory period of one and half years must be held to have commenced from the date of representations sent by the petitioner against the said seniority list i.e. 14/5/01. It is not possible for us to accept this submission. The petitioner’s main grievance is about repatriation order dated 15/4/99 whereby according to him he has been denied seniority in the seniority list of Mumbai Commissionerate. The alleged subsequent denial of seniority is a consequence of initial order dated 15/4/99 which the petitioner ought to have challenged within the period of limitation. Limitation is not saved because of subsequent representations. We, therefore, reject this submission. Same reasoning will be applicable to the petitioner’s challenge to order dated 17/7/02. That challenge also cannot be sustained. 17. About the principles underlying condonation of delay laid down by the Supreme Court in Collector, Land Acquisition’s case (supra) there can obviously be no dispute. In Collector, Land Acquisition’s case the Supreme Court has laid stress on justice 14 oriented approach while dealing with applications for condonation of delay. In N. Balakrishnan’s case the High Court had in its revisional jurisdiction interfered with the trial court’s order condoning delay. The Supreme Court disapproved of the interference and observed that objection of fixing time limit is not to destroy rights. The Supreme Court further observed that length of delay is no matter, acceptability of explanation is the only criteria. 18. We have examined the present case in the light of the above judgments and, we are of the opinion that they do not help the petitioner. In this case the only explanation given by the petitioner is that he was waiting for reply of the respondents. He was awaiting decision being taken on his representations. This explanation is no explanation. The petitioner could not have indefinitely waited for reply. He has been totally negligent. In fact he accepted the impugned order dated 15/4/99 and joined the new post. We are, therefore, of the opinion that the petitioner has not made out any case for interference with the impugned order. 15 19. The writ petition is, therefore, dismissed. JUDGE JUDGE IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 4913 OF 2006 DATE ON WHICH THE JUDGMENT IS RESERVED: 11TH FEBRUARY, 2008 DATE ON WHICH THE JUDGMENT IS PRONOUNCED:____FEBRUARY, 2008 Submitted for approval. 16 THE HON’BLE (SMT.) JUSTICE RANJANA DESAI: THE HON’BLE (SMT.) JUSTICE R. S. DALVI: 1. Whether Reporters of Local Papers ) be allowed to see the Judgment? ) 2. To be referred to the Reporters or) not? ) 3. Whether Their Lordships wish to ) see the fair copy of the Judgment?) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India,1950 or any ) Order made thereunder? ) 5. Whether it is to be circulated to ) the Civil Judges? ) 6. Whether the case involves an impor) tant question of law and whether ) a copy of the judgment should be ) sent to Nagpur, Aurangabad and Goa) Offices? )