Division bench of High court set aside the order passed by the single bench of High court

Special Appeal admitted by condoning the delay and order passed by the single bench was set aside.

Writ-A No.29775 of 2000 (Adalat Singh Vs. Cane Commissioner and others).

Hon’ble Judge passed the order as follows-

9. The termination of petitioner, therefore, is founded on alleged misconduct hence punitive in nature and without holding any inquiry. Hence, order of termination passed by respondents authorities cannot be sustained.

10. In the result, writ petition is allowed. Impugned order dated 22.02.1990 (Annexure 25 to writ petition) is hereby set aside. The petitioner shall be entitled to all consequential benefits.”

HIGH COURT OF JUDICATURE AT ALLAHABAD

According to Hon’ble Judge, due procedures were not followed before terminating the employee so termination was liable to be quashed.

Latter on respondents filed following special appeal by satisfying the court of proper cause of delay so delay was condoned by the Hon’ble court.

Order passed in the special appeal-

11. A counter affidavit dated 9th August, 2004 on behalf of the respondent no.5-Secretary, Sahkari Ganna Vikas Samiti Ltd. Dhaulana, District Ghaziabad, was filed wherein it was stated that the petitioner had been terminated by means of an order dated 22nd February, 1990, in terms of a resolution passed by Sahkari Ganna Samiti and a copy thereof had been sent to him under a registered cover on the same date.

20. As such, the impugned judgment and order cannot be sustained and is liable to be set aside and is accordingly set aside.

21. Consequentially, the writ petition is liable to be dismissed and is, accordingly, dismissed.

22. This Special Appeal stands allowed.

Court No. – 7

Civil Misc. Delay Condonation Application No.Nil of 2020

Case :- SPECIAL APPEAL DEFECTIVE No. – 179 of 2020

Appellants :- Cane Commissioner, Uttar Pradesh, Lucknow and 8 others

Respondents :- Adalat Singh s/o Sri Ram Kailash, r/o Village Rangpura, P.O. Phaphamau, District Allahabad, presently posted in Sahkari Ganna Samiti Ltd. Simbhaoli, District Ghaziabad

Counsel for Appellants :- Ravindra Singh

Counsel for Respondents :- Hari Nath Tripathi

Hon’ble Biswanath Somadder,J.

Hon’ble Dr. Yogendra Kumar Srivastava,J.

1. After considering the submissions made by the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown in order to explain the delay in filing of the appeal and as such, the delay is condoned. The application for condonation of delay is accordingly allowed.

2. Office is directed to allot regular number to this defective appeal.

Order Date :- 3.3.2020

Shahroz/Monika

(Biswanath Somadder,J.)

(Dr. Y. K. Srivastava,J.)

AFR

Court No. – 7

Case :- SPECIAL APPEAL DEFECTIVE No. – 179 of 2020

Appellants :- Cane Commissioner, Uttar Pradesh, Lucknow and 8 others

Respondents :- Adalat Singh s/o Sri Ram Kailash, r/o Village Rangpura, P.O. Phaphamau, District Allahabad, presently posted in Sahkari Ganna Samiti Ltd. Simbhaoli, District Ghaziabad

Counsel for Appellants :- Ravindra Singh

Counsel for Respondents :- Hari Nath Tripathi

Hon’ble Biswanath Somadder,J.

Hon’ble Dr. Yogendra Kumar Srivastava,J.

1. This Special Appeal arises in respect of a judgment and order dated 29th May, 2019, passed by a learned Single Judge in Writ-A No.29775 of 2000 (Adalat Singh Vs. Cane Commissioner and others).

2. By the impugned judgment and order, the learned Single Judge was pleased to allow the writ petition by setting aside the impugned order dated 22nd February, 1990 with the observations that the writ petitioner was entitled to all consequential benefits.

3. The appellants before us are the Cane Commissioner, Uttar Pradesh, Lucknow and others.

4. The facts of the case reveal that the writ petitioner was appointed as a Class-IV employee at Sahkari Ganna Vikas Samiti Ltd. Dhaulana, District Ghaziabad in terms of an appointment order dated 3rd January, 1984. This appointment order which is annexed to the papers before us, reveals that his engagement was purely temporary and adhoc in nature. Thereafter on 22nd February, 1990 for reasons stated in the order issued on that date, his services were terminated.

5. For convenience, the said order dated 22nd February, 1990 is reproduced herein below along with the official English translation:-

^^lgdkjh xUuk fodkl lfefr fy0

/kkSykuk] ftyk xkft;kckn

jftLVMZ

i=kad 559@60 fnukad 22-02-90

vkns’k

Jh vnkyr flag

nSfud LVksj eSu

tksuy xUuk lsok izkf/kdkj.k dh cSBd fnukad 1-12-90 ds izLrko la[;k 6 ds vuqlkj vkidh lsok;sa yEch vof/k ls viuh M~;wVh ls vuqifLFkr jgus o vuq’kklu ghurk cjrus ds dkj.k fnukad 01-08-89 ls gh lekIr dh tkrh gSA

g0v0@22-02-90

lfpo

lgdkjh xUuk fodkl lfefr fy0

/kkSykuk ¼xkft;kckn½

dk;kZy; lgdkjh xUuk fodkl lfefr fy0 /kkSykuk ¼xkft;kckn½

i=kad— fnukd%—

izfrfyfi%& 1- ftyk xUuk vf/kdkjh xkft;kckn dks lwpukFkZ tksuy xUuk lsok izkf/kdkj.k ds izLrko la[;k 6 dh lR; izfrfyfi lfgr izsf”krA

lfpo

lgdkjh xUuk fodkl

lfefr fy0

/kkSykuk ¼xkft;kckn½

¼lR; izfrfyfi½**

(English Translation)–

“Cooperative Sugarcane Development Societies Ltd.

Dhaulana, District Ghaziabad

Registered

Letter No.559/60 Date-22/02/90

Order

Sri Adalat Singh

Daily Store man

As per resolution no.6 of the meeting of Zonal Sugarcane Service Authority held on 01.12.90, your service is terminated w.e.f. 01.08.89 itself due to being absent from duties for a long period and lack of discipline.

Sd/Illegible/22.02.90

Secretary

Cooperative Sugarcane Development Societies Ltd.

Dhaulana (Ghaziabad)

Office of the Cooperative Sugarcane Development Societies Ltd. Dhaulana (Ghaziabad).

Letter No… Date:…

Copy to:- 1. Forwarded to the District Sugarcane Officer, Ghaziabad for information along with the copy of resolution no.6 of Zonal Sugarcane Service Authority.

Secretary

Cooperative Sugarcane Development

Societies Ltd.

Dhaulana (Ghaziabad)

(True copy)”

6. The writ petitioners filed the writ petition on 11th July, 2000. The principal prayers made in the writ petition are as follows:-

(i) Issue a writ, order or direction in the nature of mandamus directing the respondent no.5 and 6 to pay the entire payment of the petitioner w.e.f. Nov. 1998 to May 1998 and also the bonus, allowances etc. and also direct the respondent no.6 to pay the current payments of the petitioner alongwith revised pay scale and increments.

(ii) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.3 to promote the petitioner on the post of Clerk and to pay the Pay Scale of Clerks as admissible on the rules.

Prayer (after amendment)

(iv) To issue a writ, order or direction in the nature of Certiorari quashing the impugned termination order dated 22.02.1990 passed by respondent no.5 already attached as C.A.-4 in counter affidavit filed on behalf of respondent no.5.”

7. The learned Single Judge upon considering the respective contentions of the parties as well as pleadings on record, proceeded to allow the writ petition by setting aside the order of termination dated 22nd February, 1990, with a further observation that the petitioner shall be entitled to all consequential benefits. The reasoning assigned by the learned Single Judge to support the order, is in the following terms:-

“4. For the purpose of present case, whether petitioner is ‘temporary’ or ‘permanent’ employee, the facts remains that by means of impugned order, he has been terminated with allegation that he has been unauthorizedly absent and therefore, has committed misconduct.

5. If that be so, such a termination is not a termination simplicitor but punitive in nature and such termination cannot be made without holding inquiry in accordance with Rules i.e. Rules 84 and 85 of U.P. Co-operative Societies Employees Service Regulations, 1975 (hereinafter referred to as “Regulations, 1975”.

x x x

9. The termination of petitioner, therefore, is founded on alleged misconduct hence punitive in nature and without holding any inquiry. Hence, order of termination passed by respondents authorities cannot be sustained.

10. In the result, writ petition is allowed. Impugned order dated 22.02.1990 (Annexure 25 to writ petition) is hereby set aside. The petitioner shall be entitled to all consequential benefits.”

8. A plain reading of the impugned judgment and order dated 29th May, 2019 reveals that the learned Single Judge did not go into the moot question as to whether discretionary jurisdiction of this Court under Article 226 of the Constitution of India is available to a person who sleeps over his rights for a considerably long period of time.

9. This answer is not forthcoming from a plain reading of the impugned judgment and order. While it is true that even a temporary servant may be entitled for protection if his/her services are sought to be terminated on account of misconduct, negligence, inefficiency or like, such a protection can only be afforded to a person who demonstrates palpable bona fides while approaching the writ Court.

10. The records of the case reflect that the writ petition was initially filed for the purpose of seeking a direction upon the respondent authorities for payment of his dues from November, 1989 to May, 1998, which was based on pleadings to the effect that payments had not been made to him from the month of August, 1989 onwards. To support the aforesaid contention, a copy of a representation addressed to the Cane Commissioner, U.P., was appended as annexure-2 wherein a claim was stated to have been made for payment of salary and other dues from the month of August, 1989.

11. A counter affidavit dated 9th August, 2004 on behalf of the respondent no.5-Secretary, Sahkari Ganna Vikas Samiti Ltd. Dhaulana, District Ghaziabad, was filed wherein it was stated that the petitioner had been terminated by means of an order dated 22nd February, 1990, in terms of a resolution passed by Sahkari Ganna Samiti and a copy thereof had been sent to him under a registered cover on the same date.

12. After a considerable lapse of time, an amendment application dated 14th July, 2017, came to be filed by the petitioner wherein it was stated that the counter affidavit dated 9th August, 2004 filed by the respondent no.5 indicated that his services stood terminated on 22nd February, 1990 and accordingly necessary amendments were being sought in the pleadings and the prayer clause so as to raise a challenge to the said termination order dated 22nd February, 1990.

13. The stand taken by the petitioner that he was not aware of passing of the termination order dated 22nd February, 1990, does not appear to be plausible. The non-payment of salary and other dues from November, 1989 onwards, which was set up as the basis for filing of the writ petition, seems to have a connection to the fact that the services of the petitioner stood terminated in the year 1990. The various representations, stated to have been submitted before the authorities, in the year 1998, raising a claim in respect of dues for the period 1989 onwards appear to have been made in order to create cause of action for filing of the petition.

14. Even if one goes by the pleadings in the writ petition, there is no explanation whatsoever as to why the petitioner chose to remain silent for a considerably long period of time before setting up a challenge to the termination order passed in the year 1990. The amendment sought by the petitioner seeking to incorporate the relief raising a challenge to the termination order was some time in the year 2017, whereas, as per the own case of the petitioner, the counter affidavit enclosing the termination order had been received by him in the year 2004 itself.

15. The stand taken by the petitioner with regard to knowledge of the termination order is ambivalent. On the one hand it is stated in paragraph 31 of the affidavit filed by the petitioner alongwith the first amendment application dated 14th July, 2017 that he became aware of the order of termination dated 22nd February, 1990, after the same was received by his counsel on 9th August, 2004, and on the other, it has been sought to be contended in paragraph 42 of the same affidavit that prior to 14th July, 2017 the petitioner was not aware of the termination order.

16. This apart, the principal relief as sought by the writ petitioner at the time of filing of the writ petition having been founded on pleadings to the effect that he had not been made any payment by the Sahkari Samiti in question since August 1989 onwards, and the petitioner choosing to raise a grievance in that regard by filing a writ petition in the year 2000, also does not inspire confidence as to the bona fides of the petitioner.

17. Inordinate delay in approaching the writ Court for reasons of want of bona fides or inaction or negligence would deprive a party from his rights of invoking the extraordinary discretionary jurisdiction of the Court. We may refer to the broad principles laid down in this regard in the decision in the case of Esha Bhattacharjee v Raghunathpur Nafar Academy and others1, which are being extracted below:-

“21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”

18. The exercise of jurisdiction under Article 226 is essentially discretionary in nature and in a case of negligence or deliberate gross-inaction or lack of bona fides on part of the party approaching the Court, it may not be appropriate to exercise such discretionary jurisdiction. An explanation which is ex facie concocted and based on fanciful grounds, would be liable to be rejected. Lack of bona fides imputable to a party would be a relevant and material consideration while granting reliefs to the party who approaches the writ Court.

19. We do not find from the judgment and order impugned before us any discussion or consideration on this aspect of the matter.

  1. 20. As such, the impugned judgment and order cannot be sustained and is liable to be set aside and is accordingly set aside.

    21. Consequentially, the writ petition is liable to be dismissed and is, accordingly, dismissed.

    22. This Special Appeal stands allowed.

    Order Date :- 3.3.2020

    Shahroz/Monika

 

 

(Biswanath Somadder,J.)

 

 

 

(Dr. Y. K. Srivastava,J.)

 

 

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Preeti Singh
7 months ago

Undoubtedly our judiciary lacks accountability which resulted in promotion of tyranny and arbitrariness in the judiciary. If the communication sent through registered post, then it should reach to the addressee. Once a registered letter was sent to registrar general by Yogi M. P. Singh as appeal against denial of information but this registered letter did not reach to him as told by representative of CPIO High court before chief information commissioner of India. While postal department proved that registered letter was received by the office of registrar general High court of judicature at Allahabad.

Arun Pratap Singh
7 months ago

There must be transparency and accountability in the working of the judiciary. Even many chief justice of India accepted irregularities in the judiciary. They accepted judgements are sold in this largest democracy in the world. It is obligation of every judicial member to ensure transparency and accountability in the judiciary so that faith of common people may enhance in the judiciary of this country. At present, people wants out of court settlement because they know that they will never get justice in this dilapidated judiciary.

Beerbhadra Singh
Beerbhadra Singh
7 months ago

Whether huge backlog of the pending cases in the judiciary is not showing its failure? Why Government of India is not paying attention towards the dilapidated Judiciary of this country? Here this question arises that in order to curb the corruption in the judiciary why order of the apex court of India was overlooked by the government of India as not a single closed circuit television camera was installed by the government of India in any Court of this country?

Bhoomika Singh
Bhoomika Singh
7 months ago

If the aggrieved petitioner who challenged the order of termination and saying that termination order was not provided him but Court is saying that he was served the order of termination on the same date of dismissal then it must be investigated by the competent authority because there are certain circumstances in which it is not confirm that Postal department might have provided him termination order. In this serious matter confirmation of the receipt of the termination order must be ensured otherwise there may be miscarriage of Justice. There are Grounds in the justice delivered by the single bench as well. Right to reason is the indispensable part of sound judicial system which has not been overlooked by the single judge bench.