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2020 DIGILAW 244 (MP)

Mathura Prasad Tripathi v. State Of M. P. And Others

2020-02-14

AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA

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JUDGMENT Vijay Kumar Shukla, J. - The present intra-court appeal is filed under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 being aggrieved by the order dated 26-9-2019 passed by the learned Single Judge in WP-18699-2011, whereby the writ petition filed by the appellant challenging termination of his services remained unsuccessful. The writ petitioner filed a writ petition challenging the order dated 30-8-2011 passed by the departmental appellate authority affirming the decision taken by the disciplinary authority regarding termination of services of the petitioner. 2. The facts of the case, briefly stated, are that the writpetitioner/appellant was appointed in the year 1967 as Forest Guard at Umaria. He was sent on deputation to the M.P. Rajya Laghu Van Upaj Vyapar Evam Vikas Sahakari Sangh Maryadit by order dated 29-9-1989. The said order was challenged before the erstwhile State Administrative Tribunal [for brevity, "the Tribunal"] and the Tribunal directed to maintain the status quo. It is pleaded that the writ petitioner was not allowed to join the duty on the ground that he had already been relieved on 5-10-1989. By order dated 27-6-1998 service of the petitioner was terminated. The petitioner preferred a departmental appeal against the said order which was also rejected by order dated 7-4-1999. The order of termination and the order passed by the appellate authority were challenged by the appellant/writ-petitioner before this Court in WP-13787-2003 which was partly allowed by order dated 17-7-2011 by remanding the matter tot he appellate authority to pass a fresh order in accordance with Rules. The appellate authority was directed to reconsider the question of imposing extreme penalty and consider the propriety of imposing alternate penalty. After remand on 17-7-2011 the appellate authority passed a fresh order and maintained the order passed by the disciplinary authority. However, considering the facts of the present case held that the period of absence from 5-10-1989 to 27-6- 1998 directed to be converted into dies non. He directed the concerned authority to send a separate proposal in that regard to the State Government. As per order passed by the appellate authority the State Government passed the order dated 30-8-2011 and the period of absence from 11-6-1991 to 27-6-1998 was declared to be dies non. 3. He directed the concerned authority to send a separate proposal in that regard to the State Government. As per order passed by the appellate authority the State Government passed the order dated 30-8-2011 and the period of absence from 11-6-1991 to 27-6-1998 was declared to be dies non. 3. Learned counsel for the appellant submitted that finding of the departmental appellate authority that the petitioner has remained absent from work for the period 5-10-1989 to 27-6-1998 is erroneous. According to him he has signed the diary showing his presence for the said period. The learned Single Judge after considering the aforesaid argument and on perusal of the record held that it is inconceivable to think that a person would work for the period 5-10-1989 to 27-6-1998 even without any demand of salary for the said period. The contention of the appellant that he had worked for the said period was not accepted. The authorities have taken into consideration the fact that the writ-petitioner/appellant was claiming to have signed the diary for the said period because of interim order passed by the Tribunal and held that the petitioner be not deprived from other claims for the said period even after termination and, therefore, the appellate authority asked for sending a proposal to the State Government for declaring the said period to be dies non. 4. Learned counsel for the appellant submitted that the learned Single Judge erred while dismissing the writ petition. He assiduously argued that once the order of the appellate authority was set aside by the High Court in the earlier round of litigation in WP13787-2003, then the appellate authority after remand could not have restored the earlier order passed by the disciplinary authority. It is contended that the order passed by the disciplinary authority has already merged with the order of the appellate authority and once the order of the appellate authority was set aside by this Court in the earlier writ petition, then reviving of earlier order of the disciplinary authority is wholly illegal and arbitrary. To buttress his submissions he has placed reliance on the judgment rendered by the Apex Court in Kunhayammed and others vs. State of Kerala and another, 2000 6 SCC 359 . 5. We do not perceive any merit in the aforesaid arguments. Doctrine of merger would not apply in the present case. To buttress his submissions he has placed reliance on the judgment rendered by the Apex Court in Kunhayammed and others vs. State of Kerala and another, 2000 6 SCC 359 . 5. We do not perceive any merit in the aforesaid arguments. Doctrine of merger would not apply in the present case. This Court in the first round of litigation in WP-13787-2003 set aside the order passed by the appellate authority on the ground that the order passed was not a speaking order and it was passed without application of mind. The matter was remanded back to the appellate authority with a direction to pass an order afresh in accordance with Rules. Thus, this Court has never commented on the legality of the order passed by the disciplinary authority. The order passed by the appellate authority was quashed mainly on the ground that the order was a non-speaking order. The relevant part of the order passed in WP-13787-2003, dated 17-02-2011 reads thus : "In that view of the matter, this petitions is allowed in part. Order of the Appellate Authority Annexure-A/17 is quashed and the matter is remanded back to the appellate authority. It is directed that on the petitioner's filing certified copy of this order along with a copy of memorandum of appeal and additional submissions, if any, to be made by the petitioner, the appellate authority shall decided the appeal afresh in accordance with law. While doing so the question of imposing the extreme penalty of removal /termination from service shall also be decided. Accordingly, the appellate authority is directed to reconsider the question of imposing extreme penalty and consider the propriety of imposing alternate penalty. Accordingly the appellate authority is directed to pass fresh order in accordance with rules within a period of two months from the date of receipt of certified copy of this order. In case, appellate authority passes an order modifying the order of penalty, the appellate authority shall also pass appropriate orders with regard to regularization of the intervening period during which petitioner has remained out of service." 6. In view of the aforesaid, the judgment pressed into service by the learned counsel for the appellant would not render any assistance in the facts of the present case. 7. In view of the aforesaid, the judgment pressed into service by the learned counsel for the appellant would not render any assistance in the facts of the present case. 7. In the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple and others, 1996 3 SCC 52 , the Apex Court ruled that in an intra-court appeal the appellate Court is a Court of Correction which corrects its own orders, in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of subordinate court. In such appellate jurisdiction the High Court exercises the powers of a Court of Error. 8. We do not find any illegality in the impugned order passed by the learned Single Bench warranting any interference in this intra-court appeal. Accordingly, the writ appeal deserves to and is hereby dismissed. No order as to costs.