The main legal point established in the judgment is that delay and laches may be waived by the party in whose favour it may work, and recovery of payment is an objection to the remedy sought and may be waived by the party.

JUDGMENT :

1. Heard Sri Krishna Agarawal, learned counsel for respondents-petitioners and Sri S.K. Mishra, learned counsel for applicant-respondent.

2. The writ petition is directed against the final order dated 31.03.2017 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 330 of 00079 of 2015, Mohd. Yunush v. Union of India and Another. By that order, the Tribunal has allowed the original application and directed the respondents-petitioners for payment of Rs. 2,16,947/-to the applicant-respondent that had been deducted at the time of payment of retiral dues to the applicant-respondent consequent to his retirement on attaining the age of superannuation on 31.07.2010.

3. The undisputed facts of the case are, the applicant-respondent retired on the post of J.E.-II, from the East Central Railway, Mughalsarai. During his years in service, the applicant-respondent suffered a medical condition, for which, he was hospitalized at the Railway Hospital, Mughalsarai and thereafter referred to higher medical centre. Consequent to his recovery, he was categorized in the lower medical category C-1 grade on 29.07.2010, just three days before his attaining the age of superannuation. While preparing his pension papers, the Central Railway Authorities realised, excess payment had been made to the applicant-respondent month to month, totaling Rs. 2,16,947/-. That was deducted.

4. Being aggrieved, the applicant-respondent first approached the departmental authority, who rejected his claim. Being aggrieved, the private-respondents filed the Original Application, giving rise to the present petition. It is true that a counter affidavit had been filed by the Union of India and plea of delay had been raised therein. However, on perusal of the order of the Tribunal, it appears that no such plea was pressed at the stage of hearing. Paragraph 3 of the order of the Tribunal contains the contentions raised by the Union of India, which reads as below :-

"Per contra, the respondent's counsel stated that the letter dated 07.07.2014 cannot be an impugned order as this is an information, received by the applicant, through Right to Information Act hence on this account only the O.A. deserves to be dismissed. Counsel for the respondents stated that the respondents have constituted the medical board, which found the applicant unfit in B-1 and B-2 category and fit in C-1 category and below with glass for D.V/NV. Counsel for the respondent stated that the applicant has no leave balance in his account hence the question of leave salary does not arise."

5. Consequently, the Tribunal has not dealt with the issue of delay.

6. On the merit issue, the Tribunal has found that no show cause notice was ever issued to the applicant-respondent during his years in service, seeking to reverse the alleged excess payment made to the applicant-petitioner. Considering the loss suffered, calling for sympathetic consideration of his case, the Tribunal has allowed the Original Application and provided for refund of the wrongly deducted amount Rs. 2,16,947/-.

7. Having heard the learned counsel for the parties and having perused the record, we find no good ground to interfere in the facts of the present case. In the first place, the issue of delay and laches that may have been available to the Union of India, though raised before the learned Tribunal, was not pressed at the stage of oral hearing. Consequently, the Tribunal has not dealt with this.

8. Once the Union of India had thus waived its right to press the objection as to limitation before the Tribunal, it may not be allowed to resurrect the ground of delay, in the present proceedings that arise by way of judicial review of the order of the Tribunal.

9. In State of Punjab v. Madan Singh, (1974) 3 SCC 90, where, issue of delay and laches had not been raised before the High Court, the issue was not allowed to be raised before the Supreme Court. It was observed :-

"5. It was urged on behalf of