Court No. - 40
Case :- SPECIAL APPEAL No. - 766 of 2018 Appellant :- Sanjit Kumar Srivastava Respondent :- State Of U.P. And 4 Ors Counsel for Appellant :- Anupam Kumar,Ashutosh Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Bachchoo Lal,J.
Heard learned counsel for the appellant and Sri A.K. Ray for the respondent State. The appellant has come up in this intra-court appeal assailing the impugned judgment dated 23.07.2018.
The sole grievance of the appellant is that the plea set up by the respondents before the learned Single Judge of terminating the services of the appellant under the order dated 13/16.05.2016 was a complete afterthought, and this order had been never served on the appellant and was made an excuse to avoid the compulsions that were created by the earlier round of litigation including the contempt application.
Learned counsel submits that it was in order to overcome the legal difficulties being faced by the respondents that they virtually manufactured this order in order to defeat the rightful claim of the appellant.
Learned counsel has invited the attention of the Court to paragraph no. 17 of the rejoinder affidavit which is extracted hereinunder:-
"That the contents of paragraph no. 11 of the counter affidavit are not correct hence denied. It is submitted that the respondents have not paid the back wages to the petitioner and in question of the documents of the counter affidavit (Annexure C.A.-1) it was never served to the petitioner neither it was recommended to the District Magistrate, who is the Chairman of the Medical Board. Hence the letter was prepared but it was not forwarded before any authority concerned and after this letter the same Chief Medical Officer directed the authority concerned for the payment of his salary which is very much clear by the letter dated 4.2.2017."
In the said paragraph a reference has been made to the letter dated 04.02.2017. The letter dated 04.02.2017 is a letter by the Chief Medical Officer, Ballia sent to the Incharge Primary Health Center, Kotwa, District Ballia calling upon him to send his report. Learned counsel has further invited the attention of the Court to the letter of Chief Medical Officer, Balia dated 30th August, 2017 according to which, it is evident that the appellant had been continuing to work even after 2016, and therefore, the plea set up that his services had been terminated is an absolutely incorrect plea.
It is therefore urged that the learned Single Judge has omitted to consider these aspects of the matter, and therefore has arrived at a wrong conclusion while dismissing the writ petition.
It is undisputed that the appellant claimed himself to have been appointed on a contract basis as a pharmacist, and it was the dispute of his continuance that was made the subject matter of the writ petition where a claim was made for payment of honorarium of Rs. 13,500/- per month.
The learned Single Judge in the impugned judgment has traced the entire history of the previous litigation including the orders passed in the contempt petition filed by the appellant, and therefore, it is not necessary to reproduce the orders which have been indicated in the impugned judgment.
The principal argument relating to the factum of continuance is based on the letter dated 04.02.2017 and the letter dated 30th August, 2017. It is urged that none of these letters mention the letter of termination of 2016 to have been issued to the appellant.
From the records, we find that the counter affidavit which was served on the appellant before the learned Single Judge is dated 20th of July, 2018 to which a rejoinder affidavit has been filed by the appellant. The said letter was enclosed along with the counter affidavit. The learned Single Judge has categorically recorded that no challenge has been raised to the said letter, and in our opinion also the only course open for the appellant was to seek time to file an amendment application challenging the said order on whatever grounds it may have been permissible in law. It is admitted that the said order was not challenged rather the argument is that there was no need to challenge the order in the above background.
We are unable to agree with this proposition inasmuch as, even if it was an order which according to the appellant was a procured or a manipulated order, the same has to be challenged and the Court has to be called upon to adjudicate on such controversy, but it cannot be assumed ipso facto that the said order appears to be manufactured or manipulated. In the absence of any such challenge raised the learned Single Judge was absolutely right in refusing to exercise his discretion.
There is therefore no merit in this appeal and is accordingly rejected.
We however clarify that the learned Single Judge has observed that the dismissal of the writ petition will not prevent the authority from examining as to whether the petitioner appellant has worked in the past. It shall be open to the appellant to raise a dispute in case so chooses before the competent authority as against the order of termination dated 13/16.05.2016.
Order Date :- 19.9.2018 M. ARIF