Director Indira Gandhi Rashtriya Udan ... vs Sunder Lal Maurya And Anr. on 13 October, 2023

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Allahabad High Court

Director Indira Gandhi Rashtriya Udan ... vs Sunder Lal Maurya And Anr. on 13 October, 2023

(Dictated by Justice Shree Prakash Singh) [Order on C.M. Application (IA) Nos. 27 of 2022, 36 of 2023 and 37 of 2023] Heard Sri Sunder Lal Maurya, the applicant/respondent who appears in person, Sri Anurag Srivastava and Sri Yogesh Chandra Bhatt, learned counsel for the respondent/appellants.

This is a chronic case which has been brought before us by way of instituting an application dated 04.02.2022, for recall of the final order dated 13.09.2017 passed by this Court in Special Appeal No. 10 of 2017.

Brief history of the case is that the applicant was initially appointed on 31.05.1991 in Indira Gandhi Rashtriya Udaan Academy (hereinafter referred as 'IGRUA') and was working as a tractor driver. On, 11.07.2001, he was issued chargesheet for disobedience of the orders of the authority of the Academy and the departmental enquiry proceeded and vide order dated 23.07.2002, removal order was passed and thereafter, the appellate authority had also upheld the punishment on 23.01.2003. Being aggrieved the applicant filed a writ petition, bearing number, Writ Petition No. 2226 (SS) of 2003, against the order of removal dated 23.07.2002, wherein, vide judgement and order dated 23.12.2016, the writ petition was allowed. The operative portion of the order dated 23.12.2016 is quoted hereinunder:-

"In view of the above, there is no need to consider the merits of the charges alleged against the petitioner. The orders impugned in Writ Petition No. 2226 (SS) of 2003 are hereby quashed.

Consequently, the petitioner shall be reinstated in service with effect from the date of passing of the order of his removal from service. Considering the long lapse of 16 years, the Court does not find it a fit case for granting liberty to the opposite parties to hold an inquiry afresh, specially as, the petitioner has already suffered a lot by being out of service. However, considering the fact that the petitioner has not brought anything on record to show that he was not gainfully employed while he was out of service, but, then again considering the fact that the proceedings are void-ab-initio and the fact that the petitioner has been kept out of service on the basis of proceedings initiated against him which were a nullity in the eyes of law since inception, his reinstatement will be with only 50% back wages, however, current salary shall be fixed after treating the petitioner in continuous service from the date of passing of the removal order. Consequential service benefits shall follow accordingly as per law.

Writ Petition No. 2226(S/S) of 2003 is allowed in the aforesaid terms. "

Challenging aforesaid order, IGRUA filed an Special Appeal No. 10 of 2017, wherein, the order was passed on 13.09.2017, whereby, the judgement and order passed by the learned Single Judge dated 23.12.2016 was set-aside and the matter was transmitted back to the Central Administrative Tribunal. The extract of the order passed in Special Appeal No. 10 of 2017 is reproduced hereinunder:-

"Accordingly, we allow the appeal. The order impugned passed by the learned Single Judge dated 23.12.2016 is hereby set aside. Both the writ petitions along with records be transferred to the Central Administrative Tribunal, within two months from today whereupon the Tribunal will proceed to decide the same, in accordance to law.

All ancillary proceedings whatever may be pending consideration before this Court in both the writ petitions will also be transfered to the Central Administrative Tribunal. Since the writ petitions are of the year 2000 and 2003, we expect that the Tribunal shall make an endeavour to dispose of both the cases, expeditiously, preferably within a period of six months from the date of receipt of the records."

Again the applicant instituted a review application for revisit of the order dated 13.09.2017, which was dismissed on 24.04.2019. Thereafter, a modification application was also moved by the applicant for modification of the order dated 24.04.2019, passed in the review application and that too has been rejected on 24.07.2019.

Now the instant application has been moved for recall of the order dated 13.09.2017, which is after lapse of five years.

At the very outset, counsel appearing for the IGRUA has raised preliminary objection, that since the order dated 13.09.2017, is the final judgement and order, in Special Appeal No. 10 of 2017 and therefore, miscellaneous application that is the application for recall, is not maintainable. He reitirated that the applicant moved review application of the order dated 13.09.2017, which was dismissed by the coordinate bench of this Court on 24.04.2019 and modification application for modification of the order dated 24.04.2019 passed in review application was also rejected on 24.07.2019. Therefore, submission is that the application for recall of the order dated 13.09.2017 may be rejected.

On the other hand, the applicant, namely, Sunder Lal Maurya, who appears in person submitted that the order dated 13.09.2017 has been passed ignoring the settled proposition of law by the Apex Court. He added that it is trite law that once a writ petition is admitted and is pending for long considerable period of time then the alternative remedy is not an absolute bar and in the present matter, the writ petition was not only admitted, but the final judgement and order was passed and therefore, this Court should not have remitted back the matter to the Central Administrative Tribunal.

He further argued that the writ petition was filed in the year 2003 and after 13 years, it was decided in year 2016, therefore if the matter of the applicant is again relegated back to the Central Administrative Tribunal but, no fruitful purpose would be sub-served and the applicant would be harassed for no fault on his part. Thus, submission is that the recall application may be allowed and appropriate order may be passed.

Having heard the learned counsel for the parties and after perusal of the record, it transpires that the Writ Petition No. 2226 (SS) of 2003 (Sunder Lal Maurya versus Director Indira Gandhi Rashtriya Udaan Akademi Fursatganj), was allowed on 23.12.2016 in favour of the applicant while quashing the impugned removal order and thereafter, the Special Appeal bearing number 10 of 2017 was filed by the IGRUA and the same was allowed and the matter has been remitted back before the Central Administrative Tribunal, whereafter, a review application was filed by the applicant, which was dismissed and further the modification application with prayer for modifying the order passed in review application, has also been dismissed.

When we examine the application for recall of the order dated 13.09.2017, moved by the applicant, it emerges that the same has been filed after the review petition and the modification application is dismissed by the Coordinate Bench of this Court, while testing its maintainability. It is trite law that 'once the proceeding stands terminated by final disposal of the writ petition, it is not open to the court to reopen the proceedings by means of miscellaneous application'.

In case of State of UP Vs Brahm Datt Sharma and another reported in (1987) 2 SCC 179, it has been held by the Apex Court that no miscellaneous application could be entertained to revive proceeding in decided matters. The relevant portion, i.e., paragraph 10 of the abovesaid judgement is reproduced hereinunder:-

"The High Court's order is not. sustainable for yet another reason. Respondents' writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subse- quent events after two years. If the respondent was ag- grieved by the notice dated 29.1.86 he could have filed a separate petition under Art. 226 of the Constitution chal- lenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous applica- tion in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning. "

Admittedly, the instant recall application has been filed after the final judgement and order dated 13.09.2017 passed in Special Appeal No. 10 of 2017 and that too subsequent to the dismissal of the review application as well as the modification application and therefore the matter of the applicant is squarely covered with the ratio of judgement quoted as above.

In view of the aforesaid submission and discussion, we find no merit in this application, resultantly, the recall application is hereby rejected.

The applications for amendment in the recall application bearing CMA No. 36 of 2023 and CMA No. 37 of 2023 are misconceived, hence also rejected.

While departing from the aforesaid order, this Court has noticed the fact from the supplementary affidavit dated 06.10.2023 filed by the counsel for the IGRUA that after the matter was transmitted back to the Central Administrative Tribunal, the case was registered as T.A. No. - 02 of 2018, which is still pending consideration before the Central Administrative Tribunal, Lucknow. Therefore, in the interest of justice, it is expected from the applicant to appear and pursue his case before the Central Administrative Tribunal.

In case, the applicant appears before the Central Administrative Tribunal and pursue his case, then it is expected that the Learned Central Administrative Tribunal shall expedite the proceedings by affording an opportunity of hearing to the parties concerned and those proceedings may be concluded in expedition, preferably within a period of one year, from the date of receipt of a certified copy of this order.

Order Date :- 13.10.2023 Anurag

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Allahabad High Court