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IN THE HIGH COURT OF ALLAHABAD
Rajan Roy, Ravi Nath Tilhari, JJ.
Devendra Kumar Mishra – Petitioner
Versus
State Of U.P. Thru.Prin.Secy.Home & Ors. – Respondents
Service Bench No. 1426 of 2021
Decided On : 07-09-2021
U.P. Public Services (Tribunals) Act, 1976 - Sections 2(b),2(1),2(3),4,5,5(1 )(b)(i) - Indian Evidence Act, 1872 - Sections 123,124 - Administrative Tribunals Act,1985 – Section 20,20(1),20(2),20(3) - U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 - Rules 14(2),4(1)(b)(iv),25,20,23 - Preliminary enquiry - Post of Constable Civil Police - Penalty of ‘censure’ - Petitioner was appointed on post of Constable Civil Police and during his posting at Lucknow Police Line a preliminary enquiry was held and in view of preliminary inquiry report petitioner was served with a Show Cause Notice under Rule 14 (2) of U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 for imposing penalty of ‘censure’ under Rule 4 (1) (b) (iv) of Rules, 1991 - Petitioner filed reply - Whether to sit in public or in private - Whether by way of injunction or stay or in any other manner shall be passed by tribunal on or in any proceedings relating to any reference unless - Whether by way of injunction or stay or in any other manner - Whether it should be disposal of one appeal or entire hierarchy of reliefs as may have been provided.
Finding of the court: A perusal of Rule 25 of the Rules, 1991 shows that notwithstanding anything contained in the Rules, 1991 the Government may on its own motion or otherwise call for and examine the records of any case decided by authority subordinate to it in the exercise of any power conferred on such authority by the Rules, 1991 and against which no appeal has been preferred under these Rules. We emphasize the expression “against which no appeal has been preferred under the Rules, 1991”- Court view that cause of action shall be taken to arise not from date of original adverse order but on date when order of the higher authority where a statutory remedy is provided entertaining appeal or representation is made and where no such order is made though remedy has been availed of a six months' period from date of preferring of appeal or making of representation shall be taken to be date when cause of action shall be taken to have first arisen - Thus on a conjoint reading of Sections 4 and 5 (1) (b) of Act it is making evident that if a remedy has been availed under statutory service rules and final orders are passed therein limitation will be counted from date of passing of final order and not from date of passing of original order - Court now proceed to consider merit of submission of petitioner’s counsel that as representation was filed under rule 25 of the Rules, 1991 claim petition filed was not barred by limitation - Court view that remedy under Rule 25 of Rules, 1991 not being available to petitioner claim petition, admittedly filed after six years of order of rejection of petitioner’s revision was barred by limitation under Section 5 (1) (b) of Act, 1976 .
Result: Writ petition dismissed.
JUDGMENT :
Ravi Nath Tilhari, J
1. Heard Sri Suresh Chandra Tiwari, learned counsel for the petitioner and Sri Manjeev Shukla, learned Additional Chief Standing Counsel appearing for opposite parties.
2. The writ petition has been filed challenging inter alia the judgment and order dated 06.02.2020 passed by the State Public Service Tribunal, Lucknow in reference No. 896 of 2019: Devendra Kumar Mishra Vs. State of U.P. and others, by which the reference/claim petition filed by the petitioner was rejected being barred by limitation. The prayers made in the petition are as under :
ii. Issue a writ order or direction in the nature of mandamus commanding and directing opposite parties to consider the case of the petitioner for promotion on the post of Head Constable in the interes of justice.
iii. Issue a writ order or direction which deemed fit and proper may kindly be passed in favour of the petitioners.
iv. Allow the writ petition with costs.”
3. The petitioner was appointed on the post of Constable Civil Police on 01.01.1987 and during his posting at Lucknow Police Line, a preliminary enquiry was held and in view of the preliminary inquiry report dated 03.11.2021, the petitioner was served with a Show Cause Notice dated 23.12.2011 under Rule 14 (2) of the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (herein after referred to as “Rules, 1991”) for imposing the penalty of ‘censure’ under Rule 4 (1) (b) (iv) of the Rules, 1991. The petitioner filed reply dated 09.01.2012.
4. Another Show Cause Notice dated 24.01.2012 was issued on the same charges for imposing fine equivalent to one month salary under Rule 4 (1) (b) (ii) of the Rules, 1991 against which the petitioner filed reply dated 08.02.2012. The Additional Superintendent of Police, Traffic, Lucknow vide order dated 05.05.2012 imposed the penalty of fine equivalent to one month salary. The petitioner preferred departmental appeal, which was dismissed on 29.09.2012 and his revision against this order was also rejected on 14.03.2013 by the Inspector General of Police, Lucknow Zone, Lucknow. Thereafter, the petitioner had filed a representation dated 10.01.2019 under Rule 25 of the Rules, 1991 and during its pendency, the petitioner filed Reference No. 896 of 2019 which has been rejected by the U.P. State Public Service Tribunal, as barred by limitation.
5. Learned counsel for the petitioner has submitted that as the petitioner had preferred representation on 10.01.2019 as provided by rule 25 of the Rules, 1991, the claim petition filed on 27.05.2019 was within the period of limitation of one year as provided under Section 5 (1) (b) (i) of the U.P. Public Services (Tribunals) Act, 1976 (in short “Act, 1976) and as such the Tribunal erred in rejecting the reference as barred by limitation.
6. Sri Manjeev Shukla, learned Additional Chief Standing Counsel has submitted that the claim petition was filed on 27.05.2019 whereas the petitioner’s revision was dismissed on 14.03.2013 and as such the claim petition was preferred after more than six years. The claim petition was highly time barred and has been rightly rejected by the Tribunal. He further submitted that mere filing of representation under Rule 25 of the Rules, 1991 would not extend the period of limitation nor would it revive a stale claim. The representation, itself, was filed in the year 2019 and was also not maintainable nor permissible under Rule 25 of the Rules, 1991, as the petitioner had already availed the remedy of appeal whic
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