The District Judge Lucknow ... vs Nar Singh Bihari Srivastava And ...
2015 Latest Caselaw 5602 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 4 
 

 
Case :- SPECIAL APPEAL No. - 414 of 2015
 
Appellant :- The District Judge Lucknow 1881(S/S)2011
 
Respondent :- Nar Singh Bihari Srivastava And Another
 
Counsel for Appellant :- Upendra Nath Misra,Gaurav Mehrotra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Attau Rahman Masoodi,J.

Heard Sri Gaurav Mehrotra, learned counsel for the appellant and Sri Asif Hasan who has put in appearance on behalf of the 1st respondent and the learned Additional Chief Standing Counsel for the 2nd respondent.

We had passed the following order on 24.11.2015 on the delay condonation application :-

"Heard Sri Gaurav Mehrotra, learned counsel for the appellant.

The appeal has been filed questioniong the correctness of the law laid down by the learned Single Judge while allowing the writ petition on a review application vide judgment dated 26.09.2014.

Learned counsel for the appellant Sri Mehrotra submits that the said judgment was delivered on a review application in the writ petition which had already been dismissed by the learned Single Judge on 25.07.2014. No notices were issued to the appellant on the review application and consequently the review petition came to be heard and allowed ex-parte on 26.09.2014.

The appellant contends that the said judgment came to the knowledge of the appellant only when Contempt Petition No. 786 of 2015 was filed by the respondent no.1 in which notices were issued on 24.04.2015. It is during the contempt proceedings that on an enquiry the appellant came to know about the writ petition having been dismissed at the inception/admission stage.

Without calling for any counter affidavit and being subsequently allowed on a review application. It is, thereafter, that  the appellant swung into action and after due deliberations with the High Court and carrying out the necessary  formalities has instituted this appeal, as such, the delay is sought to be explained accordingly.

This appeal was entertained by issuing notice on 15.09.2015. The notices were made returnable within two weeks and notices were dispatched by both ways, dasti summon as well as by registered speed post whereupon an affidavit of service was filed alongwith application no. 105008 of 2015 and according to paragraph 4 of the affidavit filed in support of the said application, the dasti summons have been duly served on the first respondent, the petitioner of the writ petition.

It is thus clear that notices according to the office report dated 13.10.2015 have been served long back on the respondent no.1. It is also stated by Sri Gaurav Mehrotra that Sri Asif Hasan, learned counsel who had appeared for respondent no.1 in the writ petition and also in the review application, was duly informed about the pendency of this appeal and the delay condonation application, yet he has not chosen to respond nor he has come forward to oppose the same.

Apart from this, the first respondent has also not filed any counter affidavit inspite of the fact that the office report  indicates service of notice upon him. It is thus clear that the first respondent has clearly avoided to appear and file  objections to the delay condonation application which is pending since 15.09.2015.

Accordingly in view of the aforesaid facts that have emerged, we find that there is a plausible justification given by the appellant for not having filed the appeal within the stipulated time, keeping in view the fact that the judgment came to be known only after the contempt proceedings were instituted by the respondent no.1 and notices were issued thereon in 2015.

We are, therefore, of the opinion that the delay stands sufficiently explained and consequently the same deserves to  be condoned.

Accordingly the delay is condoned and the application is allowed.

The appeal shall now to be treated to be within time and shall be given a regular number."

Thereafter we also passed the following order on the memo of appeal separately on the same date :-

"This appeal questions the correctness of the judgment dated 26.09.2014 as also the procedure and propriety of having entertained the review application without putting the appellant to notice. The appeal also questions the judgment on the ground that the rules that are applicable to the controversy including the Civil Services Regulation 351-A have been completely overlooked and had the appellant been put to notice, the same would have been pointed out. This fact is necessary to be mentioned in the background that the writ petition had been initially dismissed by the learned Single Judge on 25.07.2014 but at the admission stage without calling for a counter affidavit, the review application was filed without any notice to the appellant and the writ petition was allowed. The writ petition had been dismissed at the initial stage of admission and therefore there was no occasion for the appellant to have filed a counter affidavit. In such circumstances, it was imperative for the learned Single Judge atleast to issue notices on the review application before proceeding to allow the writ petition and reversing the earlier order of dismissal.

We primafacie on a consideration of the above undisputed position find that there has been a failure of justice as the appellant had no occasion to defend the matter at the appropriate stage so as to point out the correct regulations  applicable to the controversy. 

Even otherwise on merits it is submitted that the case law relied upon by the learned Single Judge is absolutely alien to the dispute.

On both the grounds, we find that the appeal deserves to be admitted.

Admit.

Issue notice fixing 14th of December, 2015 for further orders. 

Sri Gaurav Mehrotra, learned counsel for the appellant contends that since the retiral benefits of respondent no.1 had been released under the threat of contempt, the final relief can be granted only upon the appeal being heard but at the same time the impugned judgment is likely to be now pressed into service as a precedence and may create a problem with regard to the applicability of the provisions as pronounced in the judgment in these similar matters.

We, therefore, provide that until further orders of the Court, the impugned judgment dated 26.09.2014 shall not be available and its ratio will not operate as a precedent in any other matter.

It is further evident that the respondent no.1 was faced with a grievous charge of manipulation and interpolation of the order sheet of judicial proceedings. He has therefore succeeded in avoiding disciplinary proceedings and to the contrary has been benefited of his retiral dues including pension. The judgment of the learned single judge requires an immediate consideration. The respondent no.1 therefore shall respond immediately or else this court may have to consider passing appropriate restraint orders against the respondent no.1 on the date fixed."

Today, Sri Asif Hasan has appeared on behalf of respondent no.1 and submits that his non-appearance earlier was on account of his personal ailment and he on account of such ailment had not been able to assist the court.  We may on the personal ailment plea not doubt the learned counsel's version, but the non filing of any counter to the delay condonation matter is evident inspite of service as noted in our order dated 24.11.2015 on the delay condonation matter.

Sri Hasan prayed for time to explain and justify his absence by filing an affidavit.  We are not inclined to grant any further time as the issue involved is purely legal, namely as to whether a ground for review was available or not and as to whether the legal position was correctly appreciated in the background of the dispute.

The first issue that stares on the face of record is that the review petition was entertained by the learned Single Judge and it was heard and decided without any notice having been issued to the learned District Judge who was not represented by the learned Standing Counsel of the State. No notice was issued to the learned District Judge before entertaining the review petition which appears to have been allowed ex parte to him.  Secondly the learned Single Judge himself while dismissing the writ petition on 25th July, 2014 had observed in the following words :-

"A perusal of the Rules show that there is no bar in continuation of inquiry even after retirement of the employee".

The judgement in its concluding part also records "However upon perusal of the Rules prevalent in the petitioner's case, I do not find any restriction in continuation of the inquiry after retirement of the employee.  Therefore, I am of the view that the writ petition deserves to be dismissed being devoid of merit."

The aforesaid findings have been recorded on merits by the learned Single Judge.  Learned counsel for the High Court and the learned District Judge Sri Gaurav Mehrotra has rightly pointed out that the learned Single Judge while allowing the review application has completely ignored the aforesaid findings as also the provisions of the U.P. Subordinate Courts Staff (Punishment and Appeal) Rules, 1976 and the U.P. Subordinate Civil Courts Ministerial Establishment Rules, 1947.  The 1947 Rules contain Rule 24 which read with Regulation 351-A of the Civil Services Regulations can be pressed into service after retirement of an employee is also the contention of Sri Gaurav Mehrotra.  This aspect has also been overlooked by the learned Single Judge while passing the judgment on review petition on 26.9.2014.

There was therefore no error apparent on the face of record in the judgment dated 25.7.2014 and to the contrary the judgment dated 26.9.2014 of review completely ignores the aforesaid considerations.  The writ petition was allowed on review without even discussing the impact of the aforesaid rules.

Consequently, there being no error apparent on the face of record, in our opinion, the judgment dated 25.7.2014 could not be subjected to review.  It is by now well settled that a review is not a rehearing for the purpose of substituting a view already taken.  It is not an appeal in disguise nor the possibility of a second view can be a ground for review.  Learned counsel for the High Court has rightly relied on the following decisions to substantiate the aforesaid submissions :-

1. Lily Thomas Vs. Union of India, (2000) 6 SCC 224

2. Kamlesh Verma Vs. Mayawati, (2013) 13 SCC 320

3. Haryana State Industrial Development Corporation Vs. Mawasi, (2012) 7 SCC 200

4. Inderchand Jain Vs. Motilal (2009) 14 SCC 663.

The learned Single Judge while dismissing the writ petition earlier had clearly recorded that he had perused the rules as indicated hereinabove.  In such a situation the presumption is that the judgment of dismissal had been rendered on a perusal of the relevant Rules.

The impugned review judgment has been delivered on the strength of the judgment in the case of Dev Prakash Tiwari Vs. U.P. Cooperative Institutional Service Board & others, 2014(3) UPLBEC Page 1749.  This was a totally erroneous approach, inasmuch as the learned District Judge was not apprised of the aforesaid judgment nor any notice was given to him to meet any such argument which was entertained behind the back of the learned District Judge to allow the review application.  We have also found no justification for applying the ratio of the said judgment for exercising the power of review.

The issues that were framed by us in the orders quoted hereinabove could not be answered by any arguments on behalf of the respondents by Sri Hasan so as to take a different view as held hereinabove.  He, however, submits that if the judgment on the review application is set aside the respondent no.1 will be put to inconvenience and his pension might be withheld which was released on account of the passing of the impugned order passed on the review petition.

In our considered opinion that would be a natural consequence inasmuch as the only remedy that was available to the respondent no.1, if at all he was aggrieved by the dismissal of his writ petition on 25.7.2014, was to file an appeal.  Instead of filing of an appeal against the said judgment the respondent no.1 preferred the review petition which has been erroneously allowed as noted above.

Consequently, on all these grounds the impugned order dated 26.9.2014 cannot be sustained. 

There is one other issue that deserves to be pointed out on record.  The affidavit filed in support of the application for interim relief in the appeal in paragraph 29 narrates that on 24.4.2015 orders were passed in the contempt application issuing notice returnable at an early date.  It appears that with the issuance of the notice the learned District Judge immediately thereafter on 11.5.2015 hurriedly concluded the disciplinary proceedings. Not only this, the then learned District Judge appears to have ensured all payments to the respondent no.1 including balance of salary during the period of suspension and facilitated the payment of pension and gratuity with approval by the Additional Director Treasury & Pension, Lucknow.  It has been stated in paragraph 29 that due to oversight payment of full salary for the period of suspension was also transacted which deserves to be recovered.

It may further be noted that in paragraph 5 of the affidavit filed in support of the delay condonation application it had been averred that it was only at the stage of the issuance of the notice of the contempt application on 24.4.2015 that the High Court was informed of the said judgment.  To our mind, it is not understood that if the High Court had to be informed then what prompted the then learned District Judge to hurriedly get all the payments cleared to the respondent no.1.  This therefore calls for an explanation from the then learned District Judge, Lucknow as also the other officials involved in facilitating payment to the respondent no.1 on the administrative side. A copy of this judgment shall therefore be sent to the Registrar General of the High Court who may obtain necessary orders in this regard to find out any element of undue haste having been exercised in facilitating the payment to the respondent no.1.

We accordingly allow this special appeal and set aside the order dated 26.9.2014 without prejudice to the rights of the respondent no.1 to assail the original judgment dated 25.7.2014 in appropriate proceedings in accordance with law.

Order Date :- 21.12.2015

Anand Sri./-