Limitation
Querist :
Anonymous
(Querist) 03 August 2011
This query is : Resolved
My writ Petition was disposed of on 19-05-2010 with a direction to the concerned authority to consider my representation/appeal after the departmental proceedings is completed.
But till today neither departmental proceeding has been initiated nor has my representation/appeal been considered. Now it seems limitation period of 1 year for the contempt proceedings has also run out.
Can anyone suggest, what can be done under such circumstances???
Advocate Rajkumarlaxman
(Expert) 03 August 2011
move an civil application for the same attaching the order copy. it is in case of Mumbai Highcourt . in other Highcourts it is known as interim Applications
R.Ramachandran
(Expert) 03 August 2011
Dear Anonymous,
The Contempt, if at all, would arise only if the departmental authorities fail to consider your representation/appeal, after the proceedings is completed. Accoding to you, the departmental proceeding has not even been initiated. Therefore the question of "contempt" is highly ill-conceived. If at all, you can move a fresh writ petition in the matter (ofcourse without fail mentioning the fact of earlier writ petition, the disposal order etc.). Moving an interim application in the disposed off case may be a bit difficult.
K.S.Srinivas
(Expert) 03 August 2011
Better file fresh W.P. mentioning the order passed in the w.p. disposed on 19-10-2010 praying initiating and immediate completion of departmental proceedings.
Querist :
Anonymous
(Querist) 05 August 2011
SORRY RAMA SIR!!!
Res. Rajkumar sir, Ramachandran sir & Sriniwas sir (And other Ld. members),
In continuation to my yester question, I am reproducing here the extract of HC order. Kindly go thoroughly and suggest, would it be as suggested by you last night?
BEFORE
THE HON’BLE MR. JUSTICE…….
19th May, 2010
The petitioner is working as UDC since 1996 in the deptt. of PHE. At the relevant time he was serving in the office of the PHE sub-division at………….. While he was serving there he applied and availed casual leave on 29th, 30th and 31st August, 2005 as he was suffering from some ailments. He could not join his duties. He did not inform or apply for further leave. He overstayed for a period of 12 months from 01-09-2005 to 31-08-2006 without any authority. After 12 months, he came and joined his duties on 01.09.2006 with an application for Extra Ordinary Leave (EOL). When he joined on 01.09.2006 by submitting a joining before the Assistant Engineer, PHE sub-division, the same was forwarded to Division office.
According to the petitioner after he joined on 01-09-2006, he used to come regularly to the office but the officer concerned used to mark absent in the attendance with an assurance that the absentee statement would be rectified as soon as the acceptance of joining report is received from the higher authority.
It is stated that no communication has so far been received from the higher authority. Therefore, he made a representation dtd. 18.03.2008 before the Superintending Engineer, PHE praying for rectification of monthly attendance report. The said representation has not yet been considered and disposed of by the said superintending Engineer. No communication has been received so far in regard to the aforesaid prayer. As a result, the divisional office has denied payment of salary from the date of his joining i.e 01.09.2006 for which the petitioner is suffering from acute financial hardship in maintaining his family.
Learned Addl. Sr. Govt. Advocate submits that a departmental proceeding is pending against the petitioner in regard to the alleged unauthorized absence. The same was initiated on 03.12.2007. A show cause notice was issued upon the petitioner through paper publication and he submitted a representation in March, 2008. There was no show-cause reply from the petitioner but in the said representation he made a request for not treating the absent period as dies non. The said representation is also pending consideration and disposal by the authorities concerned. Thereafter, an inquiry officer was appointed for conducting the departmental enquiry. The petitioner was summoned on 20th and 25th june, 2008 but on the said dates, the inquiry officer was absent.
The aforesaid departmental proceeding is pending without any progress and the main question regarding the alleged unauthorized absence has remained undecided till date.
Considering the aforesaid facts and circumstances and for the ends of justice, I dispose of this writ petition with the following directions to the Chief Engineer, PHE who is the concerned authority :
(i) To take necessary steps for completion of the departmental proceeding within a period of 60 days from today in accordance with the existing rules and procedure and providing due opportunity to the petitioner.
(ii) The petitioner is also directed to participate in the departmental proceeding so that the same could be completed within the said specified period.
(iii) To consider and dispose of the representation dtd. 18.03.2008 with a speaking order after the conclusion of the departmental proceeding and communicate the same to the petitioner.
With the aforesaid directions, this writ petition stands disposed of.
Registry shall furnish a copy of this order to Addl. Sr. Govt. Advocate by tomorrow for onwards transmission to the concerned authority.
N.B: The portion submitted above by the Govt. Advocate talks about the period from 01.09.2005 to 31.08.2006.Whereas, the subject matter is from the period 01.09.2006 to till date.
R.Ramachandran
(Expert) 05 August 2011
The Department has said that "A show cause notice was issued upon the petitioner through paper publication and he submitted a representation in March, 2008. There was no show-cause reply from the petitioner but in the said representation he made a request for not treating the absent period as dies non."
Please indicate did you submit reply to the Show Cause Notice not.
Shastri J.K.
(Expert) 06 August 2011
Better u file an application for modification of order, in which u pry for decied your representation/appeal within afix period.
Querist :
Anonymous
(Querist) 08 August 2011
Show-cause notice was for the period 1.9.2005 to 31.8.2006.The main question in the petition is for the period 1.9.2006 to till date. I did summit the reply, but it shouldn't be mixed up with the question in dispute i.e from 1.9.2006 to till date.
R.Ramachandran
(Expert) 08 August 2011
Since according to the Department you unauthorisedly absented yourself from 1.9.2005 to 31.8.2006, the show cause notice would be only for that period. The one and the only show cause notice issued to you covers the period 1.9.2005 to 31.8.2006. Therefore you are supposed to give reply to the show cause notice.
INSTEAD YOU ARE TAKING ABOUT THE PERIOD 1.9.2006 ONWARDS. HOW IS THAT PERIOD RELEVANT. I DO NOT THINK ANY SHOW CAUSE NOTICE WAS ISSUED FOR THAT PERIOD I.E. FOR THE PERIOD 1.9.2006 ONWARDS.
Therefore please state whether you submitted your reply to the Show cause notice in question or not? If you submitted the reply, when did you submit the reply?
Querist :
Anonymous
(Querist) 09 August 2011
Yes..... the show-cause notice, inquiry, departmental proceeding are all about the period 1.9.2005 to 31.8.2006.(But all correspondences with regard to it taken/taking place lately)
The period from 1.9.2006 is the period during which I haven't been paid any salary inspite of my attendance in the office and it was the reason I petitioned before the HC. There is certainly no link between release of salary from the period 1.9.2006 to till date and the departmental proceeding i/r of 1.9.2005 - 31.8.2006.
But HC too seems to have mis-understood/confussed with regard to periods.
