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2018 DIGILAW 1636 (ALL)

ORIENTAL BANK OF COMMERCE v. AYODHYA SINGH

2018-07-26

ANIL KUMAR, REKHA DIKSHIT

body2018
JUDGMENT By the Court.—Heard Sri Vinay Shanker, learned counsel for appellants, Sri S.P. Singh, learned counsel for respondents and perused the record. 2. Facts in brief of the present case are that respondent/Ayodhya Singh who was working in the Oriental Bank of Commerce has been dismissed from services by an order dated 25.7.2002. Thereafter, he filed an appeal, dismissed by the appellate authority by order dated 12.12.2002. 3. Dismissal and appellate order have been challenged by the respondent/Ayodhya Singh by fling Writ Petition No. 1031 (SS) of 2003 (Ayodhya Singh v. Oriental Bank of Commerce, New Delhi), allowed by order dated 12.7.2005, relevant portion quoted as under : “In view of the above, the order of dismissal dated 25.7.2002 and the appellate order dated 12.12.2002 are not sustainable and the same are quashed. The learned counsel for the petitioner has informed the Corut while concluding his arguments that the petitioenr had already attained the age of superannuation and now de novo departntal enquiry cannot be held agaisnt him. He had not caused any loss to the Bank. In these circumstances, this Corut cannot leave it open to the opposite parties to hold fresh enquiry against the petitioenr in accordance with law as after his retirement he has ceased to be an employee of the Bank. The writ petition is accordingly allowed.” 4. The order dated 12.7.2005 passed in Writ Petition No. 1031 (SS) of 2003 (Ayodhya Singh v. Oriental Bank of Commerce, New Delhi) has been challenged before this Court. 5. The first and foremost question which is to be considered in the present case is whether special appeal in the present matter against the order passed by learned Single Judge thereby setting aside the dismissal and appellate order is maintainable or not. 6. The answer finds place in the judgment rendered by Hon’ble the Apex Court in the case of State of U.P. v. Madhav Prasad Sharma, 2011 (2) SCC 212 , wherein it has been held as under : “Against the order of the learned single Judge, the State Government filed Special Appeal No. 614 of 2009 before the Division Bench of the High Court. Rule 5 of Chapter VIII of Allahabad High Court Rules, 1952 speaks about Special Appeal which reads as under : “Special Appeal.—An appeal shall lie to the Court from a judgment not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of Superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” It is fairly admitted that in view of the fact that against the order of termination the delinquent availed departmental appeal to the DIG, after the order of the learned single Judge no further appeal by way of special appeal before the Division Bench would lie. The materials placed and in view of the fact that the order of the SSP was considered and disposed of by the Appellate Authority, i.e., DIG and also of the fact that the order impugned in the writ petition was passed in exercise of appellate jurisdiction in terms of The Uttar Pradesh Subordinate Police Officers/Employees (Punishment and Appeal) Rules, 1991 (hereinafter referred to as “the Rules”), we concur with the conclusion arrived at by the Division Bench of the High Court in the impugned order. However, in view of the fact that this Court issued notice in the special leave petition as early as on 20.11.2009, after hearing the arguments of either side, we intend to consider the merits of the order of the learned single Judge dated 17.9.2008.” 7. However, in view of the fact that this Court issued notice in the special leave petition as early as on 20.11.2009, after hearing the arguments of either side, we intend to consider the merits of the order of the learned single Judge dated 17.9.2008.” 7. The said view was further reiterated by a Division Bench of this Court by order dated 16.8.2016 in Special Appeal Defective No. 340 of 2016 (State of U.P. and others v. Mukesh Kumar), relevant portion quoted as under : “Having considered the submissions raised, the provisions of Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 clearly indicate that a special appeal of the present nature would not be maintainable against the order of the learned Single Judge. (See State of U.P. v. Madhav Prasad Sharma, 2011 (2) SCC 212 ) The appeal is, therefore, dismissed as not maintainable.” 8. Accordingly, present special appeal is not maintainable before this Court under the provisions of Chapter VIII Rule 5of Allahabad High Court Rules, 1952. 9. For the foregoing reasons, the special appeal is dismissed as not maintainable.