Allahabad High Court
Ashok Kumar Dubey vs General Manager, U.P. Forest ... on 1 November, 2002
Equivalent citations: 2003(1)AWC192
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. It would appear from the record that on the basis of certain charges, departmental proceeding was launched against the petitioner vide order dated 14th September, 2001. The enquiry culminated in passing of final orders by which recovery of Rs. 19,680 was directed to be effected from the petitioner in 19 instalments, each instalment consisting of Rs. 680. Appeal preferred by the petitioner against the said order came to be dismissed as barred by time. The learned counsel for the petitioner urged that the order of punishment and the appellate order cannot be sustained in law.
2. Sri V. K. Singh, learned counsel for the opposite parties contended that the appeal was dismissed as barred by time and by this reckoning, the matter was not considered by the appellate authority on merits and it was rightly rejected as barred by time. Sri V. K. Singh fairly conceded that Rules relating to departmental proceedings and appeal have been adopted by the U. P. Forest Corporation and the adopted rules are applicable.
3. From the perusal of Annexure-1, it is clear that the charge-sheet was served to the petitioner on 24.9.1998. At the relevant time, Civil Services Classification and Appeal Rules, 1930, as applicable in U. P., were in operation and the procedure envisaged therein being of substance, Note to Rule 56 (1) is abstracted below for ready reference :
"Note.--Such representation will not ordinarily be entertained unless it is preferred within six months from the date on which the Government servant concerned was informed of the order of punishment."
4. Rule 64 (3) of the Rules refers to and deals with appeals and it being relevant too, is quoted below :
"64. An appeal may be withheld by an authority not lower than the authority whose order it is preferred if :
(1) ................................. (2) .................................
(3) It is not preferred within six months after the date on which the appellate authority was informed of the order, appeal against no reasonable cause is shown for the delay, or ; (4) ................................."
5. Bare perusal of the aforesaid Note to Rule 56 (1) makes it crystal clear that appeal/representation shall ordinarily be entertained within six months. Rule H of the U. P. Government Servant (Discipline and Appeal) Rules, 1999, envisages the provisions of appeal against the order of disciplinary authority. Rule 17 (2) makes it explicit that any enquiry, appeal, revision or review pending on the date of enforcement of the Rules shall be continued and concluded in accordance with the provisions of these rules. Rule 17 (2) of the Rules, 1999 being relevant Is quoted below :
"Notwithstanding such rescission :
(a) Delegation of power mentioned in Punishment and Appeal Rules for Subordinate Services Uttar Pradesh, 1932 and any order issued under the Civil Service (Classification, Control and Appeal) Rules, 1930 or Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932, delegating the power of imposing any of the penalties mentioned in Rule 3 or power of suspension of any authority shall be deemed to have been issued under these rules and shall remain valid unless cancelled or rescinded ;
(b) Any inquiry, appeal, revision or review pending on the date of coming into force of these rules shall be continued and concluded in accordance with the provisions of these rules ;
(c) Nothing in these rules shall operate to deprive any person of any right of appeal, revision or review which he would have had if these rules had not been in force in respect of any order passed before the commencement of these rules and such appeal, revision or review shall be preferred under these rules and disposed of accordingly as if the provisions of this Rule were in force at all material times."
6. Earlier rules envisaged that period of six months was the normal limit but word 'ordinarily' signifies that this could be entertained after six months also however, hedged in with certain conditions.
7. In the present case, order of disciplinary authority was communicated to the petitioner through the letter dated 17.9.2001. The appeal was presented on 27.7.2002. Before presenting the appeal, the petitioner had filed an application for review against the order of disciplinary authority on 5,12.2001 and the said review is still hanging fire, The appellate authority did not address itself to the aspect that the petitioner had already taken steps for review of the order passed by the disciplinary authority and the delay had already been explained as cause shall be deemed to have been assigned having regard to the fact that review had preceded the filing of appeal. In the circumstances, the appellate authority should have entertained the appeal for being decided on merits and it erred in law in eschewing from consideration the provisions of Rule 56 and the note thereto and acted illegally in refusing to decide the appeal on merits. The appellate authority should have entertained the appeal on merits in the facts and circumstances of the case. It is well-settled and brooks no dispute that authorities having power to set aside, do have power to suspend the operation of the concerned impugned order.
8. As a result of foregoing discussion, the petition is allowed in part. The order dated 31st July, 2002 (Annexure-8 to the writ petition) is quashed. The appellate authority is directed to entertain the appeal on merits treating the appeal within time and decide the same within three months. In case any application is filed for staying operation of the order of disciplinary authority, the same shall also be taken into consideration by the appellate authority in accordance with law.