The Special Appeal arises from a judgment of the learned Single Judge dated 27 November 2013 by which the petition filed by the first respondent was allowed with costs and a direction was issued for the payment of back wages, allowances and privileges to the first respondent from 1992.
The first respondent was a Class III employee in the judgeship of Rampur where he was appointed as Copiest on 1 August 1987. The disciplinary proceedings were commenced against him on a charge of manipulation of judicial records and he was placed under suspension on 25 May 1992. The charge sheet was issued to the first respondent on 7 April 1993 and a supplementary charge sheet was issued on 1 March 1997. The Special Judge, Rampur who was appointed as inquiry officer submitted a report on 16 July 2003 and held that the charges were not proved. The District Judge, Rampur disagreed with the report of the inquiry officer and directed that a further inquiry be held by an Additional District Judge who was appointed as the new inquiry officer. On 22 February 2007, the Additional District Judge submitted a report holding the first respondent guilty of the first and second articles of the charges. On 7 September 2007 a notice to show cause was issued to the first respondent by the District Judge calling upon him to show cause why he should not be dismissed from service. The first respondent submitted a representation upon a consideration of which the District Judge, Rampur passed an order on 20 September 2007 dismissing him from service. The first respondent filed an appeal before the learned Administrative Judge under Rule 7(2)(b) of the U.P. Subordinate Court Staff (Punishment & Appeal) Rules, 1976. The appeal was decided by the Administrative Judge by an order dated 28 March 2011. The Administrative Judge directed reinstatement of the first respondent in service but denied him arrears of salary for the period during which he had not worked. Another representation that was submitted by the first respondent was rejected by the Administrative Judge. The first respondent filed writ proceedings under Article 226 of the Constitution. By the impugned judgment and order of the learned Single Judge, the petition has been allowed and payment has been directed to be made to the first respondent of all the back wages, allowances and other privileges from 1992 until date. Costs have been awarded in the amount of Rs.25,000/-.
The submission which was urged before the learned Single Judge was that denial of arrears of salary to the first respondent was illegal and without jurisdiction on the ground that no such punishment was prescribed under the Rules and in the garb of reducing the punishment, arrears of salary could not have been denied. The learned Single Judge observed that the Appellate Authority did not find the order of dismissal to be correct and consequently directed reinstatement. According to the learned Single Judge, the denial of back wages was a punishment imposed by the Appellate Authority and since the Rules do not provide for imposition of such a punishment, the order was contrary to the statutory Rules and hence a nullity.
Learned counsel appearing on behalf of the appellant submits that the impugned order of the learned Single Judge is based on a patent misreading of the order passed by the learned Administrative Judge as Appellate Authority. It has been urged that denial of back wages in the present case was not imposed by the learned Single Judge as a punishment. The learned Administrative Judge held that this was fit and proper case for reducing the extreme penalty imposed upon the first respondent on humanitarian grounds and consequently directed reinstatement. However, back wages were denied not by way of punishment but for the reason that while ordering reinstatement, an order has necessarily to be passed in terms of the Financial Handbook in regard to the pay and allowances payable to a government servant for the period of his absence from duty including the period of suspension preceding his dismissal.
On the other hand, it is urged on behalf of the first respondent that if the order of the Administrative Judge is properly construed it would appear that the Appellate Authority had arrived at a finding that the charge of misconduct was not proved and once, a charge of misconduct was held not to have been proved, the first respondent was entitled to reinstatement and a consequential order of back wages was necessary. There being no statutory penalty of reducing the quantum of back wages, the learned Single Judge was justified in setting aside the order of the learned Administrative Judge and ordering full back wages.
The rival submissions now fall for consideration.
The judgment of the learned Single Judge would indicate that the only submission which was urged by the first respondent at the hearing of the petition was that denial of arrears of salary to the first respondent was without jurisdiction since no such punishment is prescribed under the Rules and in the garb of reducing the punishment, arrears of salary could not have been denied. This is the only ground which weighed with the learned Single Judge because the impugned judgment proceeds to hold that the denial of back wages is not one of the prescribed penalties and hence cannot be imposed by way of a punishment. There is a fundamental fallacy in the submission which was urged before the learned Single Judge and which found acceptance in the impugned order. At the outset, it is necessary to note that a plain reading of the order of the learned Administrative Judge would indicate that as an Appellate Authority, the learned Judge was of the view that the punishment of dismissal was disproportionate and "appears to be highly excessive". On this ground, the learned Administrative Judge directed reinstatement. However, back wages were denied. There is nothing in the order of the learned Administrative Judge to indicate that the denial of back wages was by way of a punishment.
Rule 54 of the Uttar Pradesh Fundamental Rules, in so far as it is relevant, provides as follows:-
"54(1). When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make specific order -
(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty."
Hence, it is clear that when an order of dismissal is set aside in appeal or review and the Government servant is reinstated, the authority competent to order reinstatement is required to pass a specific order regarding pay and allowances payable for the period of absence from duty including the period of suspension. Moreover, the authority has to determine as to whether or not the said period shall be treated as a period spent on duty.
Hence, the order of the learned Single Judge proceeded on a completely incorrect premise that the denial of back wages was by way of a punishment. Plainly it was not.
In this view of the matter, we are of the view that the impugned order of the learned Single Judge is unsustainable and the ground which weighed with the learned Single Judge in allowing the writ petition was erroneous. Having said this, we are of the view that in the interest of justice it would be appropriate to restore the writ proceedings back to the file of the learned Single Judge so that the other challenges which have been addressed in the writ proceedings can be considered by the learned Single Judge. It is, however, a common ground that after the order of the Administrative Judge, the first respondent has been reinstated in service. Since the order of reinstatement has not been challenged, we clarify that this position shall not be disturbed as a consequence of the present order and all the rights and contentions of the parties are kept open to be addressed before the learned Single Judge in the course of the writ proceedings which we restore to the file.
Before concluding, we may also note that when the petition was called out for hearing, a preliminary objection was raised on behalf of the first respondent in regard to the maintainability of the Special Appeal.
Chapter VIII Rule 5 of the Allahabad High Court Rules provides as follows:-
"5. 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 of 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."
The submission of the first respondent is that since the order of the Administrative Judge was passed in the exercise of appellate jurisdiction and the order of the learned Single Judge has been passed in a writ petition under Article 226 of the Constitution challenging such order, a Special Appeal will not be maintainable. Reference has also been made to a decision of the Full Bench of this Court in Sheet Gupta Vs. State of U.P. & Ors.1.
There is no merit in the submission. Under Rule 5 of Chapter VIII, a Special Appeal will not be maintainable against an order passed in the exercise of the jurisdiction conferred by Articles 226 or 227 of the Constitution in respect of any judgment, order or award (i) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise of jurisdiction under any Uttar Pradesh Act or Central Act with respect to any of the matter enumerated in the State list or the concurrent list of the Seventh Schedule of the Constitution or (ii) of the Government officer or authority, made or purported to be made in the exercise of appellate or revisional jurisdiction under any such Act.
In the present case, the order of the Administrative Judge was made under the provisions of Rule 7(2)(b) of the U.P. Sub-ordinate Courts Staff (Punishment & Appeal) Rules, 1976. These Rules have been framed under Article 309 of the Constitution and not "under any Act". The expression "under any such Act" means under any Uttar Pradesh Act or under any Central Act with respect to a matter enumerated in the State list or the Concurrent List of the Seventh Schedule of the Constitution. Since the exercise of powers by the Administrative Judge was not under any such Act as specified but under the Rules which have been framed under Article 309 of the Constitution, the bar to the maintenance of the Special Appeal would not be applicable.
For these reasons, we allow the Special Appeal and set aside the impugned order of the learned Single Judge dated 27 November 2013. Writ A-47154 of 2012 shall stand restored to the file of the learned Single Judge for disposal afresh in the light of the aforesaid observations.
Order Date :- 13.2.2014 GS (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.) Chief Justice's Court Civil Misc. Delay Condonation Application No.59897 of 2014 Inre:
Case :- SPECIAL APPEAL DEFECTIVE No. - 161 of 2014 Appellant :- The District Judge, Rampur Respondent :- Vinod Kumar Verma And Antoher Counsel for Appellant :- Ashish Mishra,Yashwant Varma Counsel for Respondent :- Pratik J. Nagar Hon'ble Dr. Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Dilip Gupta, J.
This is an application seeking condonation of delay in filing the special appeal.
Since sufficient cause has been shown in the affidavit filed in support of the application, the delay in filing the appeal is condoned.
The application is, accordingly, allowed.
Order Date :- 13.2.2014 GS (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)