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1994 Supreme(All) 671
HIGH COURT OF ALLAHABAD
D.S.Sinha
KRIPA SHANKER AWASTHI
Versus
NAGARPALIKA BINDID FATEHPUR
Decided On : 06 October 1994
C. M. W. P. No. 36475 of 1994
K.P.AGARWAL,
A municipal employee is obliged to exhaust the alternative remedy of departmental appeal before instituting a suit against an order of dismissal, and failure to do so renders the suit not maintainable.
Headnote:
MUNICIPALITIES ACT - SECTION 76, RULE 3 OF THE U. P. MUNICIPAL SERVANTS APPEALS RULES, 1967, REGULATION 22 OF THE MUNICIPAL SERVANTS CONDUCT REGULATIONS - DISMISSAL OF EMPLOYEE - EXHAUSTION OF ALTERNATIVE REMEDY - ADMISSION OF GUILT - OPPORTUNITY TO DEFEND - VALIDITY OF DISMISSAL ORDER.
Fact of the Case:
The petitioner, a Class-IV employee of the Nagar Palika, was dismissed from service by the President of the Nagar Palika under Section 76 of the U. P. Municipalities Act, 1916. The petitioner challenged the dismissal order by filing a suit in the civil court, which was later transferred to the U. P. Public Services Tribunal. The Tribunal upheld the dismissal order, holding that the petitioner had not exhausted the alternative remedy of departmental appeal and that he had admitted his guilt and was given sufficient opportunity to defend himself.
Finding of the Court:
The court held that the petitioner was obliged to file an appeal against the dismissal order under Rule 3 of the U. P. Municipal Servants Appeals Rules, 1967, before instituting the suit in view of Regulation 22 of the Municipal Servants Conduct Regulations. The court also found that the petitioner had admitted his guilt and was given sufficient opportunity to defend himself.
Issues: 1. Whether the petitioner was obliged to exhaust the alternative remedy of departmental appeal before instituting the suit. 2. Whether the petitioner had admitted his guilt. 3. Whether the petitioner was given sufficient opportunity to defend himself.
Ratio Decidendi: 1. The court held that the petitioner was obliged to exhaust the alternative remedy of departmental appeal before instituting the suit in view of Regulation 22 of the Municipal Servants Conduct Regulations, which mandates that no servant shall attempt to seek in a court of law a decision on grievances arising out of his employment or conditions of service without first exhausting the normal official channels of redress. 2. The court found that the petitioner had admitted his guilt based on his explanation submitted in response to the charge-sheet, in which he stated that he had committed the mistake unknowingly and prayed for pardon. 3. The court found that the petitioner was given sufficient opportunity to defend himself based on the fact that he was served with the charge-sheet, filed an explanation, was provided with a copy of the enquiry report along with a notice to show cause, and failed to show cause.
Final Decision: The court dismissed the petition, holding that the impugned order and judgment of the Tribunal was perfect and did not suffer from any infirmity.
Heard Sri K. P. Agrawal, learned Senior Advocate appearing for the petitioner and Sri G. C. Pant, learned counsel representing the respondent No. 1 Nagar Paiika, Bindki, district Fatehpur through its Chairman, hereinafter referred to as the Nagar Paiika.
2. This petition, under Article 226 of the Constitution of India, is directed against the order and judgment dated 6th September, 1979 passed by the U. P. Public Services Tribunal 2nd, Lucknow, hereinafter called the Tribunal, in Claim Petition No. 92i/t/ (l)/77/248/75, Kripa Shanker Awasthi v. Nagar Paiika, Bindki and others, whereby the dismissal of the services of the petitioner by means of the order dated 6th January, 1975, passed by the President of the Nagar Paiika in exercise of powers conferred upon him under Section 76 of the U. P. Municipalities Act, 1916, hereinafter to be referred as Municipalities Act, has been upheld.
3. The petitioner was a Class-IV employee of the Nagar Paiika. By order dated 23rd October, 1974, he was suspended on certain charges of misconduct. Thereafter, the charge-sheet dated 3rd November, 1974 was served upon the petitioner by the Executive Officer of the Nagar Paiika appris ing him of the charges and the evidence sought to be relied upon in support of the charges, and calling upon him to produce his defence, if any. A copy of the said charge-sheet is Annexure 2 to the petition The petitioner res ponded to the charge-sheet and submitted his explanation dated 6th Novem ber, 1974 stating therein that he had not committed the mistake deliberately and pleading for pardon if found guilty. A copy of the explanation is Annexure 3 to the petition. The Executive Officer, who was, it appears, inquiring into the matter, submitted a report dated 28th November, 1974 to the President of the Nagar Paiika, a copy whereof is Annexure 4 to the petition. According to the Executive Officer, the charge against the petitioner was approved.
4. Later on, by means of his order dated 3rd December. 1974, a copy whereof is Annexure 5 to the petition, the President of the Nagar Paiika informed the petitioner that the charges against him were fully proved, and called upon him to show cause as to why he should not be dismissed from service. Along with the order dated 3rd December, 1974 the petitioner was also supplied copy of the report of the Inquiry Officer dated 28th November, 1974. The petitioner did not show cause. Eventually, the President passed the order dated 6th January, 1975 dismissing the petitioner from service.
5. Challenging the order of dismissal from service dated 6th January, 1975 the petitioner instituted in the court of the Munsif, Fatehpur Suit No. 248 of 1975 seeking a declaration to the effect that the order of dismissal dated 6th January, 1975 was null and void. The Nagar Palika filed its written statement in answer to the plaint of the petitioner.
6. Upon enforcement of the U. P. Public Services (Tribunals) Act, 1976 (hereinafter called the Act) the suit of the petitioner was abated, and record thereof was transferred to the Tribunal for deciding it in the same manner as if it was a claim petition referred to under Section 4 of the Act. The Tribunal adjudicated upon and decided the claim of the petitioner for declaration of the dismissal order dated 6th January, 1975 to be null and void by its order and judgment dated 6th September, 1979, impugned herein.
7. Learned counsel for the petitioner submits that the impugned order and judgment is liable to be set aside on the grounds that the view of the Tribunal that the suit of the petitioner was not maintainable as he had not availed the alternative remedy of departmental appeal is incorrect; and that the finding that the petitioner had actually admitted his guilt and that he had been given sufficient opportunity to defend himself cannot be sustained as there is no material to support the same. On the other hand, the learned counsel representing Nagar Palika, Bindki submits that in v
