Allowed

State of U.P. Thru. Secy. Home Lko. and 2 Others v. Smt. Pushpa Devi and 2 Others

Allahabad HC14 Mar 2023/3221/2022

Case brief

AI extract

What is this about?

Writ petition challenging Tribunal orders allowing a Claim Petition filed beyond limitation due to non-compliance with service rules regarding appeal filing and the notice period for deemed exhaustion of remedies. The Court allowed the writ, setting aside the Tribunal's orders.

What did the court decide?

Writ petition allowed; Orders dated 06.07.2021 and 18.11.2021 passed by the Tribunal are set aside with no order as to costs.

State of U.P. Thru. Secy. Home Lko. and 2… — Pension and Retirement Benefits | Allahabad HC (2023)

Reserved

Court No. - 2

Case :- WRIT - A No. - 3221 of 2022

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Petitioner :- State Of U.P. Thru. Secy. Home Lko. And 2 Others Respondent :- Smt. Pushpa Devi And 2 Others Counsel for Petitioner :- C.S.C.

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Counsel for Respondent :- Gaurav Upadhyay, Manish Misra

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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This petition under Article 226 of the Constitution of India has been filed by the State-authorities challenging an order dated 06.07.2021, passed by the U.P. State Public Services Tribunal, Lucknow (hereinafter referred to as ‘Tribunal’) whereby the Review Petition No.06 of 2018 filed against the order dated 03.01.2018 dismissing the Claim Petition No.595 of 2005 has been allowed and the judgment and order dated 03.01.2018 passed earlier by the Tribunal dismissing the Claim Petition has been recalled.

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Further, challenge to the judgment and order dated 18.11.2021, passed by the Tribunal allowing the Claim Petition No. 595 of 2005 has also been made in these proceedings.

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Heard Sri Amitabh Rai, learned Additional Chief Standing Counsel for the petitioners-State authorities and Sri Manish Misra, learned counsel for the respondents.

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The predecessor-in-interest of the respondents herein, one Padam Singh (deceased) was working as Constable in Provincial Armed Constabulary (PAC) against whom disciplinary proceedings were initiated which culminated in order of dismissal passed by the authority concerned on 30.06.1999.

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It is the case of the petitioners-State-authorities that late

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Padam Singh did not challenge the order of dismissal dated 30.06.1999 by instituting statutory appeal available to him under Rule 20 of the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991(herein after referred to as ‘Punishment and Appeal Rules, 1991’) and with substantial delay straight away challenged the order of dismissal by filing Claim Petition No.595 of 2005. As per learned State Counsel, the Claim Petition No. 595 of 2005 was preferred by late Padam Singh with an assertion that he had filed appeal against the dismissal order dated 30.06.1999, however, the said contention on behalf claimant was denied by the State-authorities by filing written statement.

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Claim Petition No.595 of 2005 was dismissed by the Tribunal by means of order dated 03.01.2018 wherein the learned Tribunal observed and gave finding that the claimant did not prefer the appeal against the dismissal order to the appellate authority under Rule 20 of Punishment and Appeal Rules, 1991 and further that there was no material which was available before the Tribunal which could establish that while preferring the appeal against the dismissal order, claimant had followed the provisions of Rule 20(5) of Punishment and Appeal Rules, 1991.The Tribunal, thus, dismissed the appeal giving the finding that the Claim Petition was preferred beyond limitation as prescribed in the U.P. Public Services (Tribunal) Act, 1976 (herein after referred to as ‘1976 Act’ and hence it was not maintainable.

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However, the successors-in-interest of claimant/respondent filed a Review Petition No. 06 of 2018 challenging the aforesaid order dated 03.01.2018 which has been allowed by the Tribunal by means of the impugned order dated 06.07.2021 setting aside

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the judgment and order dated 03.01.2018 and listing the Claim Petition for hearing on merits. Thereafter, the Tribunal heard the Claim Petition finally and allowed the same by means of judgment and order dated 18.11.2021.

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It is the aforesaid two orders dated 06.07.2021 and 18.11.2021, passed by the Tribunal which are under challenge before us in this writ petition. 9. The first and foremost question which requires consideration by us in this writ petition is as to whether the view taken by the learned Tribunal while passing the order dated 06.07.2021 in Review Petition No. 6 of 2018 holding that Claim Petition filed by the claimant was within the limitation period, is correct or not. We shall first address this issue.

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Section 4 of the U.P. Public Services (Tribunal) Act, 1976 provides that if a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter may file a Claim Petition to the Tribunal for the redressal of his grievance. Sub-section (5) of Section 4 provides that the Tribunal shall not ordinarily admit the claim petition unless it is satisfied that the person approaching the Tribunal has availed of all the remedies under the relevant service rules, regulations or contract for redressal of his grievances.

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Sub-section (6) of Section 4 provides that for the purpose of sub-section (5) a public servant shall be deemed to have availed of all the remedies if a final order has been made by the State Government or by an authority or officer or by the person competent to pass such order rejecting any appeal preferred or representation made by such public servant under Service rules or regulations or contract. Proviso appended to sub-section (6) of Section 4 provides that in case no final order has been made on

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the appeal or representation preferred within six months from the date on which such appeal was preferred or representation was made, the public servant has to give a written notice by registered post requiring the competent authority to pass the order and if the order is not passed within one month of service of such notice, the public servant shall be deemed to have availed of all the remedies available to him.

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Thus, as per scheme of Section 4 of 1976 Act, the Tribunal assumes jurisdiction to consider and decide the claim petition only against an order is passed by the authority concerned and omission or inaction of the authority concerned to pass the order is also to be construed an order for the purposes of Sub-section (1) of Section 4. The Tribunal, under Sub-section (5) of Section 4 shall not admit any claim petition unless public servant approaching the Tribunal has availed of all the remedies available to him under the relevant service rules, regulations or contract. Sub-section (6) of Section 4 provides that a public servant shall be deemed to have availed of all the remedies available to him for the purposes of Sub-section (5) if a final order is made by the authority concerned rejecting the appeal or representation made by the public servant. However, if no final order is made by the competent authority in respect of the appeal or representation preferred by the public servant within six months from the date an appeal or representation is made, the public servant needs to require the competent authority, by written notice by registered post, to pass order and if the order is not passed within one month of service of such notice, the person concerned shall be deemed to have availed of all the remedies available to him under the service rules, regulations or contract.

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If we consider the facts of this case, what we find is that the

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Claim Petition was preferred by the claimant against the order of dismissal dated 30.06.1999 by making an assertion that he had filed an appeal against the said order of dismissal on 12.07.1999, a copy of the memorandum of such appeal dated 12.07.1999 was annexed by the claimant with the Claim Petition which also carried a postal receipt dated 12.07.1999. However, what is noticeable is that the said appeal was not filed by the claimant as per the requirement of Rule 20 of Punishment and Appeal Rules, 1991 which requires that every police officer against whom punishment order has been passed shall be entitled to prefer an appeal, however, such appeal shall be submitted through the Superintendent of Police of the District or in the case of police officers not employed in district work through the head of office to which appellant belongs or belonged. Sub-rule (5) of Rule 20 of the Punishment and Appeal Rules quoted herein below :

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“20(5). Every appeal, whether the appellant is still in service of Government or not, shall be submitted through the Superintendent of Police of district or in the case of Police Officers not employed in district work through the head of the office to which the appellant belongs or belonged.”

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From a perusal of the memorandum of appeal dated 12.07.1999 said to have been filed by the claimant, it is clear that the same was not filed in terms of the provision contained in Rule 20(5) of Punishment and Appeal Rules, 1991. A categorical denial was made before the learned Tribunal by the petitioners-State authorities that the appeal against the dismissal order was not filed.

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Considering the aforesaid aspects of the matter, the Tribunal by means of the judgment and order dated 03.01.2018 initially dismissed the Claim Petition by observing that reference of the

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claim was not maintainable being barred by Section 4 of 1976 Act. Learned Tribunal, however, reviewing the said judgment dated 03.01.2018 passed the order dated 06.07.2021, which is under challenge herein, by observing that if the statutory appeal or representation is kept pending for years together and no order is passed within six months from the date such appeal is filed, the Tribunal had not to reject the Claim Petition. Such finding, in our considered opinion, is against the records for the reason that the alleged appeal dated 12.07.1999 cannot be said to have been appropriately filed as the same, if filed at all, was in breach of the requirement of Rule 20(5) of the Punishment and Appeal Rules, 1991.

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There is yet another fact which is relevant for consideration of this issue. According to claimant himself, he filed the Claim Petition on 10.06.2005 after giving notice to the appellate authority dated 13.05.2005 requiring him to pass the order on appeal. What we, however, notice is that the notice by the claimant for deciding the alleged appeal filed by him against the dismissal order was given after sufficient lapse of time i.e. after about six years from the date the appeal was allegedly preferred by him.

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Learned counsel for the respondents has relied upon the judgment of a Division Bench of this Court in the case of Samarjeet Singh Vs. State of U.P. and others, reported in [2006(24) LCD 122], wherein it has been held that failure on the part of appellate authority or the authority who is to decide the appeal or representation cannot defeat the right of claimant to vindicate his right by approaching the Tribunal and such right cannot be frustrated in that manner. Reliance has also been placed by the learned counsel for the respondents on the judgment

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rendered by this Court in the case of Vidya Sagar Rai Vs. U.P. Public Service Tribunal IV, Lucknow and others, decided on 08.08.1980 (Writ Petition No. 815 of 1989), wherein it has been observed that when no decision was taken by the Government despite the petitioner of the said writ petition having waited for sometime, he made representation to the Government and yet the Government did not tell him that his representation shall be considered and that on account of prolonged silence of the Government over the representation made by the petitioner in the said case, it was held that the decision of the Tribunal that the Claim Petition was barred by time, cannot be sustained.

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Learned counsel for the respondents also relies on the judgment in the case of Union of India Vs. Tarseem Singh, reported in (2008) 8 SCC, 648, wherein it has been held that delay in filing the petition is not material in case claim relating to continuing wrong is made and in such a situation relief can be granted despite the delay.

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Sri Manish Misra, learned counsel for the respondents has also relied upon yet another judgment of Hon’ble Supreme Court in the case of Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation, decided on 18.05.2022 (Civil Appeal No. 4134 of 2022), wherein it has been held that the law recognizes a ‘continuing’ cause of action which may give rise to a ‘recurring’ cause of action as in the case of salary or pension.

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When we examine the aforesaid judgments cited by the learned counsel for the respondents, what we find is that in the case of S.S. Rathore Vs. State of Madhya Pradesh, reported in (1989) 4 Supreme Court Cases 582 , it has been observed by Hon’ble Supreme Court that cause of action shall arise not from

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the date of the original adverse order but on the date when the order of the higher authority, where a statutory remedy is provided, is made and where no such order is made, though the remedy has been availed of, expiry of period of six months from the date of preferring of the appeal shall be taken to be the date when cause of action is said to have first arrived. Para 20 of the judgment in the case of S.S. Rathore (supra) is extracted herein below :

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“20. 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.

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It is to be noticed that though the judgment rendered in the case of S.S. Rathore(supra) was under the provision of the Administrative Tribunals Act, 1985, however, the provision in the said enactment is almost in pari materia to the provision of Section 4 of 1976 Act. Paragraph 22 in the case of S.S. Rathore (Supra) is extracted herein below :

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“22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or

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representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation”.

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We also notice that a Division Bench of this Court in the case of Vachaspati Dixit Vs. State of U.P. and another, reported in[2018(4) ADJ 375 (DB)(LB)] while taking into consideration the judgment relied upon by the learned counsel for the respondents in the case of Samarjeet Singh (Supra) has relied upon the judgment of Supreme Court in the case of S.S. Rathore (Supra) and followed the dictum laid down in the said case of S.S. Rathore (Supra) .

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We may refer to yet another judgment of Division Bench of this Court rendered on 29.05.2015 in the case of State of U.P. and other Vs. Vivekanand Singh and others, reported in Manu/UP/1557/2015, wherein the provisions contained in Sections 4 and 5(1)(b) of 1976 Act have been considered and the Division Bench has arrived to the following conclusion :

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“18. Thus, on a conjoint reading of Section 4 and 5(1)(b) of the Act it is evident that if a remedy has been availed under the statutory service rules and final orders are passed therein, the limitation will be counted from the date of passing of final order, and not from the date of passing of the original order. If the remedy has been availed, but no final order has been passed and a period of six months has expired from the date of availing such remedy, a one month's written notice may be given and on expiry of the said period it is to be deemed that the remedy as provided under the Rules had been availed by the public servant and a claim petition would be maintainable and the same would be treated within the limitation prescribed under Section 5(1)(b)(i), subject of course to the remedy having been availed within the period of limitation prescribed, if any, for the said purpose, prior to filing of the claim petition”.

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Thus, it is clear that if a remedy has been availed of under the statutory service rules or regulations and final orders have been passed, the limitation will be counted from the date of passing of final order and not from the date of passing of the original adverse order and if the remedy has been availed of but no final order has been passed and period of six months has expired from the date of availing such remedy, one month’s written notice is to be given and on expiry of the period of such notice it will be deemed that remedy as provided under the statutory service rules or regulations has been availed of and accordingly Claim Petition would be maintainable and the same shall be considered to be within the limitation prescribed under Section 5(1)(b) of the Act, 1976. Section 5(1)(b)(i) of 1976 Act provides that the period of limitation for filing of claim petition is one year.

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In the instant case, the order of dismissal was passed on 03.06.1999 and the statutory appeal under 1991 Punishment and Appeal Rules was allegedly filed on 12.07.1999. However, filing of said appeal has categorically been denied by the State authorities both before us and also before the learned Tribunal. Even otherwise, said appeal was not in conformity of the requirement of Rule 20(5) of the Punishment and Appeal Rules, 1991. We further notice that even if for the sake of the argument, it is presumed that the appeal dated 12.07.1999 was filed by the claimant, after expiry of period of six months he ought to have given one month’s notice as per requirement of proviso appended to Sub-section (6) of Section 4 of 1976 Act. In this case such notice was also given after a lapse of period of about five and half years from the date of submission of alleged appeal i.e. on 13.05.2005.

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From the aforesaid facts, it is clear that the Claim Petition filed by the claimant was specifically barred by limitation in case it was preferred after substantial time period from the date of order of dismissal.

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However, learned Tribunal while allowing the review petition by means of order dated 06.07.2021 has failed to address itself to the relevant provisions contained in Sections 4 and 5 of the Act, 1976. Tribunal has completely ignored the requirement of Rule 20(5) of 1991 Punishment and Appeal Rules. If the appeal was preferred by the claimant on 12.07.1999, it is also beyond comprehension as to why he waited for six long years to send the notice contemplated under the proviso appended to Sub-section (6) of Section 4 of 1976 Act. The said provision requires the government servant to give notice after expiry of period of six months from the date statutory appeal or representation is preferred against the original adverse order.

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In view of the discussions made and the reasons given above, we are not in agreement with the order dated 06.07.2021 whereby the Tribunal reviewed its judgment dated 03.01.2018 through which the claim petition filed by the claimant was dismissed being barred by limitation. Accordingly, we find that the order dated 06.07.2021, passed by the learned Tribunal is not sustainable.

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Once we have already noticed that the order passed by learned Tribunal in Review Petition No.06 of 2018, on 06.07.2021 is not sustainable, consequential determination of Claim Petition by means of judgment and order of the Tribunal, dated 18.11.2021 is also not sustainable.

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The writ petition is, thus, allowed and both the orders under challenge herein, namely, order dated 06.07.2021, passed by the

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learned Tribunal in Review Petition No.06 of 2018 and the order dated 18.11.2021, passed by the learned Tribunal in Claim Petition No. 595 of 2005 are hereby set aside.

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There will be no order as to costs.

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Order Date :- 14.03.2023 Sanjay

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Digitally signed by :- SANJAY PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Secy. Home Lko. and 2 Others v. Smt. Pushpa Devi and 2 Others

Case brief

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State of U.P. Thru. Secy. Home Lko. and 2 Others v. Smt. Pushpa Devi and 2 Others

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