it2025_00909 — Delay of thirteen years in challenging order of dismissal from service cannot be ignored even if there be continuous cause of action and any sympathy towards the Appellant would be totally misplaced

Delay of thirteen years in challenging order of dismissal from service cannot be ignored even if there be continuous cause of action and any sympathy towards the Appellant would be totally misplaced — The chunk provided pertains to the Appellant's challenge against an order passed by the Learned Tribunal, which was allowed by the High Court. The senior counsel for the Appellant submitted that retr... — Facts: The Appellant initially appointed as Bearer on 9-2-1972 was promoted to the post of Steward on 15-10-1987. He was elected as an executive member of the Co-operative Society known as AIIMS Co-operative, Thrift and Credit Society run by the Respondent, and became its Treasurer. In March, 1991, allegedly for causing loss to the tune of ₹ 5 lakhs to the Co-operative Society by forging the signatures of its members, FIR No. 91 of 1991 under Sections 406/420/468/471/477-A/120-B of the Penal Code, 1860 ("IPC") (hereinafter referred to as "the first FIR"), was registered against the Appellant. As the Appellant was arrested on 5-6-1991 and was in custody till 12-6-1991 by an Order, dated 7-8-1991, he was placed under deemed suspension in terms of Rule 10(2) of the CCS (CCA) Rules and subsistence allowance was paid to him. While the Appellant was under suspension, another FIR No. 868 of 1991 under Sections 356/379/411 IPC (hereinafter referred to as "the second FIR"), was registered against the Appellant allegedly for snatching a bag containing cash, etc. Criminal proceedings commenced in pursuance of the second FIR. By a judgment and Order, dated 15-9-1993, the Appellant was convicted by the Metropolitan Magistrate, Delhi under Section 379 of the Penal Code. As the second FIR was registered against the Appellant while he was under suspension it has been contended by the Respondents that they had no knowledge of the second FIR or of the judgment and Order, dated 15-9-1993, of conviction of the Appellant under Section 379 IPC, for about 7 years. On 16-9-1993, the Respondent had been released on probation of good conduct for a period of one year, on condition of furnishing a personal bond and one surety of ₹ 5,000. These orders were apparently concealed from the Respondent. In view of the fact that the fact of conviction of the Appellant was known to the Respondent only in 2000, the Respondent removed the Appellant from service by a Memorandum, dated 6-1-2000 issued under Rule 19

(i) of the CCS (CCA) Rules with retrospective effect from the date of conviction, i.e. 16-9-1993 and he was directed to refund the amount of subsistence allowance drawn by him from that date. The Appellant has apparently been given an opportunity of hearing. The Memorandum, dated 6-1-2000 records that the Appellant had submitted a written explanation which had duly been considered before removing the Appellant from the service of the Respondent, from the date of his conviction. Aggrieved by the said decision, the Appellant appealed to the President of the Respondent, to which there was no response. The Respondent claims that the appeal was rejected in the same year, i.e., in 2000. However, no order of rejection is traceable. The position of the first FIR over a decade after the Appellant was removed from service was that the Appellant entered into a settlement with the Respondent, in terms whereof he compensated the Respondent for the loss caused by him to the Co-operative Society. As a consequence of the compromise, the first FIR, that is, FIR No. 91 of 1991 was quashed by the High Court of Delhi on 2-11-2012. Thereafter, the Appellant made a representation, demanding pension, gratuity and provident fund with interest from the Respondent. This is not in dispute. The Appellant has also alleged that he made a request to the Respondent for withdrawal and/or cancellation of the Memorandum, dated 6-1-2000, to which there was no response. On or about 24-7-2013, that is, over thirteen years after the issuance of the Memorandum, dated 6-1-2000, removing the Appellant from service of the Respondent, with retrospective effect from the date of his conviction, the Appellant filed Original Application No. 3381 of 2013 before the Learned Tribunal, challenging the Memorandum, dated 6-1-2000. According to the Appellant, limitation period is not applicable in this case as the challenge is against a per se illegal order for which there is no limitation period. Along with O.A. No. 3381 of 2013, the Appellant had filed an application seeking condonation of delay and an affidavit stating that the application for condonation of delay had been filed in exercise of abundant caution and to comply with procedural requirements. By an Order, dated 29-2-2016, the Learned Tribunal set aside the Memorandum, dated 6-1-2000 and granted all the benefits to the Appellant. The Learned Tribunal held : "11. Having considered the matter, we are of the firm view that the OA was filed within the period of limitation. It is not a matter of dispute that the punishing authority has retrospectively removed the Applicant from service with effect from 16-9-1993, that being the date of his conviction in a criminal case by means of impugned Order, dated 6-1-2000. Such orders are illegal, void ab initio and can be challenged at any time. The Hon'ble Apex Court in a celebrated judgment in State of M.P. v. Syed Qamarali, which was subsequently followed in many decisions, has authoritatively ruled that the order of dismissal having been made in breach of mandatory provision of the rules, such order of dismissal had, therefore, no legal existence and it was not necessary for the Respondents to have the order set aside by the court. The defence of limitation which was based only on the contention that the order has to be set aside by a court before it became invalid must, therefore, be rejected. 12. Not only that, the Applicant claimed that he has filed the appeal on 23-2-2000 (Annexure A-5 Colly) to the Appellate authority which was received by the office of the President, AIIMS, on 25-2-2000. Subsequently, he moved a representation, dated 21-1-2013 (Annexure A-6 Colly) claiming all the consequential benefits by ignoring the impugned removal order. 13. The contesting Respondents have neither specifically denied nor produced any cogent record even to indicate that Applicant has not filed any appeal (Annexure A-5 Colly) / representation (Annexure A-6 Colly) or the same were decided by the appellate authority. Moreover, the Applicant has claimed all consequential benefits along with amount of pension and other emoluments along with interest, which to our mind, is recurring and continuing cause of action. 14. Thus, seen from any angle, it cannot possibly be said that the OA filed by the Applicant is barred by limitation as contrary urged on behalf of Respondents. Hence, it is held that the main OA filed by the Applicant is within the prescribed period of limitation and the crux of law laid down in Syed Qamarali is fully applicable in the present case. 15. Once it is held that the main OA has been filed within the period of limitation, learned counsel for Applicant then contended with some amount of vehemence that there is no provision of law / rules that the Applicant can retrospectively be removed from his service with effect from 16-9-1993, the date of his conviction, that too, simply on the ground of his conviction in a criminal case by the impugned Order, dated 6-1-2000 by the competent authority." Aggrieved by the Order, dated 29-2-2016 passed by the Learned Tribunal, the Respondent filed Writ Petition No. 5977 of 2016, which has been allowed by the High Court of Delhi by the judgment and Order, dated 24-7-2017 impugned in this appeal. Senior Counsel for the Appellant submitted the following:- Retrospective removal from service cannot be passed. Rule 19 postulates satisfaction by the disciplinary authority, for reasons to be recorded in writing, that the conduct of the employee, which had led to his conviction in the criminal trial, was such that the punishment should be imposed. This is absent in this case. Being a continuous cause of action and order being per se illegal, Section 21 (3) of the A.T. Act has no application in this case. The Tribunal's order allowing the OA gets support from Union of India v. Tarsem Singh wherein, the Apex Court has held "… Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury" One exception is where the delay affects the interest of the third parties, which is not in this case. The Appellant is entitled to pension and other terminal benefits by virtue of his services for 28 years in all. Order for refund of the subsistence allowance made by the Respondents is again illegal. The Apex Court first considered as to whether the case was barred by limitation and whether Section 21 (3) applies to the facts of the case. It has held that finding of the Tribunal that the Original Application had been filed within limitation, as argued by the Appellant is patently erroneous and has not been accepted by High Court. Successive representation would not save limitation and certainly does not justify delay of about thirteen years in approaching the Tribunal. The Apex Court has also taken into account the judgment in the case of S.S. Rathore v. State of M.P. wherein interalia it has been held, "Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation." In addition to the above, in respect of the order of dismissal, dated 6-1-2000 under Rule 19

(i) of the CCS (CCA) Rules, 1965 which was challenged in 2013 after almost 13 years, the Apex Court has stated, "Even assuming that the appeal was never decided, the cause of action for filing an application before the Tribunal would have arisen on expiry of six months from the date of filing the appeal, in view of Section 20 (2)

(b) of the Administrative Tribunals Act, 1985."