Suresh Upadhyaya vs State Of U.P. Thru. Prin.Secy., ...
2017 Latest Caselaw 7811 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 7
 

 
Case :- SERVICE BENCH No. - 30301 of 2016
 
Petitioner :- Suresh Upadhyaya
 
Respondent :- State Of U.P. Thru. Prin.Secy., Deptt. Of Home & 4 Others
 
Counsel for Petitioner :- Rajeev Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

Heard Shri V. K. Singh, learned Senior Advocate assisted by Shri Rajeev Singh, learned counsel for the petitioner, Shri Sabhajeet Singh, learned counsel for the respondent and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned order dated 11.08.2016 passed by State Public Service Tribunal, Lucknow in Claim Petition No.488 of 2014 "Suresh Upadhyaya vs. State of U. P. & Ors.", the order dated 27.09.2013 passed by Deputy Inspector General of Police, Azamgarh thereby dismissing the appeal filed by him along with order dated 05.07.1996 passed by Superintendent of Police, Azamgarh thereby dismissing the petitioner from his services.

Facts in brief of the present case are that the petitioner while working on the post of Constable, posted at Azamgarh in U. P. Police department was absent from his duties on 04.06.1993. So by order dated 05.07.1996, Superintendent of Police, Azamgarh dismissed the petitioner from his services.

On 26.05.2010, petitioner filed Writ Petition No.3579 (SS) of 2010 before this Court challenging the order of dismissal dated 05.07.1996 passed by Superintendent of Police, Azamgarh.

By order dated 30.11.2010, the said writ petition was dismissed on the ground of alternative remedy available to the petitioner to file an appeal as per Rule 20 of U. P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as Rules, 1991).

On 15.02.2011, petitioner filed an appeal before the Appellate Authority/Deputy Inspector General of Police, Azamgarh, dismissed by order dated 27.09.2013 on the ground that the appeal filed by him is beyond the statutory period of limitation as provided Sub Rule 6 of Rule 20 of Rules 1991.

Aggrieved by the order dated 27.09.2013 passed by the Appellate Authority/Deputy Inspector General of Police, Azamgarh as well as dated 05.07.1996 passed by Superintendent of Police, Azamgarh, petitioner filed Claim Petition No.488 of 2014 "Suresh Upadhyay vs. State of U. P. and others" before the State Public Services Tribunal, Lucknow.

By order dated 11.08.2016, the Tribunal has dismissed the claim petition with the following observations :-

"A perusal of the record goes to show that the petitioner was absent since 1993. According to him his wife and children were ill and later on he also fell ill hence could not join duty but he did not file any evidence with regard to illness of his wife, children and himself. He has also not filed any documentary evidence to support his case regarding his critical family dispute which was to be solved by him with his other family members. He has only filed his medical certificate of 1997 Annexure-5 which has been obtained after his removal from service. There is no documentary evidence to support his version that he himself fell ill till he got treatment from Dr. H. D. Singh. There is also no certificate of fitness. Petitioner was a member of disciplined force and there are police hospitals in each district as well as Civil Hospitals everywhere in the State of U. P. but he never took shelter of those hospitals to support his claim of illness. After removal from service in 1996 he remained silent till 2010. After a period of 14 years he took shelter of the Hon'ble High Court but he failed. He was directed to file appeal but the same was dismissed, also he did not file revision which was a statutory remedy available to him. There is no evidence to support the version of the petitioner that his absence was not deliberate and unintentional. Since nothing has been placed on record that after treatment by Dr. H. D. Singh (Annexure-5), any further treatment was taken by him in this long period of this more than 13 years. This fact goes to show that the petitioner deliberately, intentionally did not join services. Nothing has been placed on record to substantiate the facts that the petitioner was not given due opportunity to defend himself. Procedure adopted by the department is according to rule which after a delay more than 14 years cannot be rightly interfered with. This is, a stale claim filed by the petitioner and deserves to be rejected outright."

Shri V. K. Singh, learned Senior Advocate assisted by Shri Rajeev Singh, learned counsel for the petitioner while challenging the impugned orders submits that in the present case, by order dated 05.07.1996, the petitioner was dismissed from his services, challenged by him by filing Writ Petition No.3579 (SS) of 2010 before this Court, dismissed by order dated 30.11.2010 on the ground of alternative remedy available to the petitioner to file an appeal as per Rule 20 of Rules, 1991.

Thereafter, on 15.02.2011 he filed an appeal before the Appellate Authority/Deputy Inspector General of Police, Azamgarh, dismissed by order dated 27.09.2013 on the ground that the appeal filed by him is beyond the statutory period of limitation as provided under Sub Rule 6 of Rule 20 of Rules 1991.

So keeping in view the said facts as well as the provisions as provided under Section 14 of Limitation Act, 1963, the period which has been consumed by the petitioner before this Court while pursuing the remedy by way of writ petition should be excluded from the statutory period for filing appeal as provided under Sub Rule 6 of Rule 20 of Rules 1991, so the appellate authority has wrongly held that the appeal filed by the petitioner is beyond the statutory period of six months as per the said provisions. The said action on the part of the Appellate Authority is contrary to law and reliance has been placed on the following judgments :-

"1. Roshanlal Nuthiala and others vs. R. B. Mohan Singh Oberai, (1975) 4 SCC 628.

2. Rameshwarial vs. Municipal Council, Tonk & Ors.,(1996) 6 SCC 100.

3. P. Sarathy vs. State Bank of India, (2000) 5 SCC 355.

4. Union of India & Others vs. West Coast Paper Mills Ltd. & others, (2004) 2 SCC 747.

5. Union of India and others vs. West Coast Paper Mills Ltd. & others, (2004) 3S.C.C.458.

6. Shakti Tubes Ltd. Through Director vs. State of Bihar & others, (2009) 12S.C.C. 786.

7. J. Kumardasan Nair & another vs. IRIC Sohan & others, (2009) 12 S.C.C. 175.

8. M. P. Steel Corporation vs. Commissioner of Central Excise, 2015 Supreme (SC) 340."

Shri V. K. Singh, learned Senior Advocate further argued that the Tribunal while considering the matter has dismissed the Claim Petition No.488 of 2014 on the ground that the same has been filed after 14 years from the date of passing of the impugned order of dismissal and it is barred by the period of limitation under Section 5 (1) of U. P. Service Tribunal Act, 1996 and this is a stale claim filed by the petitioner and deserves to be rejected outright.

Accordingly, it is argued by learned counsel for the petitioner that the controversy before the Tribunal was that whether the action on the part of the Appellate Authority thereby dismissing the petitioner's appeal on the ground of limitation as per Sub Rule 6 of Rule 20 of Rules 1991 is correct or wrong, but the Tribunal has not adjudicated the said issue, rather has taken a new ground for dismissing the claim petition that the claim petition is barred by a period of limitation. So the order passed by the Tribunal is contrary to the facts of the case, liable to be set aside.

Shri Sabhajeet Singh, learned Standing Counsel while defending the impugned orders under challenge in the present writ petition submits that in the present case, petitioner was dismissed from his services vide order dated 05.07.1996 passed by punishing authority/Superintendent of Police, Azamgarh and at a belated stage on 26.05.2010, he filed Writ Petition No.3579 (SS) of 2010 before this Court challenging the order dated 05.07.1996, dismissed on the ground of alternative remedy available to him to file an appeal and thereafter, appeal filed by the petitioner before the appellate authority has been rejected on the ground of limitation as per Sub Rule 6 of Rule 20 of Rules 1991, which is perfectly valid as the period of limitation for filing an appeal before the appellate authority as per the said rules is of six months and the appeal filed by the petitioner is beyond the said statutory period of limitation.

He further submits that as the order dated 05.07.1996 was immediately served on the petitioner, thereafter, he had not taken any steps whatsoever to challenge the same and at a belated stage, after passing of 14 years, approached the High Court. So the Tribunal has rightly dismissed the claim petition filed by the petitioner on the ground of delay and laches, as such, there is no illegality or infirmity in the impugned orders under challenge in the present writ petition.

We have heard learned counsel for the parties and gone through the records.

The core question which is to be considered in the present case is that whether the period which has been exhausted by the petitioner before this Court while pursuing the remedy by way of writ petition can be excluded or not ?

The period of limitation for filing the statutory appeal is defined in Sub Rule 6 of Rule 20 of Rules 1991 and Section 14 (1) of the Limitation Act, 1963

Sub Rule 6 of Rule 20 of Rules 1991 reads as under :-

"An appeal will not be entertained unless it is preferred within three months from the date on which the Police Officer concerned was informed of the order of punishment."

Section 14 (1) of the Limitation Act, 1963 reads as under :-

"In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

Hon'ble the Apex Court in the case of Roshanlal Nuthiala and others (Supra) has held as under :-

"Certainly, Section 14 is wide enough to cover periods covered by execution proceedings. After all Section 47 itself contemplates transmigration of souls as it were of execution petitions and suits. The substantial identity of the subject-matter of the lis is a pragmatic test. Moreover, the defects that will attract the provision are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits, comes within the scope of the section and a liberal touch must inform the interpretation of the Limitation Act which deprives the remedy of one who has a right. In the Associated Hotels case (i.e. the very lis in its earlier round on the execution side) this Court pointed out that the question was one of initial jurisdiction of the Court to entertain the proceedings. Thus in this very matter, the obstacle was jurisdictional and the exclusionary operation of Section 14 of the Limitation Act was attracted."

In the case of Rameshwarlal (supra), Hon'ble the Apex Court while considering the scope of Section 14 of the Limitation Act has held as under :-

"Normally for application for Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded. The petitioner is permitted to issue notice to the Municipality within four weeks from today. After expiry thereof, he could file suit within two months thereafter. The trial court would consider and dispose of the matter in accordance with law on merits."

Hon'ble the Apex Court in the case of Shakti Tubes Ltd. Through Director (Supra) after taking into consideration the law laid down by Hon'ble the Apex Court in the case of Rameshwarlal (Supra) and Union of India and others (Supra) has held as under :-

"Section 14 of the Limitation Act speaks of prosecution of the proceedings in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. What would be the true purport of the words "other cause of a like nature"? The same must relate to the subject matter of the issue. A Three -Judge Bench of this Court had an occasion to consider the same in Rameshwarlal v. Municipal Council, Tonk and Others [(1996) 6 SCC 100] where in it was held:

"3. Normally for application of Section 14, the court dealing with the matter in the first instance, which is the subject of the issue in the later case, must be found to have lack of jurisdiction or other cause of like nature to entertain the matter. However, since the High Court expressly declined to grant relief relegating the petitioner to a suit in the civil court, the petitioner cannot be left remediless. Accordingly, the time taken in prosecuting the proceedings before the High Court and this Court, obviously pursued diligently and bona fide, needs to be excluded.

We may also notice that in India Electric Works Ltd. v. Jamesh Mantosh & Anr. [1971 (2) SCR 397 : (1971) 1 SCC 24], this Court held:

"7. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words "or other cause of a like nature" must be construed liberally. Some clue is furnished with regard to the intention of the Legislature by the Explanation III in Section 14(2). Before the enactment of the Act in 1908, there was a conflict amongst the High Courts on the question whether mis-joinder and non-joinder were defects which were covered by the words "or other cause of a like nature". It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking mis-joinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it."

In the case of J. Kumardasan Nair & another (Supra), Hon'ble the Apex Court after placing reliance on the earlier judgment given in the case of Consolidated Engg. Enterprises vs. Irrigation Deptt. (2008) 7 SCC 169 has held as under :-

"22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded."

And in the case of M. P. Steel Corporation (Supra) Hon'ble the Supreme Court after taking into consideration the various judgment on the point in issue which has been rendered earlier has held as under :-

"52. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3.4.1992 under Section 128 pre amendment when the appellant received the order of the Superintendent of Customs intimating it about an order passed by the Collector of Customs on 25.3.1992. Under Section 128 as it then stood a person aggrieved by a decision or order passed by a Superintendent of Customs could appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order. On the principles contained in Section 14 of the Limitation Act the time taken in prosecuting an abortive proceeding would have to be excluded as the appellant was prosecuting bona fide with due diligence the appeal before CEGAT which was allowed in its favour by CEGAT on 23.6.1998. The Department preferred an appeal against the said order sometime in the year 2000 which appeal was decided in their favour by this court only on 12.3.2003 by which CEGAT's order was set aside on the ground that CEGAT had no jurisdiction to entertain such appeal. The time taken from 12.3.2003 to 23.5.2003, on which date the present appeal was filed before the Commissioner (Appeals) would be within the period of 180 days provided by the pre amended Section 128, when added to the time taken between 3.4.1992 and 22.6.1992. The amended Section 128 has now reduced this period, with effect from 2001, to 60 days plus 30 days, which is 90 days. The order that is challenged in the present case was passed before 2001. The right of appeal within a period of 180 days (which includes the discretionary period of 90 days) from the date of the said order was a right which vested in the appellant. A shadow was cast by the abortive appeal from 1992 right upto 2003. This shadow was lifted when it became clear that the proceeding filed in1992 was a proceeding before the wrong forum. The vested right of appeal within the period of 180 days had not yet got over. Upon the lifting of the shadow, a certain residuary period within which a proper appeal could be filed still remained. That period would continue to be within the period of 180 days notwithstanding the amendment made in 2001 as otherwise the right to appeal itself would vanish given the shorter period of limitation provided by Section 128 after 2001."

As per settled position of law stated herein above, the period which has been exhausted by the petitioner before this Court while pursing his remedy against the impugned order of dismissal dated 05.07.1996 while challenging the same by way of Writ Petition No.3579 (SS) of 2010, should be excluded.

Thus, the appellate authority has wrongly held that petitioner's appeal is barred by the statutory period of limitation as provided under Sub Rule 6 of Rule 20 of Rules 1991.

Further, the Tribunal has not considered the fact that whether the action on the part of the appellate authority thereby dismissing the appeal filed by the petitioner on the ground that the same is beyond the statutory period of limitation or not and in this regard, no finding has been given on the one hand, and on the other hand, the claim petition filed by the petitioner has been dismissed on a new ground that the same is barred by period of limitation from the date of cause of action in regard to dismissal of his services by order dated 05.07.1996.

The aforesaid findings recorded by the Tribunal being contrary to law is not inconformity with the settled proposition of law that when substantial justice and technical considerations are pitted against each other, the way should be given to substantial justice.

In the result, the writ petition is allowed and the impugned order dated 11.08.2016 passed by the Tribunal in Claim Petition No.488 of 2014 as well as appellate order dated 27.09.2013 passed by Deputy Inspector General of Police, Azamgarh are set aside. The Appellate Authority is directed to decide the appeal filed by the petitioner on merit after giving an opportunity of hearing to the petitioner, expeditiously.

.

(Daya Shankar Tripathi,J.) (Anil Kumar,J.)

Order Date :-08.12.2017

Mahesh