SUSHAMA H. MISAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The Central Administrative Tribunal, Mumbai (hereafter "the Tribunal", for short) by its judgment and order dated December 5, 2019 dismissed O.A. No.804 of 2019 (hereafter "the original application", for short) as time barred. Aggrieved thereby, the original applicant has mounted a challenge to such judgment and order by presenting this writ petition.

(2.) At the relevant time, the petitioner was the Principal of the Kendriya Vidyalaya, AFS Thane (hereafter "the institution", for short). She was served with a charge-sheet dated March 24, 2015, whereby she was informed of action proposed to be taken under rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. In fine, the charge-sheet depicts that the petitioner had made certain payments to the income tax department out of VVN Fund without obtaining prior permission of the competent authority and also that she had failed to obtain refund of excess amount from such department. Departmental inquiry that was conducted resulted in a finding of guilt being returned against her. The petitioner suffered an order of penalty dated June 4, 2015. An amount of Rs.2,35,060/- was directed to be recovered from her pensionary benefits. Incidentally, such an order was passed in the penultimate month she was to remain in service. However, before retirement from service on July 31, 2015, she preferred a statutory appeal on June 22, 2015 before the Additional Commissioner (Admin & CVO), respondent no.3, being the appellate authority. The appeal not having been disposed of by the appellate authority, she submitted a representation dated March 25, 2019. The appellate authority was urged to decide the appeal within 15 days, failing which she intended to pursue her legal remedies. More than six months passed since submission of such representation, yet, the appeal was not disposed of. Challenging the order of penalty as well as the inaction of the appellate authority to decide the appeal, she approached the Tribunal seeking multiple relief including an innocuous prayer for a direction on the appellate authority to decide the appeal at an early date. The Tribunal referred to sections 20 and 21 of the Administrative Tribunals Act, 1985 (hereafter "the Act", for short) and observed that the appeal dated June 22, 2015 not having been decided within six months, the petitioner ought to have approached the Tribunal with her original application within a year of expiry of six months from the date of preferring of the appeal. Not having so approached, the original application was time barred. Insofar as the representation dated March 25, 2019 is concerned, the Tribunal opined that such a representation being non-statutory in nature, the petitioner could not legitimately claim to derive any advantage out of non-consideration thereof. The Tribunal relied on the decisions of the Supreme Court in S.S. Rathore V/s. State of Madhya Pradesh, reported in 1988 Supp (1) SCC 522 : AIR 1990 SC 10 and in Union of India and Another V/s. M.K.Sarkar, reported in (2010) 2 SCC 59 : 2009 (14) Scale 425 to hold that the representation did not give the petitioner a fresh cause of action. The Tribunal also noted that no application for condonation of delay had been filed by the petitioner. In such view of the matter, dismissal of the original application was ordered.

(3.) Mr.Anil Anturkar, learned senior advocate appearing for the petitioner has contended that having regard to the provisions of clause (b) of sub-section (2) of section 20 of the Act, the petitioner had duly submitted a representation finding that the appellate authority had omitted and/or failed to dispose of the appeal dated June 22, 2015 and the original application having been filed by the petitioner on November 19, 2019, i.e. beyond September 24, 2019 and before one year therefrom, the Tribunal erred in returning a finding that the original application was time barred. Mr.Anturkar also sought to impress upon us that the petitioner was made to suffer an order of penalty of recovery of Rs.2,35,060/- from her pensionary benefits although there could, if at all, be a minor error on her part in making payment of tax from a fund different from the designated account. According to him, the petitioner was not at fault for not effecting payment of the subject tax on time, since she was not the Principal of the institution at the relevant point of time and had to suffer recovery from her pensionary benefits entirely owing to the fault attributable to her predecessor-in-office. He, accordingly, prayed for a direction on the appellate authority to decide the appeal within such time as would be fixed by this Court.