Hon'ble Saurabh Lavania,J.
Heard Sri J.N.Mathur, learned Senior Counsel assisted by Sri Suyash Manjul and Sri Omendra Pratap Singh, learned Counsel for the petitioner and learned State Counsel for opposite party nos. 1 and 4 and Sri Ratnesh Chandra, learned Counsel for opposite party nos. 2 and 3.
The present petition has been filed for the following main reliefs:-
"I. Issue a writ, order or direction in the nature of Certiorari, quashing the order of the Learned State Public Services Tribunal, Lucknow in Claim Petition No. 535 of 2018 dated 29.08.2019 (Annexure No. 1).
II. Issue a writ, order or direction in the nature of Mandamus, directing Respondents not to initiate any coercive means for the recovery till the disposal of the Claim Petition No. 535/2018 before the Learned State Public Services Tribunal, Lucknow."
Brief facts of the case are that an order dated 02.02.2018 was passed by opposite party no. 1 i.e. Additional Chief Secretary, Housing and Urban Planning, Government of Uttar Pradesh, Lucknow, whereby the petitioner was awarded punishment of dismissal as well as the recovery a sum of Rs. 94,01,647/- (Rupees Ninety Four Lakhs One Thousand Six Hundred and Forty Seven Only). Thereafter, the claimant/petitioner filed a Claim Petition No. 535/2018, which was admitted on 20.03.2018 and in the meantime recovery was initiated against the petitioner as arrears of land revenue. Thereafter, the petitioner moved an application for interim relief dated 13.08.2019, for staying the recovery of Rs. 94,01,647/- before the State Public Services Tribunal and on 14.08.2019, the Tribunal passed the following order:-
"Heard Shri K.K. Pandey for petitioner.
Submission of the learned counsel for petitioner is that amount ordered to be recovered can not be recovered as land revenue. he has cited case law reported in 1987(5) L.C.D. Page 226 State of U.P. versus Girija Dayal Srivastava and another. Submission of Shri Subash Chandra Pandey, counsel fo r L.D.A. is that departmental proceeding had been started on the directions of Hon'ble High Court and C.B.I. has conducted investigation and State Government has passed dismissal order alongwith recovery. Defence counsel states that petitioner has given cheque, with no money in his account, as such, on this ground alone he can not be given equitable interim relief.
Shri Pankaj Singh, Ld. P.O. prays that matter be heard finally. In these circumstances, we direct this case to come up on 16.08.2019 for final hearing.
Prayer of interim relief made by the petitioner will also be considered on the next date. It is clarified that learned P.O. and Shri Subash Chandra Pandey, counsel for L.D.A will not seek adjournment."
Thereafter, on 29.08.2019, the petitioner's application for interim relief has been rejected. The relevant portion of the order dated 29.08.2019 reads as under:-
"Shri Pankaj Singh, Ld. P.O. Prays for a week's time to prepare the case. Today he has received the relevant file from Appointment Deportment. C.B.I, investigation was conducted in the light of order passed by the Hon'ble High Court. We find it proper and just to give time to peruse the report. Consequently,l we grant one week time peruse the report. Consequently, we grant one week time to prepare the case and to file synopsis and enquiry report pertaining to the matter of petitioner's case.
As far as prayer of interim relief is concerned it appears that prayer of interim relief was rejected on 14.08.2019 by a Division Bench of this Tribunal.
Submission of Shri K.K.Pandey, counsel for petitioner is that prayer of the interim relierf was rejected against dismissal order as there is no power to stay the order of dismissal. If once prayer to stay the impugned punishment order is rejected, it is assumed that matter has been considered and prayer to stay the recovery was also considered, as such there is no justification to consider prayer for granting interim relief again. In view of above, prayer of interim relief is rejected.
Claim petition shall be treated as part heard.
List on 11.09.2019."
Aggrieved by the order dated 29.08.2019, the present petition has been filed by the claimant/ petitioner, before this Court.
Sri J.N.Mathur, learned Senior Counsel submits that vide order dated 14.08.2019, the Tribunal has directed to consider the application for interim relief on the next date of listing, however on 29.08.2019 the application for interim relief has been rejected on the ground that earlier on 14.08.2019 the application for interim relief was rejected. The reason for rejecting the interim relief prayed, vide order dated 29.08.2019, is contrary to the order dated 14.08.2019, according to which interim relief was to be considered on the next date.
Sri J.N.Mathur, learned Senior Counsel submits that as per facts and circumstances of the case, the amount sought to be recovered, cannot be recovered as arrears of land revenue. In support of his submissions, he has also placed reliance on the judgment reported in (1987) 5 LCD 226 ( State of U.P. Versus Girja Dayal Srivastava).
Accordingly, it is submitted by Sri J.N.Mathur, learned Senior Counsel that the order, under challenged, dated 29.08.2019, is contrary to the earlier order dated 14.08.2019 and being so the same is liable to be set aside.
Sri Ratnesh Chandra,Learned Counsel for the opposite parties submits that looking into the facts and circumstances of the case, the petitioner is not entitled for any relief as earlier the interim relief sought was rejected on 09.08.2008.
We have considered the submissions of learned Counsel for the parties and perused the records.
The very premise of testing of the order dated 29.08.2019 passed by the Tribunal is to the effect that whether earlier an application for interim relief has been rejected vide order dated 14.08.2019 or not.
Both the orders are quoted hereinabove. In the order dated 14.08.2019 , it has been specifically stated that on the next date of listing, the application for interim relief shall be considered and vide order dated 29.08.2019, in issue, the interim relief, prayed for, in the application for interim relief dated 13.08.2019,has been rejected, on the ground that vide order dated 14.08.2019 the same was rejected. Thus the ground/reason to reject the interim relief vide order dated 29.08.2019 is unsustainable being contrary to order dated 14.08.2019, as such liable to be interfered.
So far as the objection raised by Sri Ratnesh Chandra,Learned Counsel for the opposite parties that once interim relief application has already been rejected vide order dated 09.08.2019, so the petitioner cannot give second application for interim relief, is concerned, we, after considering the order dated 09.08.2019, are of the view that earlier, vide order dated 09.08.2019, the interim relief related to recovery of the amount was rejected on the ground that the interim relief with regard to recovery of amount is premature and as such, the principle of resjudicata will not apply and second application would be maintainable.
Accordingly, in view of the facts and circumstances of the case, we set aside the order dated 29.08.2019 passed by the opposite party no. 1 and give liberty to the petitioner to press his application for interim relief before the Tribunal.
The Tribunal, is directed to consider and decide the same, by a speaking and reasoned order, strictly in accordance with law and expeditiously, on or before 11.10.2019, after hearing all the parties.
Keeping in view the earlier orders of Tribunal, on record, we would further like to add that, Tribunal shall make all endeavour to decide the claim petition expeditiously.
With the aforesaid terms, the writ petition is allowed.
Order Date :- 27.9.2019 Jyoti/-