TaxTMI 
TaxTMI 
2023 (8) TMI 1633
X X X X Extracts X X X X
X X X X Extracts X X X X
....1/2005, Surendra Kumar Vs. Union of India and others on merits." B. FACTUAL MATRIX (2) In the year 2001, the petitioner was engaged as daily wage casual labour under the Joint Commissioner, Income Tax, Faizabad and continued to work as such till his services was terminated orally w.e.f. 02.09.2005. (3) The aforesaid oral order of termination w.e.f. 02.09.2005 was challenged by the petitioner by preferring Original Application No. 561 of 2005 before the Central Administrative Tribunal, Lucknow (hereinafter referred to as 'the Tribunal"). The Tribunal, vide judgment and order dated 30.09.2011, dismissed the aforesaid original application. (4) Feeling aggrieved by the judgment and order of the Tribunal dated 30.09.2011, the petitioner preferred writ petition No. 1551 (S/B) of 2013 before this Court. A Co-ordinate Bench of this Court, while recording the submission of the petitioner that in an identical matter, a review application was filed before the Tribunal and the Tribunal has proceeded to allow the review application, disposed of the writ petition with liberty to the petitioner to file review application before the Tribunal, vide judgment and order dated 21.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... entertained a bunch of review application involving identical issue, the leading being Review Application No. 332/00028/2014 and vide common judgment and order dated 24.12.2014, the learned Tribunal was pleased to allow the bunch of review applications by reviewing/modifying the order sought to be reviewed in the said bunch of review application and resultantly, the learned Tribunal directed the respondents to consider the case of the applicants for regularization in accordance with law within six months. According to him, on coming to know the aforesaid order dated 24.12.2014 (supra), the petitioner has drawn the attention of the same to a Co-ordinate Bench of this Court in Writ Petition No. 1551 (S/B) of 2013, which had ceased of the said matter. (9) Apparently, the said Co-ordinate Bench of this Court, appreciating the submission of the petitioner in this regard, disposed of the said writ petition by granting liberty to the petitioner to file a review application before the Tribunal by means of an order dated 21.01.2016. Thereafter, the petitioner has sought legal opinion and prepared review application No. 20 of 2016 and filed the same before the learned Trib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e review application on the ground that the Tribunal has no power to condone the delay, is liable to be set-aside and the matter be remitted to the learned Tribunal for its adjudication on merits. (12) Per contra, learned Counsel representing the Union of India has opposed the aforesaid submissions of the learned counsel for the petitioner and has argued that Rule 17 (1) of the Rules, 1987 indicated of the intent to make it mandatory that no application for review can be entertained unless it is filed within thirty days from the date of receipt of a copy of the order sought to be reviewed. (13) According to the learned Counsel for the respondents, no other explanation or advantages can be made to the aforesaid Rules, 1987 as Rule 17 (1) of Rules, 1987 prohibited entertainment of any application for review beyond thirty days. He submits that admittedly, the petitioner has filed the Review Application No. 20 of 2016 after thirty days as provided under Rule 17 (1) of the Rules, 1987, hence the learned Tribunal has rightly dismissed the review application as not maintainable by means of the impugned order. Thus, the instant writ petition is liable to be dismissed. D. ANAL....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns of the Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Section 21 of the Act, 1985 deals with limitation in filing the original application. It would be profitable to extract section 21 of the Act, which interalia states as under: "21. Limitation. - (1) A Tribunal shall not admit an application,- (a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; (b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. (2) Notwithstanding anything contained in subsection (1), where- (a) the grievance in respect of which an application is made had arisen by reason of any order made at ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (e) Xxxx (f) Reviewing its decisions; (g) Xxx (h) Xxxx (i) Any other matter which may be prescribed by the Central Government. (Emphasis Supplied) (21) In view of the above provisions, the power of review vested with an Administrative Tribunal is equated to a Civil Court and, thus, while considering and disposing of any review application, the Administrative Tribunal is to follow the Code of Civil Procedure. Thus, by necessary implications the provisions of review as found under the Civil procedure Code i.e Section 114 and Order XLVII Rule 1 of the Civil Procedure Code came to be incorporated along with the power of review of an Administrative Tribunal. Moreover, the power of the Tribunal to review its judgment has been well explained by the Hon'ble Supreme Court in the case of Ajit Kumar Rath v. State of Orissa : (1999) 9 SCC 596 and Gopalbandhu Biswal Vs Krishna Chandra Mohanty : (1998) 4 SCC 447, wherein the Hon'ble Supreme Court had held review power of a Tribunal to be similar as has been granted to a Civil Court under Section 114 or under Order XLVII Rule 1 of the Civil Procedure Code. In any case, the power of review is not absolu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (24) However, the procedure for filing and consideration of an application for condonation of delay of review application is conspicuously absent from the provisions of the Act, although Section 21 relating to the limitation for filing and consideration of an original application is specifically mentioned in the said Act itself and Section 21 (3) provides for condonation of delay, but similar provision for review is not mentioned in the Administrative Act. (25) Since, the issue engaging the attention of this Court relates to condonation of delay in filing of a review Application and the necessary process and since the limitation thereo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he powers vested with it as a Civil Court under the provisions of Code of Civil Procedure. This Court finds that a residual power to frame rules has been given to the appropriate Government in terms of section 36(3) of the Act, for those matters, which are not mentioned in section 35 of the Act. Since, the issue relating to competency relating to framing of rules is not before this court in the present matter, this court does not wish to express its view on the same and restricts itself to the issue raised in the present petition. (27) Nevertheless, the Administrative Rules came to be framed in 1987 and Rule 17 contains the provisions for application of review in the following words: "17. Application for review- (1) No application for review shall be entertained unless it is filled within thirty days from the date of receipt of copy of the order sought to be reviewed. (2) A review application shall ordinarily be heard by the same Bench which has passed the order, unless the chairman may, for reasons to be recorded in writing, direct it to be heard by any other bench. (3) Unless otherwise ordered by the Bench concerned, a review application shall be dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....according to us is apparent, since the power granted is the power to review under the Code of Civil Procedure. The provisions relating to Review in the Code of Civil Procedure, 1908 are contained in Section 114 and Order XLVII. Article 124 of the Limitation Act prescribes the period of limitation for a petition for review under the Civil Procedure Code as 30 days. However, since the provisions of Limitation Act are applicable, Section 5 of the Limitation Act is also applicable and a Review Petition can be filed beyond the period of 30 days, if the petitioner is able to show sufficient cause for the delay. 19. In exercise of power conferred under Section 35(2)(d), (e) and (f) and Section 36(c), the Central Government has promulgated the Kerala Administrative Tribunal (Procedure) Rules, 2010. Rule 21 of the Rules says that no application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought. As already observed, the rule making power does not take in power to make rules for fixing a period of limitation for filing a review application. Such a prescription of 30 days, which is the same as the one prescri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alive for a legislatively fixed period of time." As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay." (30) Essentially, the law of limitation is founded on the anvil of public policy. However, while examining rule 17, we are countered with the disability which is present in the peremptory form for preference of a review application, in case they are filed after 30 days. At this juncture, it would be apt to mention that the Hon'ble Supreme Court in the case of Mangu Ram V/s Municipal Corporation Delhi, (1976) 1 SCC 392 has held that prescription by a special Act of a mere provisions of a period of limitation however peremptory or imperative language is not sufficient to displace the applicability of section 5 of the Limitation Act, in the following words: "7. There is an important departure made by the Limitation Act, 1963 in so far as the provision contained in s. 29, sub-s. (2) is concerned, whereas under the Indian L....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of s. 5 in order that the application may be entertained despite such bar. Mere provision of period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of s. 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, s. 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-s. (4) of s. 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it. The High Court, in the present case, did not, therefore, act without jurisdiction in holding that the application preferred by the Municipal Corporation of Delhi was not barred by the time limit of sixty days laid down in s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds of limitation prescribed by any special or local law, they necessarily require such suit, appeal or application to be filed under special or local law before full-fledged civil courts as otherwise Sections 4 to 24 of the Act by themselves would not apply to them. The Apex Court not only agree to the said proposition, but also observed in the following words :- "It has to be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced." (Emphasis supplied) (34) Apparently, the Apex Court in the Commissioner of Sales Tax, U.P. Vs. Madan Lal Dan & Sons. Bareilly(1977 (1) SCR 683) has held that for the purpose of determ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r the special or local law. Section 6 of Limitation Act, which provides for the extension of the period of limitation till after the disability in the case of a person who is either minor or insane or an idiot, is inapplicable to the proceedings under the Act/Rules. Similarly Sections 7 to 24are in terms inapplicable to the proceedings under the Act, particularly in respect of filing of applications and the procedure to be followed under the Act/Rules. The applicability of those provisions has, therefore, to be judged not from the terms of limitation Act but by the provisions of the Administrative Tribunals Act 1985 and the Rules made thereunder relating to the filing of original applications and review applications and their disposal to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of the Act. 13. Rule 19 is couched in negative form and disables the person from seeking review under Section 22(e)(f) of the Act, in case review is not filed within 30 days of the order. However, in the Act nowhere it is stated the method or manner or time limit to file such re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....able in view of the special limitation. The Gauhati High Court after noting that K. Ajit Babu's case and S.S. Rathore's case were not recorded by the Full Bench of the Calcutta High Court in the case of Union of India & Ors. Vs. Central Administrative Tribunal : (2002) SCC Online Cal 597 and as such held that the Calcutta High Court judgment did not lay the correct proposition of law. Thus, the Gauhati High Court concluded as follows: "8. As stated above, the limitation for filing a review application is 30 days, as provided in Rule 17 of the Rules of 1987. Thus, the Act of 1985 lays down specific provisions with regard to limitation as well as the power for condonation thereof. Hence, the proceedings under the Act of 1985 cannot be governed by the provisions of the Limitation Act, which is a general law governing issues of limitation arising in proceedings before Courts. This view is further fortified when we consider the ratio of the judgments relied upon by Dr. Sharma in the cases of International Asset (supra) and Sakuru (supra), wherein it has been stipulated that the proceedings before a statutory Tribunal cannot be placed at par with proceedings before a court. The ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nch relied upon a decision of the apex Court in the case of K.Ajit Babu (supra). In K.Ajit Babu (supra), the short question arose for consideration was whether the application filed by the appellants under Section 19 of the Act was maintainable. The apex Court held that often in service matters the judgments rendered either by the Tribunal or by the Court also affect other persons, who are not parties to the cases. In that context, the apex Court held that ordinarily, right of review is available only to those who are party to a case. It was further held that right of review is available if such an application is filed within the period of limitation on the grounds mentioned in Order 47 of the Code of Civil Procedure. Thus K.Ajit Babu (supra) cannot be understood as laying a law that the Tribunal is dehors of its power in entertaining an application for review filed beyond the prescribed period of limitation, if the same is accompanied by an application under Section 5 of the Limitation Act." (42) After distinguishing the judgment delivered by Hon'ble Supreme Court in K. Ajit Babu's case, the Full Bench of Hon'ble High Court of Orissa in the case of Akshaya Kumar Par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted decision of the Hon'ble Supreme Court in Union of India & others vs. Chitra Lekha Chakraborty passed in Civil Appeal No. 6213 of 2008, wherein the Apex Court held that since there is a specific provision in Rule 17 of the Administrative Tribunals Rules for filing of Review applications before the Central Administrative Tribunal, Section 5 of Limitation Act was not applicable to a petition under Rule 17. The Full Bench after extracting the relevant portion of the judgement of the Apex Court held as follows :- "22. In our humble opinion, with all the respect at our command, we are of the considered view that the said judgment cannot be treated as a binding precedent since it falls under both the exceptions viz. per incuriam and sub silentio. We have already indicated the statutory provisions which govern the filing of a review petition before the Tribunal. The Hon'ble Supreme Court, in the aforesaid decision was not apprised of the statutory provisions, which relate to the power of review available with the Tribunal. In fact the application for review is not one filed under Rule 17 but under Section 22(3)(f) of the Administrative Tribunals Act. Section 22 of....