Chandra Kishore Pathak And ... vs State Of U.P. And 2 Others
2021 Latest Caselaw 10355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 418 of 2020
 

 
Appellant :- Chandra Kishore Pathak And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Kushmondeya Shahi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Rajendra Kumar-IV,J.

Order on Civil Misc. Delay Condonation Application No. 2 of 2020

Heard on the application under section 5 of Limitation Act.

There is delay of 140 days in filing the appeal. Reason of delay has been given and as otherwise we have considered the appeal on its merit, the delay in filing the appeal is condoned.

The application is allowed.

Order on Special Appeal

By this appeal, challenge is made to the judgment dated 11.02.2020 whereby the writ petition preferred by the petitioner/appellant was dismissed. The writ petition was filed to claim salary with the arrear. The prayer aforesaid was not accepted by the learned Single Judge finding no document to prove working of the petitioner/appellant on the post rather remain absent from the duties.

Challenge to the judgment has been made on the ground that no inquiry was caused by the committee of management in regard to the allegation of absence. The denial of salary could not have been otherwise without any opportunity of hearing. Learned Single Judge yet made an observation about the inquiry where petitioner/appellant was found absent from duty whereas no inquiry was initiated. The prayer is accordingly to set aside the judgment.

We have considered the submissions of learned counsel for the petitioner/appellant and perused the record.

Learned counsel for the petitioner/appellant was asked to refer the material to prove his working during the intervening period to claim salary and arrear. A reference to documents enclosed along with supplementary affidavit has been given but does not prove the working for the period in question.

The inspection report does not prove working of the petitioner/appellant during the intervening period rather petitioner said to have been sent on training. The petitioner/appellant is trying to take inference about his working without showing any document to prove his working. It otherwise involves a question of fact which cannot be determined by this Court while exercising jurisdiction under Article 226 of the Constitution of India.

We otherwise find no material to prove working of the petitioner/appellant during the intervening period for which the claim of salary has been made. Accordingly, there exist no reason to interfere in the judgment of the learned Single Judge.

The appeal accordingly fails and is dismissed.

Order Date :- 16.8.2021

Madhurima

(Rajendra Kumar-IV, J.) (Munishwar Nath Bhandari, ACJ.)