(Delivered by Syed Rafat Alam, Chief Justice) This is an intra court appeal, under the Rules of the Court, arising from the order of the learned Single Judge dated 2.4.2012 passed in Writ Petition No.29566 of 1994, Sita Ram Vishwakarma vs. Chief Engineer, P.W.D. and others, whereby the writ petition has been disposed of leaving it open to the petitioner-appellant to approach the Appellate Authority under the relevant Rules i.e. The U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the 1999 Rules).
The appellant was working in the U.P. Public Works Department as Senior Assistant. He was placed under suspension by order of the Superintending Engineer, Moradabad Division vide office order dated 23.7.1986. After issuing charge sheet and holding a departmental inquiry the appellant was dismissed from service and further an order for recovery for Rs.3,41,698.58 paise was passed against the appellant on 7.6.1994 by the Chief Engineer. Aggrieved by the order of dismissal the appellant preferred Writ Petition No.29566 of 1994, which has since been disposed of by the learned Single Judge vide order dated 2.4.2012, giving rise to the present appeal.
Heard the learned counsel for the appellant and the learned standing counsel.
The order passed by the learned Single Judge dated 2.4.2012 reads as follows :
"The petitioner has filed the present petition against the passing of an order of termination.
Several issues have been raised in this matter, which contain disputed facts. It would be in the best interest of the petitioner if he is allowed to file an appeal under Rule 11 of the relevant Rules, 1999.
It is left open to the petitioner to approach the appellate authority under Rule 11 of the relevant Rules. In case, the petitioner approaches the appellate authority within a period of three weeks from today, his appeal may be entertained. The delay may be condoned. The appeal may be heard and decided on merits and in accordance with law.
This writ petition stands disposed of."
Learned counsel for the appellant has raised two arguments. Firstly that the 1999 Rules will not apply to the appellant in as much as the punishment order, challenged in the writ petition had been passed prior to the commencement of the 1999 Rules and as such the learned Single Judge erred in relegating the appellant to the Appellate Authority under the 1999 Rules. The second argument advanced is that the writ petition had been pending for substantial period since 1994 and the pleadings had been exchanged in the writ petition as counter and rejoinder affidavits had been filed and therefore relegating the appellant to approach the Appellate Authority was not warranted under law. The learned Single Judge ought to have heard the petition on merits instead of directing the appellant to approach the Appellate Authority.
We are afraid that both the arguments advanced by the learned counsel for the appellant cannot be sustained under law. Rule 11 of the 1999 Rules provides for filing an appeal to the next higher authority, it reads as follows:
11. Appeal. - (1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the Disciplinary Authority.
(2) The appeal shall be addressed and submitted to the appellate authority. A Government servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant.
(3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed.
(4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall dismissed summarily.
Further Rule 17 of the 1999 Rules provides for the rescission and savings. According to the same the Civil Services (Classification, Control and Appeal) Rules, 1930 and the Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932 stood rescinded. However, subject to such rescission certain rights were vested in the Government Servants. Rule 17 of the 1999 Rules is reproduced herein below :
17. Rescission and savings . - (1) The Civil Service (Classification, Control and Appeal) Rules, 1930 and the Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932 are hereby rescinded.
(2) Notwithstanding such rescission, -
(a) Delegation of power mentioned in punishment and Appeal Rules for Subordinate Services Uttar Pradesh, 1932 and any order issued under the Civil Service (Classification, Control and Appeal) Rules, 1930 or Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932 delegating the power of imposing any of the penalties mentioned in Rule 3 or power of suspension the any authority shall be deemed to have been issued under these rules and shall remain valid unless cancelled or rescinded ;
(b) any inquiry appeal, revision or review pending on the date of coming into force of these rules shall be continued and concluded in accordance with the provisions of these rules ;
(c) nothing in these rules shall operate to deprive any person of any right of appeal revision or review which he would have had if these rules had not been in force in respect of any order passed before the commencement of these rules and such appeal, revision or review shall be preferred under these rules and disposed of accordingly as if the provisions of this rule were in force at all material times.
Right of appeal is a substantive right. It is conferred by a statute. Prior to the enforcement of the 1999 Rules, the Government servant had a right to file an appeal under the relevant provisions of the Civil Services (Classification Control and Appeal ) Rules, 1930 as also the Punishment and Appeal Rules for Subordinate Services, Uttar Pradesh, 1932. The Legislature while framing the 1999 Rules took care to rescind the previous Rules referred to above under which the appeal could be filed but at the same time protected the interest of the Government servant against whom a punishment had been awarded to file an appeal under the said Rules. A saving clause is specifically incorporated in Rule 17 of the 1999 Rules, as is evident from its' perusal, quoted in the earlier part of this order.
A statute conferring substantive rights is prima facie prospective in operation unless and until it is expressly or by necessary implication said to have retrospective effect. On the contrary the statute dealing with matter of procedure or which is declaratory in nature is said to have retrospective application unless there is clear expression in the statute otherwise, restricting its' operation prospectively.
The Hon'ble Apex Court in the case of Maria Cristina De Souza Sodder and others vs. Amria Zurana Pereira Pinto and others, (1979) 1 SCC 92 held that where the repealing act takes away a vested right of filing an appeal under the repealed statute and at the same time provides a right under the repealing act of filing an appeal, then there would be nothing wrong with the said repealing as the right of appeal still remains but may be before a different forum or to be pursued in a different manner. The right of appeal being a substantive right and the forum and the procedure of filing the appeal would be a procedural right, thus the same would be retrospective in operation. In the present case, the right of appeal was pre-existing under the repealed statute and under the repealing act also, it was continued. The only difference being of the forum and the procedure to be followed including limitation. Thus under the settled law also the appellant's right to appeal under the 1999 Rules stands saved.
The Constitutional Bench of the Hon'ble Apex Court in the case of K.S. Paripoornan vs. State of Kerala and others, (1994) 5 SCC 593 per majority laid down the law as follows :
"A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statue concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attach under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxation of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See Halsbury's Law of England, 4th Edn;, Vol.44, paras 921, 922, 925 and 926) Similar view had been taken in the following decisions :
i) Kamla Devi vs. Kushal Kanwar and another, (2006) 13 SCC 295.
Iii) Sangam Spinners vs. Regional Provident Fund Commissioner I, (2008) 1 SCC 391.
iii) Thirumalai Chemicals Limited vs. Union of India and others, (2011) 6 SCC 739.
From a perusal of sub-rule (2) of Rule 17 of the 1999 Rules we find that Clause (c) thereof clearly protects the interest of the appellant and the right to file an appeal under the 1999 Rules was made admissible even in cases where the punishment orders had been passed prior to commencement of the said rules. It clearly mentions that an appeal, revision or review could be preferred even where the order had been passed prior to the commencement of the Rules and the same would be disposed of as if the provisions of the 1999 Rules were in force at all material times.
Once the right to file an appeal had been conferred and saved even where the order had been passed prior to the commencement of the 1999 Rules as in the present case, the first argument advanced by the learned counsel for the appellant that the 1999 Rules would not apply cannot be sustained.
The second argument advanced on behalf of the appellant that the Writ Court ought to have heard the petition on merits also cannot be accepted in view of the settled legal preposition that where an alternative remedy is available, the Writ Court would be slow in entertaining the petitions directly. Further even where the matter had remained pending before the Writ Court for substantial period there was nothing wrong or illegal in relegating the party to approach the Appellate Authority provided under the statute. There can be no issue that the Appellate Authority would be having wider scope and jurisdiction as compared to the writ jurisdiction and, therefore, apparently no prejudice can be caused to the appellant. It is also an admitted fact that there is no interim order operative in favour of the appellant during the pendency of the writ petition. Further the view taken by the Apex Court in this regard is also of similar nature. Refrence may be had to the following decisions :
i) U.P. Jal Nigam vs. Nareshwar Sahai Mathur, (1995) 1 SCC 21.
ii) L. Chandra Kumar vs. Union of India, (1997) 3 SCC 261.
iii) Kandriya Vidyalaya Sanagthan vs. Subhas Sharma, (2002) 4 SCC 145.
iv) Minor Irrigation & Rural Engineering Services vs. Sahngoo Ram Arya, (2002) 5 SCC 521.
v) Samarendra Das, Advocate vs. State of West Bengal, (2004) 2 SCC 274.
In view of above discussion we do not find any merit in this appeal, warranting interference. However, keeping in view the fact that the appellant has since attained the age of superannuation and is presently 73 years of age, we direct that in the event the appellant files an appeal before the Appellate Authority under Rule 11 of the 1999 Rules on or before 30.9.2012, the Appellate Authority shall dispose of the same expeditiously preferably within a period of six months thereafter on merits as indicated in the order of the learned Single Judge.
With the above direction the appeal stands disposed of.