Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2829 (ALL)

Mewa Lal v. State of U. P. & Ors

2010-09-15

A.P.SAHI

body2010
Hon'ble Amreshwar Pratap Sahi,J. :- Heard learned counsel for the parties. The petitioner was a Lekhpal and he was subjected to a criminal trial and disciplinary proceedings in respect of a revenue transaction. The petitioner was punished vide order dated 25.11.2005 by the Sub Divisional Magistrate, Manjhanpur, Kaushambi. The punishment order records that subject to the outcome of the criminal trial the petitioner can still be proceeded against in departmental proceedings. Secondly the payment of salary for the period as indicated therein shall be subject to any further order being passed in the criminal trial or in the departmental proceedings if conducted. The petitioner was allowed to continue and receive salary with effect from 3rd October, 2005 onwards. An appeal was filed by the State of U.P. before the Collector questioning the said order dated 25th November, 2005 and the same has been allowed by the Collector vide order dated 15.2.2008. By the said appellate order the petitioner has been dismissed from his initial post and recovery has been ordered with regard to the salary for the period as referred to therein which subject to further orders being passed in the criminal trial. Apart from the other submissions raised learned counsel for the petitioner Sri Mithilesh Tiwari submits that the appeal was totally incompetent inasmuch as no appeal lay to the Collector on behalf of the State Government. He submits that the entire proceedings before the appellate authority are without jurisdiction. Learned Standing Counsel contends that the authority has power to revise the order and therefore the order does not require any interference. Rule 11 is quoted below: "11. Appeal.- (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority. (2) The appeal shall be addressed and submitted to the Appellate Authority. A Government Servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily." A perusal of the said Rule would demonstrate that except for the orders passed under the rules by the Governor, the Right of Appeal has been conferred only on the government servant to file it before the next Higher Authority against an order passed by the Disciplinary Authority. The Right of Appeal has therefore been conferred on the delinquent employee and not on the State Government. In the instant case the appeal has been filed by the State Government before the Collector. In the opinion of the Court, no such appeal was maintainable nor any such right is conferred on the State Government. An appeal is a creature of the statute and such a right cannot be availed by fiction. The next provision which is available under the said rule is the power of revision by the State Government. The State Government itself on its own motion or on the representation of the government servant can call for the records of a case and revise any order passed by the authorities subordinate to the legislature. A further provision of review is contained in Rule 14 where His excellency the Governor at any point of time either on his own motion or on the representation of the government servant can review any order passed by him, provided it is brought to the notice of the Governor that any new material facts or evidence which could not be produced or was not available can be taken into consideration which does not have the effect of changing the nature of the case. In the instant case neither the State Government exercised its power under Rule 13 nor any such power was exercised by the Governor under Rule 14. It is the State Government which has filed an appeal before the Collector. The aforesaid procedure adopted is totally erroneous and beyond the competence of the authority. The Collector ought to have taken notice of this before having proceeded to decide the appeal. It is the State Government which has filed an appeal before the Collector. The aforesaid procedure adopted is totally erroneous and beyond the competence of the authority. The Collector ought to have taken notice of this before having proceeded to decide the appeal. A perusal of the records indicates that the memo of appeal itself indicates that the Appeal was being preferred under Rule 11. As discussed above there is no right of appeal conferred on the State Government under Rule 11 nor did the Collector have any power to decide the same. The entire proceedings are therefore corum non judice as conducted by the Collector under the appellate order dated 15.2.2008 which is nonest and is hereby set aside. The writ petition is allowed. No order as to costs.