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2016 DIGILAW 2328 (ALL)

SANTOSH KUMAR v. STATE OF U. P.

2016-07-06

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner is a collection Amin. He has instituted this writ proceeding for a direction to the second respondent-Collector, district Gautam Budh Nagar to decide his appeal within a stipulated time. 2. Essential facts are that petitioner was initially appointed as collection Amin in the year 1997. While he was posted at Dadri, district Gautam Budh Nagar, he was placed under suspension on 10.1.2001 and disciplinary proceedings was initiated against him. Charge-sheet was served upon him on 10.2.2001 and after completion of the disciplinary proceedings, major punishment was imposed on him of withholding three annual increments permanently and it was also provided that he would not be paid any salary during the suspension period. Services of the petitioner are governed under statutory Rule namely U.P. Collection Amin’s Service Rules,1974. The petitioner preferred an appeal under Rule 11 of the U.P. Government Servant (Discipline and Appeal) Rules,1999, before the second respondent on 25.7.2001. Grievance of the petitioner is that inspite of several applications for disposal of his appeal, the same is still pending before the second respondent. 3. Learned counsel for the petitioner submits that there is no justifiable reason for keeping his appeal pending for the last more than 15 years and he has placed reliance upon judgment of this Court in the case of Tilakdhari Ram v. State of U.P. and others (Writ Petition No. 49235 of 2015, decided on 1.9.2015). 4. Learned standing counsel submits that this Court may issue direction to the District Magistrate to decide the appeal within a reasonable time. 5. I have heard learned counsel for the petitioner and learned standing counsel. Perused the record. 6. The petitioner claims that he has filed appeal on 25.7.2001. Rule 11 of the 1999 Rules provides that against the order of disciplinary authority, appeal lies to the next higher authority. Rule 11 is extracted hereinunder : “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. (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. An appeal preferred after the said period shall be dismissed summarily. Against the order of the appellate authority, Rule 13 of the 1999 Rules provides a revision to the State Government and Rule 14 further provides review before the Governor. 7. From the reading of Rule 11, it is evident that its sub clause (4) provides 90 days’ limitation for filing of the appeal but it does not provide any time limit within which the appeal has to be decided. Although no time limit has been provided under Rule 11 to decide the appeal, it is a trite that if no period is provided in the statute, then Tribunal/appellate authority/authority concerned should take decision within a reasonable time. “Reasonable time” is not defined under the Rules. P. Ramnatha Aiyar’s “The Law Lexicon, 3rd Edition”, defines reasonable time as under : “Reasonable time”: That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer. “Reasonable time” is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. If it is proper to attempt any definition of the words “reasonable time” as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a “reasonable time” means as soon as circumstances will permit. 8. In determining what is reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments, and the fact of the particular case. 8. In determining what is reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instruments, and the fact of the particular case. A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than “directly”; such length of time as may fairly, and properly and reasonable be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea. Black’s law dictionary, defines “reasonable time” as under : 1. Contracts. The time needed to do what a contract requires to be done, based on subjective circumstances. If the contracting parties do not fix a time for performance, the law will usu. presume a reasonable time. 2. Commercial law. The time during which the UCC permits a party to accept an offer, inspect goods, and the like. 9. In the case of Mansaram v. S.P. Pathak, (1984) 1 SCC 125 , the Supreme Court held that when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner and reasonable time. The Court held as follows : “But when the power is conferred to effectuate a purpose, it has to be exercised in a reasonable manner. Exercise of power in a reasonable manner inheres the concept of its exercise within a reasonable time. Undoubtedly, no limitation is prescribed in this behalf but one would stand aghast that a landlord to some extent in pari delicto could turn the tables against the person who was in possession for 22 years as a tenant.” Similar view has been taken in the case of State of Punjab v. Bhatinda District Coop. Milk Producers Union Ltd., (2007) 11 SCC 363 , wherein the Supreme Court held that when there is no period of limitation prescribed under the Statute, the authority must exercise its jurisdiction within a reasonable time. It would depend upon the nature of the Statute, rights,,liabilities and other relevant factors. Relevant part of the aforesaid judgment reads as follows : 17. It would depend upon the nature of the Statute, rights,,liabilities and other relevant factors. Relevant part of the aforesaid judgment reads as follows : 17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo motu power can be exercised at any time. 18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What,however, shall be the reasonable period would depend upon the nature of the Statute, rights and liabilities thereunder and other relevant factors.” 10. Word “reasonable time” has been considered in various judgments of the Supreme Court and it depends upon facts of the each case. The Supreme Court in the case of Ashok Kumar Sahu v. Union of India, (2006) 6 SCC 704 , at page 715, has observed in paragraph No. 32 of the said decision as under: “32.We may observe that an appropriate order should be passed within a reasonable period. Normally, three months’ notice is required to be given as the said period is considered to be reasonable and it is expected that a decision would be taken within the said period. But the rule is not an inflexible one. It would depend upon the facts and circumstances of each case.” 11. This Court in the case of Tilakdhari Ram (supra) while dealing with identical situation, has held that whenever there is no reasonable time fixed in the statutory rules to decide the appeal/revision/review, the reasonable time should be treated to be three months and in case the authority concerned fails to dispose of appeal/revision/review within the said period from the date of its filing, he should record brief reasons for the delay. Relevant part of the order reads thus : “wherever there is no reasonable time fixed in the statutory rules of the State Government the reasonable period as held by the Supreme Court in the Ashok Kumar Sahu’s case (supra) should be treated to be three months and in case the officer concerned fails to dispose of the appeal, revision or review within three months of the date of filing of the same the reasons should be recorded by the concerned.” 12. It is pertinent to mention here that State Government in exercise of the powers conferred by proviso to Art. 309 of the Constitution, has framed U.P. Government Servant (Discipline and Appeal) Rules,1999, which are applicable to all Government servants except officers and servants of the High Court of Judicature at Allahabad. 13. As can be seen from the reading of Rule 11 that no time limit has been provided for disposal of the appeal. In some of the Service Regulations of Government Corporations, period has been provided i.e. ordinarily three months, but the 1999 Rules is silent about the period for disposal of the appeal. It is common experience that a large number of petitions are filed in this Court for only prayer that direction be issued to the Tribunal/Administrative authority/Quasi judicial authority to decide the appeal which is provided under statute/regulations /rules, within a stipulated period of time. Keeping in view huge volume of work of this Court, there is a need to lay down authoritatively a reasonable time, under which all statutory appeals/revision may be decided. 14. In addition to the above, the aggrieved Government servant against whom punishment has been awarded, particularly a major punishment, is required to file appeal as this Court ordinarily do not entertain the writ petition if the aggrieved Government servant approaches this Court bypassing the statutory appeal, on the ground of availability of alternative remedy. In case the appeal is not decided within a reasonable period, not only the Government servant but his whole family is made to suffer especially in case of the major punishment. If the appeal remains pending for a long time, the Government servant and his family is made to suffer without their any fault. The Supreme Court in long line of decisions has established the law that livelihood is a fundamental right and it is protected under Art. 21 of the Constitution. Thus, keeping the appeal/revision pending for unreasonable period violates fundamental right of the employee. 15. Concept of arbitrariness has been dealt with by the Supreme Court in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597 , wherein Constitution Bench of Seven Judges has held that any action on the part of the executive which is unreasonable,is arbitrary and violative of Art. 14 of the Constitution. This decision has been followed by the Supreme Court in unbroken line of decisions. 16. This decision has been followed by the Supreme Court in unbroken line of decisions. 16. Having regard to the law laid down above, it is evident that if appeal/revision is not decided for a long time, it is violative of Art. 14 and 21 of the Constitution. 17. Reverting to the case in hand, the appeal of the petitioner is pending for the last 15 years. There cannot be a justification for keeping the appeal/revision pending for such inordinate period. Even if the appellant/revisionist is not cooperating or delaying the matter, the authority should after giving no more opportunity, should decide the matter ex parte. As a sequel to above, I find that action of the respondents in keeping the petitioner’s appeal pending for the last 15 years, is arbitrary and illegal. 18. In view of the above, I hold that in the matter of major punishment, the appellate authority should make endeavour to decide the appeal within a reasonable time i.e. three months but it should not be later than six months. In case there is delay beyond six months, the authority concerned would record reasons for the delay occurred. Accordingly a direction is issued upon the second respondent No. 2-Collector, district Gautam Budh Nagar to decide the petitioner’s appeal expeditiously but not later than three months from the date of communication of the order. With the above direction, the writ petition stands finally disposed of. 19. The office is directed to send a copy of this order to first respondent-Principal Secretary (Revenue), to issue necessary directions to all the appellate authorities/revisional authorities (Commissioners and Collectors) to decide the appeals/revisions/review in the light of judgments of Supreme Court, referred hereinabove.