A division bench of Justice Vipin Sanghi and R.C. Khulbe of Uttarakhand HC allowed the special appeal and set aside the order passed by the learned single judge on the ground of limitation. This court admitted the petitioner’s claim and directed the respondents to decide the appellant’s appeal / representation dated 26.05.2004 on its merits, without going into the issue of limitation. In the opinion of this court, there are no penal consequences attached if the appeal was not preferred within 90 days.
Facts:
The appellant had preferred the present Special Appeal aggrieved by the order dated 29.09.2022 passed by the learned Single Judge in Writ Petition (S/S) No. 1904 of 2022. The appellant had preferred the said writ petition primarily to seek a direction to the respondents to reconsider the punishment awarded by respondent No.3 of denying him three annual increments, and for sanctioning of the third financial up gradation to the petitioner. He had also sought a direction to respondent No. 2 to decide his representation dated 02.07.2022. It appeared that the appellant represented to the higher authorities against the punishment inflicted upon him on 26.05.2004. This was evident from the communication dated 02.08.2004, which makes a reference to the representation submitted by the appellant against his punishments. On 18.03.2008 and 26.07.2008 inter-departmental communications were issued by the Principal, Government Girls Polytechnic, Almora to the Director, Technical Education.
On 11.05.2020, the Additional Director rejected the representation of the appellant on the ground that he had not preferred his appeal within 90 days of the order of punishment being issued in terms of Rule 11 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003. However, even thereafter, the Department continued to consider the appellant’s representation. In this regard, the appellant filed, along with his writ petition, the interdepartmental communication dated 11.08.2020 and 16.02.2021.
Observations of the Court
This Court after the perusal of the impugned order noticed that what requires examination is whether the appeal, by whatever name preferred-call it representation or a letter, to the higher authority to raise a grievance on the infliction of punishments, could be considered as an appeal. As per the records the respondents themselves took their own sweet time to deal with the aforesaid appeal / representation, which was preferred way back on 26.05.2004. The same was rejected only on 11.05.2020, ironically, on the ground of limitation.
It was not the case of the respondents that the said limitation prescribed in the Rules is strict and cannot be relaxed. There is no definite consequence provided in the Rules, to say that if the appeal is not preferred within the period of 90 days, the same cannot be preferred thereafter, or the right to prefer the appeal would stand forfeited. No penal consequence was brought in the notice of the court, if the appeal were not to be preferred within 90 days.
As noticed hereinabove, even after 11.05.2020, departmental communications on the consideration of the appellant’s representation / appeal continued to be undertaken, including calling for, and submission of comments, to the points raised by the appellant in his representation / appeal.
Therefore, this court came to the view that the learned Single Judge was not justified in dismissing the writ petition on the ground that the appellant had not availed of his remedy under the Rules in time as single judge bench was unmindful of the fact that the appellant had preferred his appeal / representation as early as on 26.05.2004.
Decision:
The present special appeal was disposed of with a direction to the respondents to decide the appellant’s appeal / representation dated 26.05.2004 on its merits, without going into the issue of limitation.
Case: Girish Chandra Joshi vs State of Uttarakhand and others
Citation: IA DELAY CONDONATION APPLIATION NO. 1 OF 2022 IN SPECIAL APPEAL NO. 382 OF 2022
Coram: Justice Vipin Sanghi and R.C. Khulbe
Dated: 23.11.2022
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