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IN THE HIGH COURT OF ALLAHABAD
ATTAU RAHMAN MASOODI, BRIJ RAJ SINGH, JJ.
Murad Ahsan – Appellant
Versus
State Of U.P. Thru. Prin. Secy. P.W.D. Lko. – Respondent
Writ A.No.21121 of 2020
Decided on : 12-04-2022
U.P. Public Service (Tribunal) Act, 1976 - Section 5 (1) (b) (ii), 4 (5), 4(6) and 4(7) - U.P. Government Servant (Discipline and Appeal) Rules, 1999 - Rule 14 – Challenged judgment and order – Quash order - Petitioner was initially appointed on post of Assistant Engineer after qualifying regular selection procedure for appointment and joined his services – 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(Para 15).
Findings of the Court :
Court are of view that cause of action shall be taken to arise not from date of original adverse order but on date when order of 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 - Court, however, make it clear that this principle may not be applicable when remedy availed of has not been provided by law - Repeated unsuccessful representations not provided by law are not governed by this principle - It is pointed out here that petitioner was present during hearing of application for interim relief that is why State has taken objection regarding maintainability of reference application Court hold that reference petition was not maintainable as on ground of limitation, therefore, on application for interim relief question of maintainability was rightly considered by Tribunal.
Result - Writ petition dismissed.
JUDGMENT :
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 befor
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