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2003 DIGILAW 457 (ALL)

STATE OF U P v. RAKESH KUMAR MISHRA

2003-02-28

G.K.GUPTA, PRADEEP KANT

body2003
Heard learned counsel for the petitioners Sri Harshwardhan and Sri R. K. Singh, learned counsel appearing for respondent No. 1. 2. The State has filed this Writ petition challenging the order passed by the State Public Services Tribunal, Lucknow dated 26-8-1996 by means of which, the claim petition preferred by the respondent No. 1 against the order of punishment of dismissal from service has been set-aside and a direction has been issued that the petitioner shall be reinstated in service with all consequential benefits of arrears of pay, allowances and seniority etc. 3. Learned counsel for the petitioners-State could not point out any illegality in the finding recorded by the State Public Services Tribunal, but only submitted that since the dismissal order was set-aside on the ground of violation of principle of natural justice, an opportunity should have been given to the petitioners-State for holding fresh enquiry. 4. We have heard the learned counsel for the parties and perused the record and we find that the Tribunal has recorded findings after taking into consideration the statement made in the written statement by the State-petitioners in paragraph 3-B, wherein it has been stated that since the respondent No. 1 absented in the enquiry and enquiry was held in absentia, therefore, the copies of the documents were not supplied nor they were required to be supplied. Besides this, the Tribunal has also found that the witnesses were examined, but the claimant-respondent No. 1 was not given any opportunity to examine them. There are various other grounds on which the Tribunal has found that the claimant-respondent No. 1 was not allowed reasonable opportunity in the proceedings. 5. Even, if the enquiry proceeded in absence of the claimant-respondent No. 1, the admitted fact is that the claimant-respondent No. 1 had requested for the supply of the documents, which were to be relied upon in the enquiry proceedings and had also requested for adducing his defence witness, but both of his prayers were not accepted, therefore, the claimant-respondent No. 1 could not adduce any evidence. These are few amongst other reasons given by the Tribunal which, are sufficient for holding that the impugned order of punishment of dismissal from service passed by the State-opposite parties, was passed on the basis of an enquiry, which could not be said to be an enquiry in the eye of law. 6. These are few amongst other reasons given by the Tribunal which, are sufficient for holding that the impugned order of punishment of dismissal from service passed by the State-opposite parties, was passed on the basis of an enquiry, which could not be said to be an enquiry in the eye of law. 6. We, thus, do not find any illegality in the order passed by the State Public Services Tribunal. 7. Learned counsel for the petitioners-State has, however, submitted that it is the admitted fact that the claimant-respondent No. 1 remained absent without sanctioned leave except for three days for which his leave was sanctioned and that he has not worked for such a long time. He has further submitted that since the claimant-respondent No. 1 absented for long time, therefore, he should not be allowed back wages from the date of passing of the dismissal order till he is reinstated in service. He has further prayed that the opportunity be given to hold the enquiry afresh. 8. Normally, in a matter, where the order of punishment of dismissal from service is set-aside on the ground of violation of principle of natural justice or on other technical grounds, but not on merits, liberty is given to the State for holding enquiry afresh. It is also on given facts and circumstances in each and every case, the orders are passed curtailing the monetary benefits regarding payment of salary etc. for the period during which the employee does not remain in service. 9. In the case in hand, we find that the claimant-respondent No. 1 had gone on sanctioned leave for three days on 8-7-1985 and thereafter since he did not join the duties, the enquiry was initiated and concluded upon which a show cause notice was issued to the claimant-respondent No. 1 on 31-3-1986, to which the reply was submitted by the claimant-respondent No. 1 on 12-6-1986 and the punishment order was passed on 29-6-1986. This enquiry has been found to be absolutely faulty and no enquiry in the eye of law. The claimant-respondent No. 1 filed claim petition after filing the revision appeal on being unsuccessful in the year 1987, which was allowed, vide judgment and order dated 26-8-1996 i. e. after more than 9 years from the date of punishment. This enquiry has been found to be absolutely faulty and no enquiry in the eye of law. The claimant-respondent No. 1 filed claim petition after filing the revision appeal on being unsuccessful in the year 1987, which was allowed, vide judgment and order dated 26-8-1996 i. e. after more than 9 years from the date of punishment. The State, however, chose to file the present Writ petition challenging the aforesaid order in the year 1997 in which they did not succeed in getting any interim order, but even then, declined to implement the order passed by the Tribunal. The State Government or for that matter, any employer cannot be given liberty for committing deliberate violation and disobedience of the order passed by the Tribunal or any Court and in case, the State or the employer wishes to challenge the said order, that had to be done within reasonable time before appropriate forum. If any protection is given to the State from complying with the order by any higher Court, the State may act, accordingly, but if there is no such protection given or there is no stay order in favour of the State, liberty cannot be taken in not complying the order nor mere filing or pendency of a Writ petition would deprive the person concerned to have the fruits of the order. 10. We take judicial notice of the fact that in very many cases, the State does not file the Writ petition against the orders passed by the Tribunal for a considerable long time, till the contempt proceedings are initiated against the authorities, but during all these period, the orders are not complied with and in many very cases, even if, the Writ petition is filed or the order of the Tribunal is challenged, the State continues with its attitude of not complying with the orders, though it does not succeed in getting any interim order staying the operation or execution of the orders passed by the Tribunal. The State is under legal obligation to comply with the orders passed by the Tribunal and not to withhold their compliance till they are forced to comply the orders under the contempt jurisdiction of the Court or the Tribunal. The State is under legal obligation to comply with the orders passed by the Tribunal and not to withhold their compliance till they are forced to comply the orders under the contempt jurisdiction of the Court or the Tribunal. It is only in cases, where the Writ petitions challenging the orders of the Tribunal, are filed within reasonable time and interim orders of stay are granted in favour of the State, the order passed by the Tribunal would not be complied with, but inaction on the part of the State in challenging the order of the Tribunal within reasonable time or in the absence of any stay order being passed in their favour, the State and its authorities have no jurisdiction or authority to sit tight over the matter and thereby deprive the person the fruits of the order. The action of the State or its authorities cannot be taken for inflicting or enhancing the agony of a litigant, who under his well-protected right, takes legal course of law for vindicating his right. The judicial process of seeking remedy in the Court of law cannot be converted into a mirage nor merely an eyewash the responsibility rests upon the State and its authorities to follow the orders. The approach to a Court by a litigant is not for any spiritual satisfaction, but for materialistic gain and enforcement of its legal right. The gain so accrued in favour of the litigant cannot be negated and the litigant cannot be placed in square one position by the State by adopting such delaying means and by deliberately taking long time in complying with the orders. 11. We cannot appreciate the conduct of the State in not reinstating the respondent No. 1, despite the order passed by the Tribunal as far back as in the year 1996, although there was no stay order in their favour. We would further like to observe that the observations made in this order require consideration by the higher authority of the State. We would further like to observe that the observations made in this order require consideration by the higher authority of the State. The State would be well advised to issue appropriate directions to all the Heads of the Department concerned for immediate compliance of the orders of the Court or the Tribunal and in case the State feels that the orders deserve to be challenged, such challenge be made in the appropriate forum within the limitation prescribed, if any, or within the reasonable time, as the case may be. Failure on the part of the State in not challenging the orders within time or in case, even if, the orders are challenged, where no stay order is passed in favour of the State, the State could not refuse the compliance of the orders. The delay in complying with the Courts order or its non-compliance without any protection from the higher Court not only is a cause of multiplicity of litigation, compelling the person in whose favour the order is passed to file contempt petition, but also defeats the very right of the employee to have speedy justice. Deliberate non- compliance or delayed compliance of the Courts order has to be viewed with serious concern calling for appropriate departmental action for gross dereliction of duty etc. against the erring officer/official in addition to the other remedies provided under law, may be initiation of contempt proceedings or otherwise. 12. For the aforesaid reasons, we do not find that the respondent No. 1 should be subjected to any enquiry afresh. The respondent No. 1 has already suffered immense agony because of the States refusal to comply with the orders passed by the Tribunal in the circumstances stated above, and also for the reason that the punishment order of the year 1986, was set-aside after long drawn litigation in the year 1996. 13. The Writ petition is dismissed. Let a copy of this order be sent to the Chief Secretary, Government of Uttar Pradesh, Lucknow, for issuance of appropriate direction to all the Heads of the concerned department. Petition allowed. .