Ner Guwahati 1St Floor Aaykar Bhawan Guwahati v. Chanchal Nag

GAHC010083392021 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3034/2021 THE UNION OF INDIA AND 3 ORS. REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI-110001 2: THE CENTRAL BOARD OF DIRECT TAXES REPRESENTED BY ITS CHAIRMAN DEPARTMENT OF REVENUE NORTH BLOCK NEW DELHI-110001 3: THE MEMBER (P AND V) THE CENTRAL BOARD OF DIRECT TAXES DEPARTMENT OF REVENUE NORTH BLOCK NEW DELHI-110001 4: THE PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX NER GUWAHATI 1ST FLOOR AAYKAR BHAWAN GUWAHATI-78100 VERSUS CHANCHAL NAG S/O LATE SWADESH RANJAN NAG, JOINT COMMISSIONER OF INCOME TAX, GROUP A SERVICE RANGE 3, GUWAHATI Advocate for the Petitioner : MR. S. C. KEYAL, CGC Advocate for the Respondent : DR. G. J. SHARMA, DR. J L SARKAR BEFORE HONOURABLE THE CHIEF JUSTICEHONOURABLE MR. JUSTICE SOUMITRA SAIKIA Date : 27-03-2023 JUDGMENT & ORDER(ORAL) (Sandeep Mehta, C.J.) This writ petition has been preferred by the Union of India and its componentsfor assailing the order dated 08.06.2020, passed by the Central Administrative Tribunal(CAT), Guwahati Bench (hereinafter referred to as “the Tribunal”), dismissing theReview Application No. 40/00009/2019, supported by Misc. Application No. 149/2019preferred by the petitioners seeking condonation of delay of 768 days in filing theReview Application, through which the order dated 04.08.2017, passed in OriginalApplication No. 40/00063/2017 was sought to be recalled/reviewed. 2.Learned counsel Mr. S. C. Keyal, representing the Union of India vehementlyand fervently contended that the Tribunal was totally unjustified in rejecting theapplication seeking condonation of delay in filing of the Review Application by holdingthat there was no power with the Tribunal so as to condone the delay. He placedreliance on the Full Bench judgment of the Calcutta High Court in the case of Union ofIndia & Ors. Vs. Central Administrative Tribunal & Anr., reported in 2002 SCCOnLine Cal 597, further reaffirmed by Calcutta High Court in the case of Union ofIndia and Ors. Vs. Ram Krishna Mondal and Ors., reported in MANU/WB2622/2019. He submitted that the Full Benches of Calcutta High Court, afteradverting to the statutory provisions contained in the Administrative Tribunals Act,1985 (hereinafter referred to as the “Act of 1985”) and the Central AdministrativeTribunal (Procedure) Rules, 1987 (hereinafter referred to as “the Rules of 1987”), haveheld in unequivocal terms that the Tribunal has the power under Section 5 of the Limitation Act, 1963 to condone the delay occasioned in filing Review Applicationdespite the restriction contained in Rule 17 of the Rules of 1987. He thus implored theCourt to accept the writ petition, set aside the impugned order and direct the Tribunalto consider the Review Application on merits after condoning the delay. 3.Per contra, Dr. G. J. Sharma, learned counsel representing the respondentvehemently and fervently opposed the submissions advanced by Mr. Keyal. Dr. Sharmaplaced reliance on the judgment rendered by the Hon’ble Supreme Court in the caseof K. Ajit Babu and Others vs. Union of India and Others, reported in (1997) 6 SCC473, wherein the Hon’ble Supreme Court held as follows: Limitation Act, 1963 to condone the delay occasioned in filing Review Applicationdespite the restriction contained in Rule 17 of the Rules of 1987. He thus implored theCourt to accept the writ petition, set aside the impugned order and direct the Tribunalto consider the Review Application on merits after condoning the delay. 3.Per contra, Dr. G. J. Sharma, learned counsel representing the respondentvehemently and fervently opposed the submissions advanced by Mr. Keyal. Dr. Sharmaplaced reliance on the judgment rendered by the Hon’ble Supreme Court in the caseof K. Ajit Babu and Others vs. Union of India and Others, reported in (1997) 6 SCC473, wherein the Hon’ble Supreme Court held as follows: “4.As stated earlier, the appellant has challenged the impugnedseniority list prepared on the basis of the decision rendered by the CentralAdministrative Tribunal, Ahmedabad in Transfer Application No. 263 of 1986dated 14-8-1987, by means of an application under Section 19 of the Actwherein there was no prayer for setting aside the judgment dated 14-8-1987 ofthe Administrative Tribunal. It is true that the judgment given by the CentralAdministrative Tribunal, Ahmedabad in TA No. 263 of 1986 would have come inthe way of the appellant. Often in service matters the judgments rendered eitherby the Tribunal or by the Court also affect other persons, who are not parties tothe cases. It may help one class of employees and at the same time adverselyaffect another class of employees. In such circumstances the judgments of thecourts or the tribunals may not be strictly judgments in personam affecting onlythe parties to the cases, they would be judgments in rem. In such a situation,the question arises: What remedy is available to such affected persons who arenot parties to a case, yet the decision in such a case adversely affects theirrights in the matter of their seniority. In the present case, the view taken by theTribunal is that the only remedy available to the affected persons is to file areview of the judgment which affects them and not to file a fresh applicationunder Section 19 of the Act. Section 22(3)(f) of the Act empowers the Tribunal toreview its decisions. Rule 17 of the Central Administrative Tribunal(Procedure) Rules (hereinafter referred to as “the Rules”) provides thatno application for review shall be entertained unless it is filed within30 days from the date of receipt of the copy of the order sought to bereviewed. Ordinarily, right of review is available only to those who are party toa case. However, even if we give wider meaning to the expression “a personfeeling aggrieved” occurring in Section 22 of the Act whether such personaggrieved can seek review by opening the whole case has to be decided by theTribunal. The right of review is not a right of appeal where all questions decidedare open to challenge. The right of review is possible only on limited grounds,mentioned in Order 47 of the Code of Civil Procedure. Although strictly speaking Order 47 of the Code of Civil Procedure may not be applicable to the tribunalsbut the principles contained therein surely have to be extended. Otherwise therebeing no limitation on the power of review it would be an appeal and therewould be no certainty of finality of a decision. Besides that, the right ofreview is available if such an application is filed within the period oflimitation. The decision given by the Tribunal, unless reviewed or appealedagainst, attains finality. If such a power to review is permitted, no decision isfinal, as the decision would be subject to review at any time at the instance ofthe party feeling adversely affected by the said decision. A party in whosefavour a decision has been given cannot monitor the case for all times to come.Public policy demands that there should be an end to law suits and if the viewof the Tribunal is accepted the proceedings in a case will never come to an end.We, therefore, find that a right of review is available to the aggrieved persons onrestricted ground mentioned in Order 47 of the Code of Civil Procedure if filedwithin the period of limitation.” (Emphasis supplied) Dr. Sharma also placed reliance on the judgment rendered by the Hon’bleSupreme Court in the case of Sakuru vs. Tanaji, reported in (1985) 3 SCC 590insupport of the contention that the provisions of the Limitation Act, 1963 apply only toproceedings in courts and not to appeals and applications to any other bodies otherthan courts, such as quasi-judicial tribunals. Reliance was also placed by Dr. Sharmaon the judgment of the Hon’ble Supreme Court in the case of International AssetReconstruction Company of India Limited vs. Official Liquidator of AldrichPharmaceuticals Limited and Others, reported in (2017) 16 SCC 137, wherein theHon’ble Supreme Court held as below: “9.The fact that the Tribunal may be vested with some of the powers asa civil court under the Code of Civil Procedure, regarding summoning andenforcing attendance of witnesses, discovery and production of the documents,receiving evidence on affidavits, issuing commission for the examination ofwitnesses or documents, reviewing its decisions, etc. does not vest in it thestatus of a court. Section 22(1), in fact, provides that the Tribunal shall not bebound by the procedures under CPC, and can regulate its own procedures inaccordance with natural justice. 10.Section 5 of the Limitation Act provides that the appeal orapplication, with the exception of Order 21 CPC may be admitted after theprescribed period, if the applicant satisfies the court that he has sufficient causefor not preferring the application within time. The pre-requisite, therefore, isthe pendency of a proceeding before a court. The proceedings under the Act being before a statutory Tribunal, they cannot be placed on a parwith proceedings before a court. The Tribunal shall therefore have nopowers to condone delay, unless expressly conferred by the statutecreating it.” (Emphasis supplied) In support of the argument that the Tribunal has no power to condone delay, Dr.Sharma also placed reliance on another judgment rendered by the Hon’ble SupremeCourt in the case of S.S. Rathore vs. State of Madhya Pradesh, reported in (1989) 4SCC 582, wherein the Hon’ble Supreme Court categorically laid down that the civilcourt’s jurisdiction has been taken away by the Act of 1985 and, therefore, as far asgovernment servants are concerned, Article 58 may not be invocable in view of thespecial limitation. Dr. Sharma urged that the Tribunal not being a court, cannot exercise thepowers conferred by Section 5 of the Limitation Act, 1963 and, hence, the Tribunalwas absolutely justified in rejecting the Condonation Application filed by the petitionerbecause the same was submitted after a gross delay of 768 days as against thepermissible time limit of 30 days provided in Rule 17 of the Rules of 1987. Dr. Sharma urged that the Tribunal not being a court, cannot exercise thepowers conferred by Section 5 of the Limitation Act, 1963 and, hence, the Tribunalwas absolutely justified in rejecting the Condonation Application filed by the petitionerbecause the same was submitted after a gross delay of 768 days as against thepermissible time limit of 30 days provided in Rule 17 of the Rules of 1987. 4.The second limb of the submissions of Dr. Sharma was that the instant writpetition is not maintainable because the original order dated 04.08.2017, passed bythe Tribunal in Original Application No. 40/00063/2017 accepting the OriginalApplication of the respondent has not been challenged in this writ petition. In thisregard, he has drawn the attention of this Court to the relief clause of the present writpetition pointing out that the prayer of the petitioners is only to assail the order dated08.06.2020 passed in Misc. Application No. 149/2019 filed seeking condonation of thedelay in filing the Review Application. He thus urged that the original order dated04.08.2017 having not been challenged in this writ petition, the same has attainedfinality and, hence, the petitioners are under a lawful obligation to comply with thesame. In support of this contention, Dr. Sharma has placed reliance on the followingHon’ble Supreme Court’s judgments: DSR Steel (Private) Limited vs. State of Rajasthan and Others, reported in(2012) 6 SCC 782 and Bussa Overseas and Properties Private Limited andAnother vs. Union of India and Another, reported in (2016) 4 SCC 696. 5.We have given our thoughtful consideration to the submissions advanced at bar;perused the impugned order and have given respectful consideration to theprecedents cited at bar. 6. The foundation of challenge to the impugned order, as urged by Mr. Keyal,learned counsel representing the Union of India was based on the two judgments(supra) of the Calcatta High Court. Suffice it to say that in the first Full Benchjudgment in the case of Union of India & Ors. Vs. Central Administrative Tribunal(supra) the judgments rendered by the Hon’ble Supreme Court in the cases of K. AjitBabu (supra) and S.S. Rathore (supra) were not considered. As the ConstitutionBench of the Hon’ble Supreme Court, in the case of S.S. Rathore (supra) hascategorically laid down that the civil court’s jurisdiction has been taken away by theAdministrative Tribunals Act, 1985 the view to the contrary taken by the Full Bench ofthe Calcutta High Court in the case of Union of India & Ors. Vs. CentralAdministrative Tribunal (supra) cannot be held as laying down a correct propositionof law. 7. Rule 17 of the Rules of 1987 provides an express bar against entertainment ofa Review Application unless it is filed within thirty days from the date of receipt of thecopy of the order sought to be reviewed. By holding that this limitation of 30 days isnot mandatory and can be extended by resorting to the provisions of the LimitationAct, 1963 the Full Bench of the Calcutta High Court virtually declared the statutoryprovision to be ultra vires. The Administrative Tribunals Act, 1985 is a special law. Section 21(1) of the Act of 1985 prescribes limitations for filing of the originalapplications, which is one year for making the application. The power of condonationof delay for a period not exceeding six months to entertain the original application hasbeen vested with the Tribunal under Sub-Section (3) of Section 21. Section 21(1) of the Act of 1985 prescribes limitations for filing of the originalapplications, which is one year for making the application. The power of condonationof delay for a period not exceeding six months to entertain the original application hasbeen vested with the Tribunal under Sub-Section (3) of Section 21. 8. As stated above, the limitation for filing a review application is 30 days, asprovided in Rule 17 of the Rules of 1987. Thus, the Act of 1985 lays down specificprovisions with regard to limitation as well as the power for condonation thereof.Hence, the proceedings under the Act of 1985 cannot be governed by theprovisions of the Limitation Act,which is a general law governing issues oflimitation arising in proceedings before Courts. This view is further fortified whenwe consider the ratio of the judgments relied upon by Dr. Sharma in the cases ofInternational Asset (supra)and Sakuru (supra), wherein it has been stipulated thatthe proceedings before a statutory Tribunal cannot be placed at par with proceedingsbefore a court. The Tribunal shall have no power to condone the delay unlessexpressly conferred the power by the statute creating it. As Rule 17 of the Rules of1987 expressly provides timeline of 30 days for entertaining a review application,unless the statutory provision is declared to be ultra vires such power cannot be readinto the statute by a judicial pronouncement. 9. Thus, we have no hesitation in holding that the Tribunal was justified inholding that it has no power to condone the delay and entertain the review applicationbeyond a period of 30 days. Thus, the rejection of the Misc. Application No.149/2019,filed by the petitioners seeking condonation of the gross and inordinate delay of 768days in filing the Review Application by the impugned order dated 08.06.2020, doesnot call for any interference in exercise of the extra ordinary writ jurisdiction conferredupon this Court by Article 226 of the Constitution of India. As we have decided thisissue in favour of the respondent, the second limb of argument advanced by Dr.Sharma is left open for consideration. 10.In view of the discussion made hereinabove, the writ petition is devoid of merit and is rejected. No order as to costs. JUDGECHIEF JUSTICE Comparing Assistant