Hon'ble S.C. Chaurasia,J.
Heard learned counsel for the petitioner and the learned Additional Chief Standing Counsel and perused the record.
With the consent of the parties, the writ petition is being finally disposed of at admission stage.
Against the order of punishment, the petitioner had filed a claim petition which has been dismissed by the U.P. Public Services Tribunal, Lucknow as time barred.
Brief facts, giving rise to the writ petition, are discussed hereinafter;
The petitioner was punished with adverse entry and stoppage of salary in pursuance to department proceedings by an order dated 21.5.2003. Against the order dated 21.5.2003, he preferred an appeal on 20.8.2003 which was dismissed by the appellate authority on 2.7.2005. Against the order dated 2.7.2005, the petitioner preferred a revision on 10.9.2005 but the same was not decided by the revisional authority. He sent a legal notice on 6.7.2009 for disposal of revision but even after one month's time having been passed, the revision was not decided. Hence, the petitioner filed a claim petition before the U.P. Public Services Tribunal, Lucknow on 29.12.2009 and the same has been dismissed. He then filed a review/recall application before the tribunal which too was rejected on 30.7.2010. Hence, the present writ petition.
Learned counsel for the petitioner has invited the attention of the Court towards Rule 13 of the U.P. Government Servant (Discipline and Appeals) Rules, 1999 (in short, Rules). For convenience, Rule 13 of the Rules is reproduced as under:-
"Revision:- Notwithstanding anything contained in these rules, the Government may of its own motion or on the representation of concerned Government servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules; and
(a) confirm, modify or reverse the order passed by such authority, or
(b) direct that a further inquiry be held in the case, or
(c) reduce or enhance the penalty imposed by the order; or
(d) make such other order in the case as it may deem fit.
A plain reading of Rule 13 of the Rules reveals that notwithstanding anything contained in the Rule, the Government may of its own motion or on the representation of concerned Government servant may call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority under the Rules.
Admittedly, the appellate authority has exercised jurisdiction in pursuance to power conferred by Rule 11 of the Rules. Against the decision of appellate authority, the revision is maintainable under Rule 13 of the Rules. Since the revision was not decided expeditiously, notice was sent on 6.7.2009 and thereafter claim petition was filed on 29.12.2009 that too within one year from the date of notice, Limitation for filing claim petition is one year under Section 5 of the U.P. Public Services Tribunal Act. Since the revision was pending and after service of notice, the petitioner preferred claim petition within a period of one year, the petition seems to be filed within statutory period provided under the Public Service Tribunal Act.
Under Section 4 of the Public Service Tribunal Act, reference may be made or petition may be filed during pendency of appeal or revision. Proviso to section 4 of the Rules provides that where no final order is passed by the competent authority, then the State Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by the Claimant within one year from the date on which such appeal was preferred or representation was made, the Claimant may by a written notice require such competent authority to pass the order and if the order is not passed within one month of the service of notice, the claimant shall be deemed to have exhausted his departmental remedies. Section 4 of the U.P. Public Service Tribunal Act, 1976 is reproduced as under:-
"4. Reference of claims of Tribunal:- If any person who is or has been as public servants claims that in any matter relating to employment as such public servants his employer or any officer or authority subordinate to the employer has dealt with him in a manner which is not in confirmity with any contract or:-
(a) in the case of a Government servant with the provisions of Article 16 or Article 311 of the constitution or with any rules or law having force under article 300 or article 313 of the constitution.
(b) in the case of a servant of a local authority or a statutory corporation, with Article 16 of the Constitution or with any rules or regulations having corporation he shall refer such claim to the Tribunal, and the decision of the Tribunal thereon shall, subject to the provisions of Article 226 and 227 of the Constitution.
Provided that no reference shall subject to the terms of any contract, be made in respect of a claim arising out of the transfer of a public servant.
Provided further that no reference shall ordinarily be entertained by the Tribunal until the claimant has exhausted his departmental remedies under the rules applicable to him.
Provided also that where no final order is made by the competent authority, that is to say the State Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by the Claimant within one year from the date on which such appeal was preferred or representation was made, the Claimant may by a written notice require such competent authority to pass the order and if the order is not passed within one month of the service of notice, the Clalimane shall be deemed to have exhausted his department remedies Explanation:-For the purpose of this proviso, it shall not be necessary to require the claimant ( in the case of a Government servant) to avail also of the remedy of memorial to the Governor before referring his claim to the Tribunal.
[4-A. Hearing of reference by the Tribunal- (1) The Chairman may from time to time constitute Benches consisting of a single member or two members, for the disposal of such references of claims and other matters as may be specified by him.
(2) It shall be lawful for the Chairman to nominate himself as a member of any such Bench.
(3) A Bench consisting of two members shall include a Judicial Member and an Administrative Member.
Explanation:- For the purpose of this sub-section the Chairman who has been a District Judge shall be deemed to be a Judicial Member and a Chairman or Vice-Chairman who has been the member of the Indian Administrative Service shall be deemded to be Judicial Member and a Chairman or Vice-Chairman who has been the member of the Indian Administrative Service shall be deemed to be an Administrative Member.
(4) The jurisdiction, powers and authority of the Tribunal may be exercised by any such Bench and anything done by any such Bench in exercise of such jurisdiction, powers or authority shall be deemed to have been done by the Tribunal.
(5) (a) A reference of claim wherein the validity of any order of dismissal or removal from service (not being an order for termination of temporary service) or reduction in rank is involved, shall be heard and finally decided by a Bench consisting of two members:
Provided that any order, other than an order finally disposing of the case on merits, may be passed, evidence may be received and proceeding (except hearing of oral arguments for final disposal of the case) may be conducted by a single member.
(b) A reference of claim other than referred to in clause (a) may be heard and finally decided by a Bench consisting of a single member.
(c) The Chairman may, if he thinks fit to do so, transfer a case from one Bench to another Bench.
(6) Where the members of a Bench consisting of two members are unable to agree, the matter shall be referred to another nominated by the Chairman and the decision of such other member shall be final and operative.
(7) The Tribunal, its Benches and members shall, for transacting business under this Act sit at Lucknow or at such other places as the State Government may direct.
Thus, it has been provided in the proviso to Section 4 of U.P. Public Service Tribunal Act that a Government servant may prefer a claim petition during the pendency of appeal or revision, but the revisional power may be invoked by filing revision against the appellate order passed by the appellate authority. In case such revision or representation is not decided within a period of one year from the date of its filing, then the claimant, by a written notice, may require the authority competent to pass the order and in case the order is not passed within one month of service of notice, the claimant may file a claim petition after expiry of period of one month.
Since the petitioner has preferred a claim petition within one year after service of notice and no decision was taken within one month, he was entitled to prefer claim petition on or before 5.8.2010. In the present case, the claim petition was filed by the petitioner on 29.12.2009, that was well within statutory period provided by Section 4 read with section 5 of the Act. The tribunal has been failed to exercise power vested in it. Since, the claim petition was filed within time, the tribunal should have decided the controversy on merit instead of dismissing it as time barred.
In view of above, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 30.8.2010 as well as order dated 22.12.2009 with all consequential benefits. A writ in the nature of mandamus is issued directing the U.P. Public Services Tribunal to restore the claim petition to its original number and decide the same on merit, expeditiously, say within a period of one year.
Order Date :- 19.5.2011 Rizvi