Allahabad High Court
Satya Prakash Upadhyay S/O Laxmi Kant ... vs U.P. State Public Service Tribunal ... on 3 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2452
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- SERVICE BENCH No. - 1392 of 2009 Petitioner :- Satya Prakash Upadhyay S/O Laxmi Kant Upadhyay Respondent :- U.P. State Public Service Tribunal Lucknow & Anr. Counsel for Petitioner :- G.P. Mishra,Dev Kumar Tripathi Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Attau Rahman Masoodi,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
By means of this petition, the petitioner has challenged the impugned judgment and order dated 11.3.1997 passed by the State Public Services Tribunal in claim petition no. 1791 of 1996(Satya Prakash Upadhyaya versus State of U.P. and others) as well as the order dated 24.7.2009 by which the review petition no. 100 of 2008 has been rejected.
Facts in brief of the of the present case are that the petitioner was a Tube Well Operator in the Irrigation Department under opposite party no. 2. The executive Engineer, Public Service by means of the order dated 6.7.1985 has terminated the service of the petitioner. The petitioner thereafter filed an appeal which was also dismissed by the order dated 22.11.1988.
Being aggrieved against the dismissal order dated 6.7.1985 and the order dated 22.11.1988, the petitioner preferred a claim petition no. 1791 of 1996(Satya Prakash Upadhyaya versus State of U.P. and others). The same was also dismissed by the U.P. State Public Service Tribunal by the order dated 11.3.1997. The relevant portion of the order dated 11.3.1997 is quoted hereinafter:-
"After hearing the learned counsel for the petitioner and after a careful consideration of the record, the Tribunal is of the view that the order of termination of the petitioner was passed on 6.7.1985 and his apeal was also dismissed on 22.11.1988 but after that the petitioner could not be able to explain satisfactorily the delay caused by him in filing this claim petition. The tribunal is further of the view that the claim petition is highly time barred in view of the provisions of Section 5(b) and 3rd proviso of Section 4 of the Tribunal Act. As such the claim petition is not maintainable and is liable to be dismissed.
The claim petition is dismissed as not maintainable on the ground of limitation".
Thereafter, the petitioner has filed a review petition which was also dismissed by order dated 4.7.2009, which reads as under:-
"None is present on behalf of petitioner, hence review application is hereby rejected".
We have heard learned counsel for the parties and gone through the record.
Whether the action on the part of the State Public Service Tribunal dismissing the claim petition filed by the petitioner on the ground of limitation is correct or not, answer to this Court is fully covered by the judgment of the division Bench of this Court passed in the case of Karan Kumar Yadav versus U.P. State Public Services Tribunal and others reported in 2008 2 AWC1987All. The relevant paras of the said judgment are extracted below :-
"11. Section 5 (1) (b) of the U. P. Public Services (Tribunal) Act, 1976 reads as follows:
"5 (1) (b). The provisions of the Limitation Act, 1963 (Act 36 of 1963) shall mutatis mutandis apply to reference under Section 4 as if a reference were a suit filed in civil court so, however, that-
(i) notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year
(ii) in computing the period of. limitation, the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor) in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded."
12. Section 5 (1) (b) aforesaid lays down the applicability of Limitation Act and confines it to the reference under Section 4 of the Act, 1976 as if a reference was a suit filed in the civil court. This leaves no doubt that a claim petition is just like a suit filed in the civil court and in the suit the period of limitation cannot be extended by applying the provisions of Section 5 of the Limitation Act. Sub-clause (i) of Section 5 of the Tribunal's Act, specifically provide limitation for filing the claim petition, i.e., one year and in sub-clause (iij the manner in which the period of limitation is to be computed has also been provided.
13. Section 5 of the Limitation Act, reads as under:
"Extension of prescribed period in certain case.-Any appeal or 'any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient case for not preferring the appeal or making the application within such period.
Explanation.-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this Section." .
14. Its applicability is limited only to application/appeals and revision. It hardly requires any argument that Section 5 does not apply to original suit, consequently it would not apply in the claim petition. Had the Legislature intended to provide any extended period of limitation in filing the claim petition, it would not have described the claim petition as a suit, filed in the civil co.urt in Section 5 (1) (b) and/or it would have made a provision in the Act giving power to the Tribunal, to condone delay, with respect to the claim petition also.
15. In view of the aforesaid provision of the Act and the legal provision in respect to the applicability of Section 5 of the Act, it can safely be held that the application for condonation of delay in filing a claim petition would not be maintainable nor entertainable. The Tribunal will cease to have any jurisdiction to entertain any claim petition which is barred by limitation which limitation is to be computed in accordance with the provisions of the Tribunal's Act itself and the rules framed thereunder."
In view of the above said position of law, we do not find any infirmity in the impugned judgment and order dated 11.3.1997 passed by the State Public Services Tribunal, Lucknow. The impugned judgment and orders under challenge in the present writ petition lacks merit. The writ petition is accordingly dismissed. No order as to cost.
Order Date :- 3.12.2019 kanhaiya