Mahendra Rai vs State Of U.P. & Others
2016 Latest Caselaw 2975 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 
Civil Misc. Review Application No.316172 of 2012
 
in re:
 
Case :- SPECIAL APPEAL No. - 1277 of 2010
 

 
Appellant :- Mahendra Rai
 
Respondent :- State Of U.P. & Others
 
Counsel for Appellant :- Ram Kirti Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

Heard learned Counsel for the applicant.

This review application has been filed for recall of the order dated 11.8.2010 on the ground that the Division Bench while disposing of the appeal assumed that the document dated 13.8.1999 which is stated to have been dispatched on 17.8.1999 through the Post Office as per the information received under the Right to Information Act was a forged document. Learned counsel submits that this assumption could not have been made without there being any adjudication or any response being filed by the respondents to this effect. The contention is that this issue on merits was neither considered by the learned Single Judge nor by the Division Bench and therefore, the dismissal of the appeal as well as of the writ petition on such assumption is an error apparent on the face of record.

Learned counsel submits that the learned Single Judge has dismissed the writ petition on the very first day on the ground of laches and the appeal was also dismissed on the very first day on the ground that the document on which reliance has been placed by the appellant relating to his regularization was forged.

Learned Standing Counsel contends that the petitioner had failed to produce on record any material so as to substantiate his plea about the veracity of the document dated 13.8.1999 and consequently, neither the learned Single Judge nor the Division Bench has committed any error in dismissing the claim of the appellant even on merits, apart from laches.

We have considered the aforesaid submissions raised. The issue of laches was explained by the petitioner by entailing a fact which led to the aforesaid controversy. It is evident from the record of the writ petition that on the strength of his alleged working in the department, the appellant claimed regularization and having failed to secure the same, he filed Writ Petition No.29483 of 1999 that was disposed off on 22.7.1999 directing the respondent No.1 therein District Forest Officer, Social Forestry, Forest Department, Azamgarh to decide the claim of the petitioner after appreciating the facts on record.

The Divisional Director, Social Forestry, Forest Department, Azamgarh according to the appellant passed an order of regularization pursuant to the directions of the learned Single Judge aforesaid, after considering his claim on 13.8.1999 making him regular and posting him to perform the work of social forestry at Kabirpur and Raghunathpur. The petitioner further contends that while working at those places, there was a dispute at Higher Secondary School, Sethari, district Azamgarh where a criminal case No.127 of 1986 had been instituted against him. On the basis of such claim, the appellant alleged that he was working and was regular but he had not been paid his salary as a result whereof he filed a fresh writ petition No.6679 of 2001. The same was disposed off on 22.2.2001 with a direction to the concerned authority to pass appropriate orders with regard to the release of salary. On this, the authority vide letter dated 12.3.2001 issued a notice to the petitioner calling upon him to inform that according to the records of the office, no such letter of regularization dated 13.8.1999 was available and therefore he should explain his status of functioning as also the said order. The petitioner submitted his reply entailing all the aforesaid facts, whereafter the order dated 4.11.2003 was passed recording that the letter dated 13.8.1999 having not been found on record was a forged document and consequently his claim for payment of salary was rejected.

Aggrieved by the said order, the appellant filed a writ petition giving rise to the present appeal being Writ Petition No.50752 of 2005 on the ground that the findings were wrong and that the petitioner was entitled to his payment of salary, as such the said order deserves to be quashed. Learned Single Judge by the impugned judgment dated 8.7.2010 proceeded to hold that no grounds explaining the delay and laches have been given and therefore, the delay or laches did not deserve to be condoned and the petition be dismissed.

We have considered the aforesaid submissions raised in respect of laches and the litigative history of the matter clearly indicates that the appellant has been pursuing his case before the authorities and having failed to get his grievances redressed, he finally challenged the said order before this Court by means of a writ petition. We do not find that the delay or laches was either deliberate or the appellant had been sleeping over his rights. He had been representing his cause and had approached this Court and had filed two writ petitions before this Court. There was therefore no reason to have dismissed the writ petition the ground of laches which deserve to be condoned.This issue of laches was not even mentioned or considered while dismissing the appeal as such the said error is clerly visible.

The appeal was also dismissed, at the very outset, finding that the document was forged. We find that this contention of the appellant that according to him, the document was not forged was not addressed to and was an error apparent on the face of record without any adjudication and without any counter affidavit being filed on behalf of the State either before the learned Single Judge or even in the Special Appeal itself. A counter affidavit to this review application has been filed which runs into 11 paragraphs and it reiterates the same stand as was taken by the authority in the order which was impugned in the writ petition without saying anything further. There is no denial about the document relating to the information received under the Right to Information Act which has been appended alongwith the review application. In this background, we find that the matter has gone unadjudicated without even calling for a counter-affidavit on the merits relating to the allegation of the document of regularization dated 13.8.1999 being forged. Consequently, the judgment dated 11.8.2010 suffers from an error apparent on the face of record and the review application deserves to be allowed.

Accordingly, the review application is allowed and the judgment  dated 11.8.2010 is recalled.

For the same reasons given here-in-above, the judgment of the learned Single Judge 8.7.2010 passed in the writ petition also cannot be sustained.  The appeal is consequently allowed and the judgment of the learned Single Judge dated 8.7.2010 is hereby set aside.

We further direct the respondent-State to file a detailed counter affidavit, within six weeks, in response to the writ petition of the appellant, which shall now stand restored and be heard by the learned Single Judge whenever it is listed. Three weeks for rejoinder thereafter.

Order Date :- 25.5.2016

lakshman

 [Pramod Kumar Srivastava, J.]    [ Amreshwar Pratap Sahi, J.]

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Civil Misc. Delay Condonation Application No.316169 of 2012

in re:

Case :- SPECIAL APPEAL No. - 1277 of 2010

Appellant :- Mahendra Rai

Respondent :- State Of U.P. & Others

Counsel for Appellant :- Ram Kirti Singh

Counsel for Respondent :- C.S.C.

Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

The delay has been explained by indicating that the information which was received under the Right to Information Act was being delayed.

Having heard learned counsel for the applicant and keeping in view the delay having been explained in filing  the review application, the delay condonation application is allowed and the delay in filing the review application is hereby condoned as the cause shown is sufficient.

Order Date :- 25.5.2016

lakshman

 [Pramod Kumar Srivastava, J.]    [ Amreshwar Pratap Sahi, J.]