JUDGMENT
Pradeep Kant and K.S. Rakhra, JJ.
1. Heard learned Counsel for the petitioner Sri S.K. Tewari and Sri Navneet Agarwal for the State.
2. This is part-heard matter of this Bench since before and, therefore, it has been listed today before this Bench for hearing.
3. The petitioner, who was Lekhpal in Tehsil Amethi, district Sultanpur, was dismissed from service after departmental inquiry vide order dated 15.6.1987. The petitioner preferred statutory appeal on 30.6.1987. The appeal, according to the petitioner, remained pending for considerable period and despite repeated reminders being made, the appellate authority (District Magistrate) did not pass any order on the appeal. Feeling aggrieved the petitioner preferred a claim petition under Section 4 of the U.P. Public Services (Tribunal) Act, 1976 (hereinafter called ‘the Act’) in the year 2000. In the claim petition, the petitioner averred that he filed the statutory appeal on 30.6.1987, which was registered in the office of the District Magistrate on 2.7.1987 but the same has yet not been decided.
4. It appears that the State took a defence that the claim petition was barred by limitation, which was one year at the relevant time. The Tribunal vide order dated 14.3.2002, dismissed the claim petition at the admission stage.
5. The Tribunal came to the conclusion that the dismissal order was dated 15.6.1987 ; the appeal was filed on 30.6.1987 ; reminders were sent up to 21.8.2000 and legal notice of 30 days was given on 30.6.2000 and, according to the petitioner, all the aforesaid matters are still pending for which there is no response by appellate authority. The State, however, denied the contentions/allegations. The Tribunal rejected the claim petition holding that even if the petitioner has filed the appeal on 30.6.1987, the limitation expired after twelve months while the petitioner’s alleged reminder dated 21.8.2000 itself is after thirteen years, The case law, cited by the petitioner, Mahendra Pratap Rai v. State of U.P. and Ors. 1986 (4) LCD 209, was not even properly considered by the Tribunal.
6. The reasoning given by the Tribunal is that under Section 4 of the Act, period of limitation of filing a claim petition cannot be extended under Section 5 of Limitation Act as the claim petition is like a civil suit for which the period of limitation prescribed under Section 5 of the U.P. Public Services (Tribunal) Act is one year and in computing the period of limitation the period spent in awaiting the result of representation or appeal or revision in accordance with rules shall be excluded.
7. Relying on Section 4(6) of the U.P. State Public Services Tribunal (Amendment) Act, 2000, the Tribunal held that where no final order is made on appeal or representation within six months, a written notice by registered post is to be sent to the authority concerned and if the order is not passed within one month of service of such notice, the public servant shall be deemed to have availed of all the departmental remedies available to him and then he can come to the Tribunal for reference under Section 4(1) of the Act, even though the appeal or revision has not been decided.
8. The Tribunal has observed that in case of delay there should be satisfactory explanation for condoning the delay. The petitioner’s claim petition was rejected after holding that according to the petitioner, reminders were sent continuously for which no proof has been filed ; the claim petition has been filed highly time barred and the first reminder dated 21.8.2000 was after a gap of 13 years from the date of filing the appeal. In regard to the case law Mahendra Pratap Rai v. State of U.P. and Ors. 1986 (4) LCD 209, the Tribunal said that in the aforesaid case the Tribunal had dismissed the claim petition on the ground that the appeals were filed beyond time, i.e., after about ten months whereas in the instant case the petitioner’s contention is that the appeal was filed within time. But then he cannot be permitted to just file an appeal and then forget about it for indefinite period.
9. Though the Tribunal considered the case law but gave an unsatisfactory reasoning for its non-applicability as it appears from the finding given by the Tribunal. The ratio of the aforesaid Judgment could not be read against the petitioner simply because in the present case the petitioner has filed the appeal within time, as against in the case law cited the appeal was filed beyond limitation.
10. For computing the period of limitation for filing a claim petition the Tribunal has to see the date when the cause of action first accrued and all such subsequent dates when the cause of action again accrued. This is simply for computing the period of limitation, i.e., whether the petition is within time or not. Section 5 of the Act prescribes period of limitation and also the manner or procedure when an employee could approach the Tribunal without actually exhausting the departmental remedy.
11. Sub-section (5) of Section 4 of the Act provides that the Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievance. Subsection (6) of Section 4 of the Act says that for the purposes of Sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance.
12. Proviso to Sub-section (6) of Section 4 of the Act says that where no final order is made by the State Government, authority, officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.
13. Aforesaid Sub-section (5) of Section 4 of the Act requires exhaustion of all departmental remedies available to public servant before approaching the Tribunal and for giving effect to the said provision the Tribunal is supposed to examine, for entertaining the claim petition, whether the employee has availed of or not all available departmental remedies. Even then discretion lies with the Tribunal to entertain the petition though public servant might have not exhausted departmental remedies. It is clear that Sub-section (5) of Section 4 of the Act puts restriction upon the Tribunal by saying that it shall not ‘ordinarily’ admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances.
14. An employee cannot be prohibited from approaching the Court/Tribunal for any indefinite period because of the administrative or otherwise inaction on the part of authority/officer concerned in deciding the statutory appeal or revision, and, therefore, proviso to Sub-section (6) of Section 4 was added. Thus, proviso to Sub-section (6) of Section 4 of the Act allows to entertain the claim petition, where no final order is made by the State Government, authority, officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, where the public servant, by a written notice by registered post, requires such competent authority to pass the order and if the order is not passed within one month of the service of such notice also by the appointing authority, the employee gets a liberty to approach the Tribunal, with the legal presumption that he had’ availed of all departmental remedies in terms of Sub-section (5) of Section 4 of the Act, and, therefore, his claim petition can be entertained.
15. This proviso to Sub-section (6) of Section 4 would not be relevant for extending the period of limitation as the proviso has been made for giving liberty to an employee/public servant to approach the service Tribunal even without awaiting for a decision on the statutory appeal or representation and thus it removes the bar as imposed by Sub-section (5) of Section 4 of the Act.
16. The period of limitation would start right from the date when the cause of action first accrued, i.e., the date of order of dismissal and it would again accrue when statutory appeal or representation, under the rules, are decided. If the appeal or representation are decided after two, three, four and five years, etc. the limitation for filing the claim petition shall be computed from the date of passing of the order in such appeal or representation. It cannot be said that if the appeal or revision has been decided after one year or more, the claim petition will stand barred by limitation, merely because the claimant did not avail the liberty of coming to the Tribunal in terms of proviso to Sub-section (4) of Section 6.
17. Sub-section (5) and proviso to Sub-section (6) of Section 4 of the Act do not control the provisions of Section 5(1)(b) (i) and (ii) of the Act. Sub-clause (b)(i) and (ii) of Section 5(1) of the Act says that the provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under Section 4 of the Act as if a reference were a suit filed in civil court so, however, that : (i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year and (ii) in computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal revision or petition, as the case may be shall be excluded.
18. The aforesaid provision provides that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 of the Act may be made within the period prescribed by that Act, or within one year next after the commencement of the U.P. Public Services (Tribunals) (Amendment) Act, 1985 whichever period expires earlier. The aforesaid provisions make it clear that while computing the period of limitation, the period of limitation starts from the date on which the public servant makes a representation or prefers an appeal, revision or any other petition and comes to an end when he acquires knowledge of the final order passed. All such period thus has to be excluded while computing limitation. In case final order is passed after one year or two years or so on and so forth, the limitation would be counted from the date of passing of the original order and by excluding the entire period commencing from the date of making the appeal or representation, if provided under rules, and the date when the final orders passed on such appeal or representation come within his knowledge.
19. In the instant case, the Tribunal was swayed by the provisions of Sub-section (5) of Section 4 and proviso to Sub-section (6) of Section 4 where the right to approach the Tribunal has been given after availing all the remedies available to a public servant under the relevant service rules and the circumstances and the procedure when a public servant can approach the Tribunal, during the pendency of the appeal or revision.
20. In the absence of a final order having been passed by the appellate authority it cannot be said that the claim petition would be barred by limitation if the claimant does not avail the liberty given in the provision aforesaid. If statutory appeals or representations are kept pending for years together and no order is passed within six months from the date on which such appeal was preferred or representation was made, the Tribunal ought not to reject the claim petition, on the ground that the public servant should have given a written notice by registered post, requiring such competent authority to pass the order within 30 days, and thus has not filed the claim petition within the limitation prescribed.
21. In a case wherein the appeal or revision remains unattended for any period beyond six months or one year, the only requirement could be that such a claimant gives the required notice as given in proviso to Sub-section (6) of Section 4 and thereafter to approach the Tribunal whether thereafter, the appeal or revision is decided or not, but this requirement of giving notice in a matter which has been kept pending for years together by the appellate authority, if is not complied with by the complainant, the Tribunal may not dismiss the claim petition summarily but may give an opportunity to the claimant to give a notice as required within a given time and defer the hearing for such period or the Tribunal, or as per the facts of the case, may entertain the petition even without any such notice being given by the public servant as the rule of exhaustion of departmental remedies is itself discretionary in terms of subsection (5) of Section 4, wherein it has been said that ‘ordinarily’ the Tribunal would not entertain the petition, unless departmental remedy stands exhausted.
22. Failure on the part of the appellate authority or the authority who is to decide the representation, in discharging their statutory legal obligations cannot defeat the right of a claimant to vindicate his rights by approaching the Tribunal nor can be frustrated.
23. In this case plea has been taken by the State that no such appeal was ever filed before the District Magistrate (appellate authority). This submission is absolutely vague and in fact there is no denial of the averment of the petitioner in the petition that he had filed the appeal within time which was registered on 2.7.1987. Before us the petitioner produced photostat copy of the receipt showing that the appeal was filed. We have not taken it on the record, as this matter requires to be considered by the Tribunal.
24. In view of the relevant provisions of the Act, we hold that the Tribunal misguided itself in rejecting the claim petition at the admission stage, treating it to be barred by limitation and, therefore, the matter is required to be reconsidered by the Tribunal.
25. We, therefore, allow the writ petition, set aside the order dated 14.3.2002 and remand the matter to the Tribunal to decide the controversy in question. Since the matter is very old we direct that the State shall file counter-affidavit within six weeks from today. Let the matter be listed on 7.11.2005, for being considered by the Tribunal expeditiously say preferably within maximum period of six months. The parties shall cooperate in early disposal of the claim petition before the Tribunal.
