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C.A. @ S.L.P.(C)No.26332/2011

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    9644         OF 2013 [Arising out of S.L.P.(C)No.26332 of 2011]

Bharat Sanchar Nigam Ltd. (B.S.N.L.) & Anr. …..Appellants

Versus

S.K. Bhatnagar & Ors. …..Respondents

J U D G M E N T

VIKRAMAJIT SEN, J.

1. Leave granted.    

2. This Appeal assails the Order passed on 22.11.2010 by the Division  

Bench of the High Court of Judicature at Allahabad in Writ Petition  

No.1580 (S/B) of 2010.  Regretfully, it is a laconic order in respect of  

an extremely cryptic decision of the Central Administrative Tribunal  

(CAT), Lucknow Bench, Lucknow rendered on 7.1.2008 in Original  

Application No.153 of 2007. In the impugned Order it has been noted  

that  Respondent  no.1  retired  from  the  service  of  the  Appellant-

company on 31.5.1990; he was serving as Telecom District Engineer  

(Chambal), Gwalior.  It is also duly noted that Respondent no.1 had  

applied for commutation of his pension.  It stands admitted that he was  

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receiving pension predicated on the commutation viz., not full pension.  

Neither of the Orders state the date of the application for commutation  

of pension, but in the hearing before us it has been indicated that this  

request  was  made in 1988.   The Appellants’ submission before  the  

Division Bench of the High Court was that a Cheque No.312436 dated  

18.12.1990 had been dispatched to Respondent no.1 at his Lucknow  

address.  Before this Court, the contention is that payment was made  

by  a  Demand  Draft  bearing  even  number.   It  was  in  2007  that  

Respondent no.1 filed the abovementioned Original Application before  

the  CAT,  Lucknow Bench which passed  the  aforementioned cryptic  

Order on 7.1.2008.  Since Respondent no.1 had retired on 31.5.1990  

his grievance of having not received the commuted pension amount of  

Rs.87,400/- has come after the passage  of 17 long years.  It is palpably  

clear that this inordinate delay has been glossed over in the impugned  

Order.  So far as the CAT, Lucknow Bench is concerned it has firstly  

observed that disputed questions of fact have arisen and, therefore, it  

would  not  be  proper  for  the  Tribunal  to  decide  the  case  yet,  

inexplicably it has gone on to opine that it cannot be concluded that the  

aforesaid  amount  of  Rs.87,400/-  had  been  paid  to  Applicant-

Respondent no.1.  It has directed B.S.N.L. to furnish within one month  

valid proof of  receipt  of cheque by the Applicant-Respondent  no.1,  

failing which an adverse inference would be drawn in law.  While we  

appreciate that Respondent no.1-claimant cannot prove the negative,  

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viz., that he did not receive the cheque allegedly dispatched to him, the  

factum of the passage of 17 years would be good ground not to cast a  

presumption of law against the Appellants.  It appears that the State  

Bank of India has pleaded that the records, being more than ten years  

old, stand destroyed, and therefore no information in this regard could  

be furnished.  In these circumstances how is the dispute to be decided.  

Before us, a photocopy of the Cash Book maintained by the Appellants,  

presumably in the ordinary course of business, has been furnished.  It  

purportedly indicates that three Demand Drafts had been got issued,  

ostensibly against cash deposit.  The Tribunal proceeded in haste in not  

addressing the dispute in detail.

3. Learned counsel for Respondent no.1 has drawn our attention to Union  

of India & Ors. v. Tarsem Singh (2008) 8 SCC 648 wherein this Court  

has  held  that  normally service  matter  claims  are  rejected  either  on  

limitation or on the grounds of delay/laches; the exception being cases  

of continuing wrong.  We cannot appreciate how this advances the case  

of Respondent no.1.  Two facts are important – (a) that it is the case of  

Respondent  no.1  himself  that  he  applied  for  commutation  of  his  

pension before his retirement; and (b) that he was not receiving his full  

pension.   This  should  have  alerted  any  Adjudicating  Authority  to  

consider  the veracity of his  claim without  invoking the principle  of  

‘presumption in law’.  Tarsem Singh, therefore, does not assist the case  

of Respondent no.1 a wit.   

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4. We find that there is no alternative but to remand the matter back to the  

High Court  of  Judicature  at  Allahabad  for  a  complete  and detailed  

consideration of the matter.  It must consider all the evidence collected  

by both the adversaries and come to a definite answer without resorting  

to fastening a ‘presumption in law’ on either party keeping the long  

passage of time in perspective.  It must also consider whether the claim  

stood barred by limitation, or was pregnant of the possibility of being  

rejected for delay and laches.

5. The  impugned  Order  is  accordingly  set  aside  and  the  matter  is  

remanded to the High Court  for  fresh adjudication.   The Appeal  is  

allowed accordingly.  We hasten to clarify that nothing contained in  

these presents shall be construed to indicate our views on the merits of  

the case.

.................................................J. [T.S. THAKUR]

.................................................J. [VIKRAMAJIT SEN]

New Delhi. October  24,  2013.

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