SCA/29938/2007 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 29938 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH sd/- AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI sd/- ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ========================================= KALIDAS BACHUBHAI - Petitioner(s) Versus UNION OF INDIA THRO' GENERAL MANAGER & 2 - Respondent(s) ========================================= Appearance : MR MS TRIVEDI for Petitioner(s) : 1,MS PRANJAL M TRIVEDI for Petitioner(s) : 1, None for Respondent(s) : 1 - 3. ========================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 31/01/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI) SCA/29938/2007 2/5 JUDGMENT RULE. Heard learned advocate Mr Trivedi for the petitioner. 2. Present is the petition filed challenging the order passed by the Hon'ble Central Administrative Tribunal, Ahmedabad Bench in Original Application No.85 of 2005 dated 21.12.2006, whereby the Hon'ble Tribunal is pleased to dismiss the Original Application with costs. 3. Original Application No.85 of 2005 was filed, which was the second round of litigation, challenging the inaction of the respondents in regularizing the intervening period from October 1991 to January 1994, which had resulted into non-grant of consequential benefits. A direction was sought for to regularize the said period as spent on duty and to pay arrears with 18% interest. 4. In earlier round of litigation in Original Application No.403 of 1993, the petitioner was medically examined pursuant to interim orders of the Hon'ble Tribunal dated 16.12.1993 and an assurance was also given that the petitioner will be allowed to resume duty. The relevant part of the order of the Hon'ble Tribunal in Original Application No.403 of 1993 is quoted, the same is reproduced for the ready perusal. “Mr. Mukesh Patel states that, so far as the question of the nature of the intervening period between October 1991 till the date, the applicant is allowed to resume duty is concerned, the applicant will make a representation to the concerned authority within seven days hereof. If the applicant makes such a representation, the concerned authority is directed to take decision thereon within six weeks from the date of the receipt of the representation by him. While deciding the representation, we expect the concerned authority to bear in mind the fact that the applicant was in service since 1980. If the decision taken by the authority on the representation of the applicant aggrieves him, the applicant will be at liberty to file a fresh O.A. challenging the same.” SCA/29938/2007 3/5 JUDGMENT 5. The case of the petitioner is that pursuant to the order of the Hon'ble Tribunal, the petitioner submitted a representation. A copy of which was produced at Annexure-A to the Original Application. It is the case of the petitioner that the representation dated 24.12.2004 was submitted, but then, the Health Inspector one Mr.T.R.Sharma demanded a bribe for which on a complaint by the petitioner a trap was arranged and on account of this action of the petitioner, the petitioner's claim was not proceeded with. The respondents have raised preliminary objection regarding limitation. It is the say of the respondents that the representation forwarded by the petitioner was forwarded by the Station Superintendent, Ahmedabad by letter dated 18.02.1994 and that the said representation was decided vide order dated 31.05.1994. 6. It is the case of the petitioner that he came to know about this order dated 31.05.1994 only after receiving the reply of the respondents. The petitioner, therefore, moved MA No.598 of 2005 to challenge the said order dated 31.05.1994. That MA was allowed after hearing both the parties by order dated 28.07.2006, but as the petitioner did not carry out that amendment, the said amendment was declined by the Hon'ble Tribunal by order dated 14.08.2006. After taking into consideration the aforesaid facts, the Hon'ble Tribunal passed the order under challenge i.e. dismissing the Original Application with costs. 7. Mr Trivedi, the learned advocate for the petitioner, strenuously submitted that this is a case of a 'Safai Kamdar' in Railway and the case of the petitioner is that he did not receive order dated 31.05.1994, that the petitioner learnt about the order SCA/29938/2007 4/5 JUDGMENT only when the respondents filed the reply in the present original application. It is also submitted by the learned advocate for petitioner that petitioner could have filed an application for condonation of delay caused in challenging the order dated 31.05.1994, after he carries out the amendment, but amendment could not be carried out as the papers of MA No.598 of 2005 had not reached in the office. He submitted that before that the Original Application was taken up for consideration by the Hon'ble Tribunal and it declined the amendment by saying that though the amendment was granted on 28.07.2006, the same is not carried out hence, the same is declined. The learned advocate for the petitioner submitted that this has caused serious prejudice to the petitioner, who is a Class-IV employee – a 'Safaiwala'. He submitted that all what is going to be achieved by the applicant – petitioner is 'temporary status', if he succeeds in the matter. The learned advocate for the applicant – petitioner submitted that today the fate of the applicant – petitioner is 'sealed' without his matter being considered on merits. He submitted that therefore, the matter is required to be remitted to the Hon'ble Tribunal for its consideration on merits, so that the interest of justice is served. 8. Taking into consideration the aforesaid facts and without going into the question as to whether the learned advocate can be said to be guilty of inaction in not carrying out the amendment which was allowed vide order dated 28.07.2006 before 14.08.2006 on the day on which it was declined, this Court is of the opinion that interest of justice will be served if the order dated 21.12.2006 is quashed and set aside and the matter is remitted to the Hon'ble Tribunal for its consideration on merits. SCA/29938/2007 5/5 JUDGMENT 9. In the result, the order dated 21.12.2006 is hereby quashed and set aside. The matter is remitted back to the Hon'ble Tribunal for its consideration on the merits of the matter. Rule is made absolute. sd/- [M.S. SHAH, J.] sd/- [RAVI R. TRIPATHI, J.] mrpandya*