High Court · 2025 on 05 Feb 2025

Judgment

1. Heard Sri Anand Singh learned counsel for the petitioners and Sri Vivek Saxena learned counsel for the respondent.

2. By means of the instant Writ Petition filed under Article 226 of the Constitution of India, the petitioners-(i) State of U.P. and (ii) Director

of Basic Education have challenged the validity of the judgment and order dated 31.01.2024 passed by the State Public Services Tribunal, U.P. in Claim Petition No. 1365 of 2023. The aforesaid Claim Petition was filed by the opposite party challenging an Office Memorandum dated 24.9.2020 by which punishment of censure entry and withholding of two increments temporarily for two years were imposed upon him.

3. The allegation against the opposite party was that while he was posted as Zila Basic Shiksha Adhikari at Pilibhit during the year 2014-2015, he had wrongly issued some transfer orders in collusion with one Sri Sanjay Singh, Senior Clerk. The second charge against him was that an ineligible candidate Sri Abdul Hameed was wrongly selected as an Urdu Teacher and his file was dealt with by Sanjay Kumar Singh. Although the appointment of Sri Abdul Hameed was cancelled on the date of appointment itself, i.e. on 15.01.2014. The opposite party wrongly made him join his duty on 21.01.2015. The third charge against the opposite party was that Sri Sanjay Kumar Singh was transferred by means of an order dated 16.08.2014 but the opposite party did not relieve him and his transfer was ultimately cancelled on

30.11.2014 in furtherance of a representation submitted to the Joint Director, Education, Bareilly.

4. The opposite party submitted a reply denying the charge leveled against him. The inquiry officer submitted his report dated 4.10.2017 in which charge no. 1 was found proved, charge no. 2 was found partially proved and the charge no. 3 was found not proved. The disciplinary authority passed an order dated 24.09.2020 in which the opposite party was held guilty of charge no. 1 only.

5. The opposite party submitted a review representation dated

20.11.2020 but no decision was taken thereon.

6. The Tribunal found that no date, time and place of the inquiry had been fixed and no opportunity was given to the opposite party to inspect the relevant records or cross-examine the witness and to lead evidence in his defence.

7. The learned Standing Counsel has submitted that the claim petition was barred by limitation provided in Section 5 of the State Public Services Tribunal Act and although this plea was specifically taken in the objections filed before the Tribunal, the Tribunal has allowed the claim petition without dealing with this question. The learned Standing Counsel has relied upon the decision rendered by Division Bench of this court in the case of Murad Ahsan v. State of U.P., 2022 SCC OnLine All 1207, wherein this court has held that the time spent in preferring memorial to the Governor whereas there was no statutory provision to make such a representation would not enlarge the period of limitation.

8. Replying to the aforesaid submission, Sri Vivek Saxena, the learned counsel for the opposite party has submitted that the opposite party had pleaded in the claim petition that the impugned punishment order was passed on 24.09.2020. On 20.11.2020, he had submitted a review representation before the competent authority. When no decision was taken thereon, he submitted another representation dated 31.01.2022 and ultimately he sent a legal notice dated 18.05.2023 requesting to take a decision on his representations dated 20.11.2020 and

31.01.2022 within a month, otherwise he would approach the Court, but still no decision was taken on his representation. In these circumstances, the claim petition was not time barred.

9. Before dealing with the aforesaid submissions it will be appropriate to have a look at the relevant provisions contained in Sections 4 and 5 of the U.P. Public Services Tribunal Act, which are being reproduced below: - “4. Reference of claims to Tribunal (1) Subject to the other provision of this Act, a person who is or has been a public servant and is aggrieved by an the order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance. Explanation: For the purpose of this sub-section “order” means an order or omission or in-action of the State Government or a local authority or any other corporation or company referred to in clause (b) of section 2 or of an officer, committee or other body or agency of the State Government or such local authority or Corporation or company: * * * (5) The Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievances. (6) For the purposes of sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting any appeal preferred or representation made by such public servant in connection with the grievance: Provided that where no final order is made by the State Government, authority, officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him. (7) For the purposes of sub-section (5) and(6) any remedy available to the public servant by way of submission of a memorial to the Governor or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial.”

5. Powers and procedure of the Tribunal: (1) (a) The Tribunal shall not be bound by the procedure laid down in the code of civil procedure, 1908, or the rules of evidence contained in the Indian Evidence Act, 1872, but shall be guided by the principles of natural justice, and subject to the provisions of this section and of any rules made under section 7, the Tribunal shall have power to regulate its own procedure (including the fixing of places and times of its sittings and deciding whether to sit in public or in private : Provided that where, in respect of the subject matter of a reference, a competent court has already passed a decree or order or issued a writ or direction, and such decree, order, writ or direction has become final, the principal of res judicial shall apply; (b) The provisions of the Limitation Act, 1963 shall mutatis mutandis apply to reference under section 4 as if a reference were a suit filed in civil court so, however, that:- (i) Notwithstanding the period of limitation prescribed in the Schedule to the said Act, the period of limitation for such reference shall be one year; (ii) In computing the period of limitation the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor), in accordance with the rules or orders regulating his conditions of service, and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal, revision or petition, as the case may be, shall be excluded: Provided that any reference for which the period of limitation prescribed by the Limitation Act, 1963 is more than one year, a reference under section 4 may be made within the period prescribed by that Act, or within one year next after the commencement of the Uttar Pradesh Public Services (Tribunals) (Amendment) Act, 1985, shall affect any reference made before and pending at the commencement of the said Act. Provided further that nothing in this clause as substituted by the Uttar Pradesh Public Service (Tribunals) (Amendment) Act, 1985, Shall affect any reference made before and pending at the commencement of the said Act.

10. Rule 14 of the U.P. Government Servant (Discipline and Appeal) Rules, 1999 provides as follows: - “14. Review.-The Governor may at any time, either in his own motion or on the representation of the concerned Government servant, review any order passed by him under these rules, if it has brought to his notice that any new material or evidence which could not be produced or was not available at the time of passing the impugned order or any material error of law occurred which has the effect of changing the nature of the case.”

11. A bare perusal of the aforesaid statutory provision makes it clear that the period of limitation for filing a petition before the Public Services Tribunal is one year from the date of passing of the punishment order. In computing the period of limitation, the period beginning with the date on which the public servant makes a representation or prefers an appeal, revision or any other petition (not being a memorial to the Governor) in accordance with the Rules or Orders regulating his conditions of service and ending with the date on which such public servant has knowledge of the final order passed on such representation, appeal revision or petition shall be excluded. The period spent during pendency of a memorial to the Governor will not be excluded while computing the period of limitation, but a review representation submitted under Rule 14 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 is not a ‘memorial’ mentioned in Sections 4 and 5 of the State Public Services Tribunal Act, rather it is a statutory application for review. As the petitioner had filed a statutory application for review the period spent during pendency of the review petition would stand excluded while computing the period of limitation under Section 5 of State Public Services Tribunal Act.

12. In Murad Ahsan (Supra) the memorial submitted by the petitioner was not referable to any statutory provision and, therefore, the court had held that the period spent during pendency of the memorial would not extend the time of limitation but where the opposite party has submitted a review representation under Rule 14 of U.P. Government Servant (Discipline and Appeal) Rules, 1999, the period during which the representation remained pending will be excluded while computing the period of limitation as per the provision contained in Section 5 (1) (b) (ii) of the Tribunal Act.

13. Therefore, we do not find force in the submissions of the learned Standing Counsel that the claim petition filed by the opposite party was barred by limitation.

14. The Tribunal has held that the charges leveled against the opposite party were vague and there was no mention of any specific act or omission on the part of the petitioner. The petitioner was not afforded opportunity of personal hearing during inquiry. The Tribunal referred to the reply to the charge no. 1 submitted by the opposite party wherein he had only made transfer of 34 teachers after taking approval from the District Magistrate and he had not made any other transfer. The disputed transfer orders had been prepared by Sri Sanjay Singh by committing forgery and the then Basic Education Officer had filed an F.I.R. dated 05.04.2018 against Sri Sanjay Singh and after investigation, the police had submitted a charge-sheet in the matter against Sri Sanjay Singh.

15. The Tribunal found that the disciplinary authority has merely stated that the explanation offered by the petitioner regarding charge no. 1 was not found to be satisfactory but it did not assign any reason for discarding the petitioner’s explanation which made the impugned punishment order non-speaking and unreasoned. The Tribunal further recorded that there was no bad intention or ill motive on the part of the opposite party and, therefore, his act does not fall within the category of “Misconduct “ and he may not be punishment for acts which do not amount to misconduct.

16. Assailing validity of the judgment and order passed by the Tribunal, learned Standing Counsel has submitted that the petitioner had passed the transfer orders after closure of the transfer sessions and without obtaining sanction from the District Magistrate.

17. The Tribunal has already dealt with this point in detail and has recorded the explanation given by the opposite party that he had not passed the transfer orders in dispute. Rather the same had been prepared by one Sanjay Singh by committing forgery and an F.I.R. in this regard was lodged against Sri Sanjay Singh and the police submitted a charge-sheet against him after investigation. The aforesaid finding of fact recorded by the Tribunal has not been assailed by the petitioners.

18. In absence of the finding of fact suffering from any perversity, this Court cannot interfere in the same.

19. In view of the foregoing discussions, we find no find any merit in the petition and the same is accordingly dismissed. (Subhash Vidyarthi J.) (Attau Rahman Masoodi J.) Order Date: 05.02.2025 kanhaiya KANHAIYA KUMAR High Court of Judicature at Allahabad, Lucknow Bench