Allahabad High Court
Murad Ahsan vs State Of U.P. Thru. Prin. Secy. P.W.D. ... on 12 April, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 21.03.2022 Delivered on: 12.04.2022 Case :- WRIT - A No. - 21121 of 2020 Petitioner :- Murad Ahsan Respondent :- State Of U.P. Thru. Prin. Secy. P.W.D. Lko. Counsel for Petitioner :- Shireesh Kumar Counsel for Respondent :- C.S.C. Hon'ble Attau Rahman Masoodi,J.
Hon'ble Brij Raj Singh,J.
(Per: Brij Raj Singh,J.)
1. The petitioner has challenged the judgment and order dated 13.10.2020 passed by the Uttar Pradesh State Public Services Tribunal, Lucknow and further prayer is made to quash the order dated 03.04.2018, which is the punishment order of censure entry.
2. It is also mentioned that this punishment order was challenged before the U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as "the Tribunal") and the Tribunal has dismissed the reference on the ground of limitation.
3. Brief facts of the case are that the petitioner was initially appointed on the post of Assistant Engineer after qualifying the regular selection procedure for appointment and joined his services on 27.08.1997. The disciplinary enquiry was instituted against the petitioner vide order dated 24.07.2017 and a charge sheet was issued. The petitioner submitted reply of the said charge sheet dated 16.08.2017 by denying all the charges. After conducting the enquiry by the Enquiry Officer, the order of punishment of censure entry was passed on 03.04.2018.
4. Aggrieved with punishment order dated 03.04.2018, the petitioner submitted a memorial before his Excellency, the Governor on 04.07.2018 and thereafter he sent reminder on 28.01.2020. The petitioner being aggrieved with the punishment order dated 03.04.2018 instituted a Reference Application No.331 of 2020 before the Tribunal. The reference was admitted on 04.03.2020, however, no detailed order was passed regarding the admission simply notices were issued to the opposite parties and reference was admitted. The application for interim relief was heard by the Tribunal on 25.08.2020 and thereafter the application for interim relief was objected by the State and objection was filed on 18.09.2020 on the question of maintainability of the reference application. The State had taken objection against the application for condonation of delay and it was pleaded on behalf of the State that petition was not maintainable as reference was time barred. The Tribunal initially heard the matter on 18.09.2020 on the point of maintainability and the reference was dismissed as not maintainable by the impugned judgment dated 13.10.2020 and observation was made that reference was time barred. Being aggrieved against the order dated 13.10.2020 the writ petition has preferred.
5. Sri Shireesh Kumar, learned counsel for the petitioner has made submission that the arguments were heard on the application for interim relief and not on the point of maintainability of the reference application. He has further submitted that the reference petition was already admitted by the order dated 04.03.2020 and the objection against the interim relief submitted by the opposite party could not have been considered for deciding the reference application on the ground of maintainability.
6. Learned counsel for the petitioner has further submitted that Section 5 (1) (b) (ii) provides for computing the period of limitation and according to this, 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 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.
7. Learned counsel for the petitioner has further submitted that Section 4 (7) introduced vide U.P. Act No.5 of 2000 provides that for the purposes of sub-sections (5) and (6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial. The petitioner has submitted that undisputedly he has availed the remedy of memorial before his Excellency the Governor and no decision on it has been communicated to him till date.
8. Heard Sri Shireesh Kumar, learned counsel for the petitioner, learned Standing Counsel for the State-respondent and perused the judgment of the U.P. State Public Services Tribunal, Lucknow.
9. After looking into the record, it is found that the punishment order of censure entry was awarded on 03.04.2018. The petitioner filed memorial before his Excellency the Governor on 04.07.2018 and thereafter, he sent reminder on 28.01.2020. Sub-section (5), (6) and (7) of Section 4 of the U.P. Public Service (Tribunal) Act, 1976 (hereinafter referred to as the "Act, 1976") is quoted below:-
"(5) The Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances.
(6) For the purpose of Sub-Section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance:
Provided that where no final order is made by the State Government, authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him (7) For the purpose of sub-section (5) and (6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial."
10. Sub Section 6 clearly indicates that for the purpose of sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or Officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance. In case of the petitioner, against the punishment order dated 03.04.2018 no remedy was available to the petitioner except review as provided in Rule 14 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "the Rules, 1999") .
11. There is no provision of memorial before his Excellency the Governor, which was availed by the petitioner. As per his case, the proviso of sub-section (7) of Section 4 is also relevant wherein it is provided that for the purpose of sub-sections (5) and (6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies. It is thus clear that memorial before his Excellency the Governor, is no remedy available to the petitioner under the Rules, 1999, as remedy for his grievance.
12. Section 5 (1) (b) (i) and (ii) of the Act, 1976, are also relevant and the same are quoted below:-
"[(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:
Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under Section 4 may be made within the period prescribed by the Act, or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) act, 1985 whichever period expires earlier:
Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Services (Tribunal) (Amendment) Act, 1985, shall affect any references made before and pending at the commencement of the said Act."
13. The period of limitation for reference is one year prescribed in the Schedule of the Act. Section 5 (ii) clearly putting bar for the remedy of memorial to the Governor wherein it is provided that in computing the period of limitation the period beginning with date on which the public servant makes a representation or prefers an appeal, revision, or any other petition after not being a memorial to the Governor was in accordance with law or orders regulating his condition of service and nothing with the date on which such public servant has knowledge of final orders passed on such representation, appeal, revision or petition as the case may be shall be excluded.
14. In the case of Vivekanand Singh and another Vs. State of U.P. and another in W.P. No.444 (SB) of 2015 decided on 29.05.2015, provisions of Section 5 (1) (b) (i) of the Tribunal Act, 1976, has been considered. Learned Tribunal has recorded finding relying upon exposition of law, in para 6 of the judgment by observing that the petitioner should have filed claim petition on the expiry of six months from the date of filing of appeal on 09.09.2008. The limitation period for filing claim petition, after lapse of six months, has expired on 08.03.2009. The petitioner filed the claim petition on 20.12.2010, which was highly time barred. The present case is also highly time barred as the impugned punishment order was passed on 03.04.2018 and claim petition was filed on 04.03.2020.
15. On the point of limitation, Hon'ble Apex Court in the case of Karnataka Power Corpn. Ltd. v. K. Thangappan, reported in (2006) 4 SCC 322, has held in para 6, 7 and 10 as under:-
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out inDurga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co.v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] . Sir Barnes had stated:
"Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [(1967) 2 SCR 70 : AIR 1967 SC 993] . This was reiterated in Rabindranath Bose case [(1970) 1 SCC 84 : AIR 1970 SC 470] by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 : AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik [(1976) 3 SCC 579 : 1976 SCC (L&S) 468 : AIR 1976 SC 1639] also.)"
16. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
17. In the present case, it is found that the petitioner had no statutory remedy rather he preferred memorial to his Excellency the Governor. We, therefore, uphold the order of the Tribunal and the reference application was barred by limitation, therefore, it was not maintainable. The petitioner has submitted that the reference was admitted on 04.03.2020, therefore, the question of maintainability was not open. We are unable to persuade ourselves with the said argument because the point of maintainability has to be decided by reasoned and speaking order which has been done by the Tribunal. The order of admission dated 04.03.2020 was simplicitor order but the point in issue was not decided by reasoned and speaking order. Hon'ble the Supreme Court in the case of Director General of Police, Central Reserve Police Force, New Delhi and others Vs. P.M. Ramalingam, (2009) 1 SCC 193 has observed in para 9 that without deciding the question of maintainability of review petition, the interim order could not have been passed. Para 9 of the said judgment is quoted below:-
"9. As rightly submitted by learned counsel for the appellants, the High Court could not have passed the interim order which virtually means allowing the review petition, without deciding the question of maintainability of the review petition. Such a course is not permissible in law."
18. In the present case, it is pointed out here that the petitioner was present during hearing of the application for interim relief that is why the State has taken objection regarding maintainability of the reference application we hold that reference petition was not maintainable as on the ground of limitation, therefore, on the application for interim relief question of maintainability was rightly considered by the Tribunal.
19. In view of the aforesaid legal discussion, we are unable to persuade ourselves to the arguments advanced by learned counsel for the petitioner. The writ petition is dismissed accordingly.
20. No order as to costs.
Order Date:- 12.04.2022
Atul
(Brij Raj Singh, J.) (Attau Rahman Masoodi, J.)