Rama Shankar Yadav vs State Of U.P.And 3 Others
2023 Latest Caselaw 26332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:187088
 
Court No. - 37
 

 
Case :- WRIT - A No. - 1308 of 2022
 

 
Petitioner :- Rama Shankar Yadav
 
Respondent :- State Of U.P.And 3 Others
 
Counsel for Petitioner :- Mahesh Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

2. By means of this writ petition, the petitioner has challenged the orders dated 18.2.2019 and 21.9.2021, copies of which are Annexures-7 & 11 to the petition, respectively. A further prayer is made for a madamus commanding the respondents to pay the arrears of salary to the petitioner with effect from 27.8.1997 to 31.1.2019, i.e., the date of retirement of the petitioner with all consequential benefits.

3. The petitioner had been working as regular Collection Amin when his services were terminated by means of order dated 9.1.1992. The petitioner being aggrieved filed Writ Petition No.5678 of 1992, which was dismissed vide detailed judgment dated 23.3.2010. Still being aggrieved, the petitioner filed Special Appeal (Defective) No.271 of 2011 (Rama Shanker Yadav vs. The District Magistrate, Deoria & others) and this Court vide judgment and order dated 19.9.2018, a copy of which is Annexure-6 to the writ petition, has set aside the order passed by the Writ Court as well as the dismissal of order dated 9.1.1992 and remitted the matter to the District Magistrate, Deoria, for issuing a show-cause notice to the appellant afresh and, thereafter, to pass a fresh order.

4. In the interregnum, as an interim order had been passed in the writ petition filed by the petitioner whereby the dismissal order had been stayed, as such, the petitioner was reinstated in service. Again, the petitioner had been dismissed vide order dated 26.8.1997. Being aggrieved, the petitioner filed an appeal before the appellate authority, which was decided vide order dated 28.2.2000, a copy of which is Annexure-1 to the petition. The appellate authority upon finding that the dismissal order dated 26.8.1997 was defective set aside the said order and remitted back the matter for a fresh inquiry.

5. Specific averments have been made in paragraphs 10 and 11 of the writ petition to the effect that no disciplinary proceedings have been initiated in pursuance of the order passed by the disciplinary authority dated 28.02.2000.

6. Subsequent thereto, as the petitioner retired on attaining the age of superannuation on 31.1.2019, consequently, the State has given the entire retirement benefits but the salary for the period from the date of his dismissal (9.1.1992) till the date of his retirement (31.1.2019) was not given.

7. Being aggrieved, the petitioner moved a representation upon which the competent authority vide order dated 18.2.2019, a copy of which is Annexure-7 to the petition, has held the petitioner to be entitled for salary for the period from 9.1.1992 to 26.8.1997.

8. The petitioner again filed an application against the said order praying for being granted the benefit as aforesaid yet the competent authority vide order dated 21.9.2021, a copy of which is annexed with the petition, has passed an order that there is no ground to review its earlier order and as such, the earlier order dated 18.2.2019 has been maintained. Being aggrieved, the instant writ petition has been filed.

9. The contention of learned counsel for the petitioner is that when the earlier dismissal order dated 9.1.1992 was set aside by the Division Bench of this Court in Special Appeal with the liberty to the respondents to initiate fresh proceedings and no fresh proceedings have been initiated against the petitioner and even prior to any such proceedings being initiated, the petitioner had again been dismissed from service on 26.8.1997 which dismissal order has been set aside by the appellate authority vide order dated 28.2.2000 to again initiate disciplinary proceedings and as no disciplinary proceedings have been initiated against the petitioner and the petitioner retired on attaining the age of superannuation on 31.1.2019, consequently he would be entitled for full salary also for the period of his dismissal subsequent to 26.8.1997 till his actual retirement on 31.1.2019 with all attendant benefits including increments etc. and the respondents have patently erred in not granting the said benefit to the petitioner.

10. On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that once admittedly the petitioner had been dismissed, not once but twice from service, i.e., initially on 9.1.1992 and thereafter on 26.8.1997 as such the conduct of the petitioner cannot be said to be exemplary and consequently as the appellate authority vide order dated 28.2.2000 only set aside the order of dismissal and remitted back the matter for fresh proceedings, therefore the petitioner is not entitled for the entire salary for the period of dismissal subsequent to 26.08.1997 even though the petitioner has retired on attaining the age of superannuation on 31.1.2019.

11. I have heard the learned counsel for the parties and perused the record.

12. From perusal of record, it emerges that the petitioner was working as Collection Amin and had been dismissed from service on 9.1.1992. Being aggrieved, he filed a writ petition before this Court in which initially an interim order was passed whereby the dismissal of the petitioner had been stayed. Subsequently, the writ petition was dismissed in the year 2010. Being aggrieved the petitioner filed a Special Appeal and the Division Bench of this Court vide judgment and order dated 19.9.2018 set aside the order of Writ Court and the dismissal order dated 09.01.1992 and remitted back the matter for a fresh inquiry to the competent authority. In the interregnum, on the basis of the interim order, the petitioner had been reinstated in service, but had again been dismissed from service vide order dated 26.8.1997. The petitioner filed an appeal against the said order and the appellate authority vide order dated 28.2.2000 set aside the order of dismissal and remitted the matter back for fresh proceedings. As per specific averment made in paragraphs 10 and 11 of the writ petition, no fresh disciplinary proceedings were ever initiated against the petitioner-either in pursuance of the order passed in Special Appeal dated 19.9.2018 or pursuant to the order passed by the disciplinary authority dated 28.2.2000. The petitioner also retired on attaining the age of superannuation on 31.01.2019.

13. Incidentally, the averments made in paragraphs 10 and 11 of the writ petition pertaining to no disciplinary proceedings being initiated against the petitioner have not been specifically denied in paragraphs 10 and 11 of the counter affidavit.

14. From perusal of the aforesaid, it is apparent that despite liberty having been granted both by the Division Bench of this Court vide judgment and order dated 19.9.2018 as well as by the appellate authority through order dated 28.2.2000, no disciplinary proceedings have been initiated against the petitioner. Thus, both the dismissal orders- the initial order dated 9.1.1992 being set aside in Special Appeal as well as the second dismissal order dated 26.8.1997 being set aside by the appellate authority vide order dated 28.2.2000 attained finality and no disciplinary proceedings were ever initiated against the petitioner till his retirement on 31.1.2019.

15. The petitioner stakes his claim for being given the salary for the period from the date of his dismissal dated 9.1.1992 till the date of his superannuation. The competent authority vide order dated 18.2.2019 was of the view that as the dismissal order of the petitioner dated 9.1.1992 was though set aside in Special Appeal yet in the interregnum, he had already been dismissed from service on 26.8.1997 consequently, the petitioner would only be entitled for the salary from the period from 9.1.1992 to 26.8.1997 and not for the remaining period. Upon another application being filed, the competent authority has rejected the same vide order dated 21.9.2021 by contending that no case for review or recall of the earlier order dated 18.2.2019 is made out.

16. From perusal of the aforesaid, it is apparent that despite the competent authority having accepted the payment of salary for the period from 9.1.1992 till 26.8.1997, i.e., till the second dismissal order, the competent authority has failed to consider that the second dismissal order dated 26.8.1997 had been set aside by the appellate authority through the order dated 28.2.2000. Even though, the appellate authority had remitted back the matter to the disciplinary authority to initiate fresh proceedings or continue with the proceedings, admittedly, no proceedings were initiated against the petitioner despite the liberty granted by the appellate authority. Even in terms of the liberty granted by the Division Bench of this Court in Special Appeal vide judgment and order dated 19.9.2018, the respondents failed to initiate any proceedings against the petitioner. Admittedly, the petitioner retired on attaining the age of superannuation on 31.1.2019. Thus, it is apparent that despite a liberty being granted, the respondents failed to initiate any disciplinary proceedings against the petitioner and at the same time have deprived the petitioner from salary for the period subsequent to 26.8.1997 till the date of his retirement on 31.1.2019 despite, admittedly, there have been no disciplinary proceedings against him.

17. Consequently, the order dated 18.2.2019 vide which the petitioner has not been found entitled for payment of any salary subsequent to the dismissal order dated 26.8.1997 as well as subsequent order dated 21.09.2021 cannot be countenanced in any manner more particularly when, as already indicated herein above, no disciplinary proceedings have been initiated against the petitioner subsequent to the liberty granted either by the Division Bench of this Court or by the appellate authority through its order dated 28.2.2000.

18. Keeping in view the aforesaid discussion, the writ petition deserves to be allowed and is hereby allowed.

19. The orders impugned dated 18.2.2019 and 21.9.2021, copies of which are Annexures-7 & 11 to the petition, respectively, are quashed. The matter is remitted to the competent authority to pass a fresh order as expeditiously as possible, preferably, within a period of two months from the date of production of a certified copy of this order, pertaining to the salary of the petitioner along with other attendant benefits for the period from 26.8.1997 till his superannuation on 31.1.2019 keeping in view the discussion made above.

Order Date :- 26.9.2023

LN Tripathi