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2016 DIGILAW 3114 (ALL)

STATE OF U. P. v. CHHANGUR

2016-09-12

ALOK KUMAR MUKHERJEE, ARUN TANDON

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JUDGMENT By the Court.—Nobody is present on behalf of the respondent. The State of U.P. has filed this intra Court appeal under Chapter-VIII, Rule-5 of the Allahabad High Court rule against the judgment and order of the learned Single Judge dated 26.10.2010 passed in Writ Petition No. 16311 of 1996, Ghhangur v. State of U.P. and another. 2. Facts leading to the present appeal are as under: Chhangur (original petitioner) was working as ‘Meth’ in Public Works Department of the State of U.P. His services were terminated by the department under an order dated 5.5.1975, and further recovery of Rs. 180.20 paisa was directed (said to be the loss caused because of the actions or inactions on the part of Chhangur). Against the order of dismissal, Chhangur filed an appeal before the Superintending Engineer, which was rejected vide order dated 1.2.1977. The said orders were subjected to further challenge before the U.P. Public Services Tribunal. The Tribunal under order dated 14.3.1980 partly allowed the appeal. The order of termination was not interfered with, only the order of the Appellate Authority was set aside with a direction to decide the appeal as fresh. After the remand, the Superintending Engineer (Appellate Authority) again rejected the appeal vide order dated 6.7.1983. Not being satisfied Chhangur filed a fresh claim petition being Claim Petition No. 342/EK/4/1983. The Tribunal again allowed the appeal partly. After recording that the Appellate Authority has not carried out the directions issued earlier, set aside the order of the Appellate Authority and directed that the appeal be decided afresh and reasons be recorded on all issues which have been raised by Chhangu, since the order of Tribunal was not complied with in letter and spirit, cost of Rs. 500/- was also imposed upon the then Superintending Engineer. 3. While the matter was still engaging the attention of the Superintending Engineer, on renewal, Chhangur filed Writ Petition No. 16311 of 1996,with the following prayer: “Issue a writ, order or direction in the nature of mandamus commanding respondents to pay Rs. 500/- with 18% per annum as per direction of learned U.P.Service Tribunal passed in reference petition No. 342/EK/4/983 dated 28.10.1994 and to decide the appeal of the petitioner in pursuance of the afoesaid judgment and order of the Tribunal as well as in pursuance of the judgment and order of the Tribunal passed on 24.2.1980 in Reference Petition No. 324/T/1/4/19979.” 4. The learned Single Judge has allowed the writ petition after recording that right of appeal is a fundamental one and is provided by the Statute. For not consideration of the matter even after expiry of decades by the Appellate Authority in compliance to the direction by the Tribunal was fatal. The learned Single Judge has proceeded to quash the termination order and has directed reinstatement with full consequential benefit till the date of superannuation of Chhangur. It has also been recorded that since Chhangur has expired during pendency of the writ petition, the appeal has become futile. 5. It is against this order of Court the present intra Court appeal has been filed. 6. The learned Standing Counsel on behalf of the State submits that the relief which has been granted by the learned Single Judge is beyond the scope of the reliefs prayed for in the writ petition itself. He also submits that the order of the learned Single Judge is unsustainable inasmuch as because of the death of the employee the departmental appeal filed by him is not rendered redundant, if the legal heirs do not decide to contest the appeal, the dismissal order cannot be rendered illegal specifically, in circumstance when on two occasions, the Tribunal by remanding the matter to the Appellate Authority did not deem it fit and proper to set aside the termination order. 7. The learned Single Judge could have directed the disposal of the appeal in a time bound manner and even otherwise if the order of Tribunal has not been complied with by the Appellate Authority, suitable proceedings under the U.P. Public Services Tribunals Act itself were liable to be taken. Quashing of the order of termination in the facts of the case is uncalled. 8. It is also explained to the Court that after the termination order dated 5.5.1975, Chhangur had not worked in the establishment and, therefore, there could not have been any direction for full payment of salary for the period between the date of termination and the date of superannuation on the principle of no work no pay. It is submitted that in the facts of the case, it cannot be said that non taking of work from Chhangur by the Authority concerned was bad inasmuch as the order of termination dated 5.5.1975 was not interfered with at any point of time. 9. It is submitted that in the facts of the case, it cannot be said that non taking of work from Chhangur by the Authority concerned was bad inasmuch as the order of termination dated 5.5.1975 was not interfered with at any point of time. 9. We have examined the record of the present appeal. We may record that the appeal filed by an employee against the order of termination is not rendered infructuous or redundant mainly because the employee expires in the meantime, if the legal heirs of the employee want to contest the proceeding, they can make an appropriate application and the appeal has to be judged on its merits. 10. We in the facts of the case are also of the opinion that not taking of work from Chhangur after 5.5.1975 was not illegal as the termination order was never interfered by the Tribunal despite partly allowing the two reference applications twice as detailed above. On both the occasiond, the Tribunal only required the Appellate Authority to consider and decide the appeal afresh. On the principle of no work no pay, there could not have been a direction by the learned Single Judge to pay salary to Chhangur for the period he had actually not worked without adjudicating the merits of the order of termination. 11. We may record that the order of the learned Single Judge does not touch the merits of the order of termination in any manner. 12. For all the aforesaid reason, the judgment and order of learned Single Judge cannot be sustained, it is hereby set aside. The Superintending Engineer is directed to decide the appeal strictly in light of the order of the Tribunal, if already not decided, within four weeks from the date of receipt of certified copy of this order. All consequential actions shall be taken in accordance with the order to be passed in the appeal, the copy whereof shall be forwarded to the substituted respondents by registered post at the address disclosed in this appeal. 13. We further notice that in respect of the cost of Rs. 500/- which was awarded to Chhangur, he was paid a sum of Rs. 5000/- through a bank draft dated 11.10.2010. The judgment and order of the learned Single Judge is hereby set aside and the appeal is allowed subject to the directions issued above.