Scrutiny by the Tribunal at the time of Admission

 

     Scrutiny by the Tribunal at the time of Admission

          Section 4 (3) of U.P. Public Services (Tribunal) Act, 1976 cast a duty on the Tribunal to firstly satisfy itself about the fact, at the time of Admission of a Claim Petition that such petition is fit for adjudication or trial by it and where the Tribunal is not so satisfied it shall summarily reject the reference after recording reasons. It means that the satisfaction of the Tribunal about the genuineness of a Claim Petition is a condition precedent for admitting the same for adjudication and for that the Tribunal is under legal duty to make such an inquiry as it may deem necessary. No methodology, manner or mode has been provided under the Act for making such inquiry. The Tribunal may either ask the Petitioner to clarity its pleadings contained in the Claim Petition by filing Supplementary Affidavit or by filing some necessary and material documents in support of the averments. Before admitting the Claim Petition, the Tribunal may invite objections from the Opposite Party i.e. State or other Authority against whom the reference petition has been filed, on the paint of Admission If after considering the objection or supplementary affidavit filed by the Petitioner the Tribunal is satisfied that the Claim Petition is fit for adjudication or trial by it and it has been filed after availing all the statutory remedies available to him, it may admit the Claim Petition

          There is no difficulty in admitting those Claim Petitions straightway where final order has been passed after exhausting all the statutory remedies available under the relevant service Rules and the petition has been filed within one year from the date of communication of final order to the Petitioner.

          The difficulty also does not arise in admitting those Claim Petitions where the appeal, revision, representation or review as the case may be has been filed by the Petitioner as an statutory remedy and in accordance with law, before the Competent Authority empowered to dispose of the same and is pending after due receipt and has not been disposed off within six months by the Competent Authority and the aggrieved person has given one month notice, requesting the authority to dispose off the same and the period of notice has also expired and still no final order on such validly and legally filed appeal revision representation or review has been passed and the Claim Petition has been filed.

          Likewise, where the Claim Petition has been filed with regard to a recurring cause of action it is liable to be admitted.

          Problem with regard to exercise of discretion at the time of admission of a Claim Petition arises when an attempt is made to present the Claim Petition, containing the averments in such a manner that goes to establish that the petition has been filed within time limit as prescribed under Section 5 and after complying Section 4 (5) of the Act of 1976.

          In other words the case is presented in such a manner that a time barred Claim Petition appear to have been filed within time. Sometime averments are made in the Claim Petition with a view to establish that the Petitioner should be "deemed to have availed of all the remedies available to him as provided in proviso of 4(6) of Act of 1976.

          In certain case the Tribunal sometimes admit a reference Petition subject to point of limitation and decides the case on merits after exchange of pleadings and sometimes without addressing the point of limitation.

          In one case the petitioner Vivekanand Singh Filed a claim petition 922/2013 wherein, he alleged that he had moved a review application on 6.2.2012 against the original order dated 28.12.2011 passed on behalf of the Governor which was pending on the date of filing of claim petition i.e. in July 2013. The Tribunal admitted the claim petition treating it within limitation on the ground of pendency of review petition. The averment made in the claim petition's were denied in the CA/WS but it was not rebutted by the petitioner and the point of limitation was decided against the state and the claim petition was allowed. The state government filed a writ petition No. 444/2015 State of U.P. through Principle secretary Awas Evam Sahkari Niyojan and Anr. Vs. Vivekanand Singh and Another. The Hon'ble High Court after discussing the entire relevant provisions of the Tribunal's Act 1976 with regard to filing of reference claim petition and law of limitation applicable to reference petition filed under section 4, examined the matter in detail and came to the conclusion that the Tribunal Admitted the claim petition treating it within limitation on the ground that a review application dated 6.2.2012 was allegedly pending and since the averments made in the claim petition were specifically denied by the state and different authorities in Para 14 of their written statement based on their records and the statement were not rebutted by the petitioner either by summoning of the relevant documents including the "Dak Register", if any, from the office of the concerned department or to examined any witness to prove his assertion. The court found that the petitioner did not file any proof of such application having been sent by registered post and once the registry receipt was denied by the department the onus shifted on the claimant to prove his assertions. Following Paras of the Hon'ble High court requires special mention which is reproduced as under:

          In this context it is relevant to mention that, subject to the provisions of sub-Section (1) of Section 5, the provisions of Section 5(5) of the Act of 1976 empower the Tribunal with the same powers as    are vested in Civil Court under the Code of Civil Procedure 1980 while trying a suit for the purpose of holding any inquiry under the said Act in respect to matters, inter alia, requiring discovery and production of documents; summoning  and enforcing the attendance of any person and examining him on oath; issuing commissions for the examination of  witnesses and documents etc. No doubt, under sub-Section (1) of Section 5 the Tribunal is not bound by the procedure laid down in the Code of Civil Procedure 1908 or the Rules of Evidence contained in Indian Evidence Act, 1872 but is to be guided by the principles of Natural Justice, but, in view of Sub Section (5) it does have the requisite powers for production of documents, summoning of persons and examining them on oath. The claimant could have very well taken recourse to the said provision for proving the assertions made in Para 4.12 of the claim petition, but he did not do so.

          The submission of the review application on 6.2.2012 was not proved by the claimant The original act of submission of the review application dated 6.2.2012 itself having not been proved, the subsequent legal notice dated 13.6.2013 is rendered inconsequential and meaningless.

          Once the averments made in Para 4.12 of the claim petition were not proved, the point of limitation was to be calculated from the date of original order dated 28.12.2011 and, the benefit of sub-section 5(1)(b)(ii) read with Section 4(5) and (5) and (6) as also paragraph, 20 of the judgment of the Supreme Court in S.S. Rathore's case (Supra) was not available to the claimant. The original order having been passed on 28.12.2011, no statutory remedy having been preferred against it, the period of limitation for filing a claim petition under the Act, if at all maintainable in   view   of section 4(5) of the Act, was one year therefore, it was barred by limitation when it was filed in July, 2013.

          The court also observed that the point of limitation goes to the root of the matter and it involves a jurisdictional issue. The limitation Act has been made applicable to the Tribunal, as it was applicable to a suit, thus, Section 5 thereof has no application to a reference filed under Section 4 of the Act. If a claim petition is barred by limitation, then irrespective of its merits, the Tribunal has no other option but to decline to entertain it. It does not have the power to condone the delay. After examining all the facts the Hon'ble High Court allowed the writ petition and quashed the judgment of the Tribunal passed in claim petition No. 922/2013 Vivekananda Singh Versus State of U.P. The said judgment of the Hon'ble Allahabad High Court has made it clear that the Tribunal, while admitting any claim petition must satisfy itself whether the petitioner has come with "Clean" hands or whether the petitioner has merely made out a case for bringing his petition within time and the point of limitation should be decided first and it should not be left open for a future period.

          Another aspect of provision relating to limitation before the Tribunal which needs to be taken into consideration is the Rule 11, 13 & 14 which provide for Appeal, Revision and Review under the 1999 Rules. Rule 11 provides for appeal against the order of punishment, minor or major, before the next higher authority which reads as follows:

Appeal: (1) Except the orders passed under these rules by the Governor, the Government Servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary  Authority.

(2) The appeal shall be addressed and submitted to the Appellate Authority. A Government Servant preferring an appeal shall do so in his  own name. The appeal shall contain all material statements and argument relied upon by the appellant.

(3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily   dismissed.

(4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily.

          It is clear from the reading of the provision carefully that this is a remedy available to the public servant as a matter of right and the Appellate Authority is obliged to decide it as per mandate of the Rules and standing administrative instructions, if any, in this regard.

           It need not be emphasised that the consideration of appeal is inclusive of re-  appreciation, reappraisal of the merit based on facts and circumstances of the case vesting the power to confirm, modifying or reverse the impugned order and even beyond that in government. The word used in Rule 13 is "may" instead of "shall" used in Rule 11 which leaves little scope for interpretation as to which one is remedy, available as a matter of right.

          Besides, reading of Rule-11 makes it further clear that no remedy of appeal is available against an order passed by the Governor. This becomes clear by the Phraseology used in opening lines of section 11 of the rules of 1999 namely "Excepted the orders passed under these rules by the Governor, the Government servant shall be entitled to file appeal." It means that the right of appeal as a statutory remedy is available to those public servants whose appointing authority is not governor. In other words if the order has been passed by the principal secretary or secretary of the government on behalf of governor then the claim petition should be filed by such public servant within one year from the date of communication of the final order. Likewise section 13 of the rules of 1999 which provides for revision is not available as a statutory remedy because under this section the government may of its own motion or on the representation of concerned public servant call for the record of any case decided by an authority subordinate to it in exercise of any power conferred on such authority by these rules. Rule 13 reads as follows:-

Revision-13. Notwithstanding any thing contained in these rules, the Government may of its own motion or on the representation of concerned Government servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules; and

(a) confirm, modify or reverse the order passed by such authority, or

(b) direct that a further inquiry be held in the case, or

(c) reduce or enhance the penalty imposed by the order; or

(d) make such other order in the case as it may deem fit;

          Similarly Rule 14 of the Rules 1999 provide for review by the Governor on his own motion or on the representation of the concerned Government Servant if it is brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing of the impugned order or any material error of law occurred which has the effect of changing the nature of the case. Rule 14 reads as follows:

          Rule 14 Review: - The Governor may at any time, either on his own motion or on the representation of the concerned Government servant, review any order passed by him under these rules, if it has been brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing the impugned order or any material error of law occurred which has the effect of changing the nature of the case.

          As is evident from the above, the word "may" again has been used here, so, it cannot be taken as a remedy available against the punishment or appellate order. In fact it is an enabling provision to address the exigencies envisaged in the said two rules. As these are enabling discretionary powers vested in the Government and the Governor respectively, these authorities cannot be coerced or treated to be under legal obligation to entertain such a representation, let alone interfere or intervene on their own initiative. Therefore, simply filing of a revision or review and its pendency before the Government or Governor, as the case may be, does not entitle the delinquent any benefit while computing the period of limitation under the Act. In other words the provisions under Rule-13 and 14 are not to be treated as continuance of the original departmental proceedings. If that were so, not preferring a revision or review, as the case may be, would very much be treated as if the remedy provided have not been fully exhausted and the petition in such cases would be taken as premature.

          It is further clarified that the indulgence of the Government or Governor under Rule 13 or 14 respectively, thus, will provide a fresh cause of action to the delinquent, in case he has chosen to invoke these discretionary provisions to assail the outcome on merit.

          The provision of limitation cannot be allowed to be circumvented by invoking these rules as a cover-up against the delays in approaching the Tribunal within the time frame provided under the Act 1976 itself. Something which is not permitted by law directly cannot be permitted indirectly.