Court No. - 34
Case :- SPECIAL APPEAL No. - 1561 of 2009 Appellant :- State Of U.P. And Others Respondent :- Vijay Prakash Ram And Another Counsel for Appellant :- S.C.
Counsel for Respondent :- B.L. Srivastava
Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar Srivastava, J.
1. Heard leaned Standing Counsel for State-appellant and Sri S. K. Verma, Senior Advocate assisted by Sri B. L. Srivastava, learned counsel for petitioners-respondents.
2. This intra Court appeal under Chapter VIII, Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952") has arisen from judgment dated 24.09.1997 passed by learned Single Judge in Writ Petition No.31600 of 1997, whereby writ petition has been disposed of directing appellants to pay salary to petitioners-respondents (hereinafter referred to as 'petitioners') according to law to which they are entitled and not to terminate them except under the Rules in force. Judgment further says that termination order dated 15.09.1997 be kept in abeyance. Appellants have also assailed order dated 07.05.2002 passed by learned Single Judge dismissing appellant's Recall Application No.69497 of 1997.
3. Facts in brief giving rise to present appeal are that Vijai Prakash Ram and Jai Prakash Singh Yadav, two petitioners, filed Writ Petition No.31600 of 1997 praying for issue of a writ of certiorari quashing orders dated 07.08.1997 and 19.08.1997 passed by Chief Engineer, Irrigation Department, U.P., Varanasi (hereinafter referred to as “C.E., I.D.”) and also to issue a writ of mandamus commanding respondents not to proceed with any further enquiry etc. in regard to matters which have already been enquired into.
4. Writ petition was presented in registry of this Court on 17.09.1997 and came up before Court on 24.09.1997. Learned Single Judge without inviting counter and giving opportunity to respondents to reply averments made by petitioners in above writ petition, disposed of writ petition finally considering the matter on merits and operative part reads as under :
“This petition is finally disposed of with a direction to the respondents to pay the salary of the petitioners according to law to which they are entitled to and it is further directed that petitioner's services may not be terminated except under rules in force.”
5. It also appears from record that a Civil Misc. Amendment Application No.NIL of 1997 was presented in Court itself on 24.09.1997 and in para 7 certain grounds were sought to be added and a prayer was made for quashing order dated 15.09.1997. Prayer made in amendment application as mentioned in para 7 reads as under :
“That it is further prayed that the following grounds may be allowed to be added in the writ petition.
Ground No.IV. Because the order dated 15.9.97 has been passed without giving any opportunity of hearing to the petitioners.
Ground No.V. Because if the petitioners would have been given an opportunity of hearing then they would have clearly substantiated that they were legally appointed and their services were transferred to the Irrigation Department, Ballia by the order of the Chief Engineer dated 26.7.91.
Ground No.VI. Because it looks rather fantastic that the petitioners had worked for such a long period and their services have been terminated without any basis whatsoever.
Ground No.VII. Because earlier enquiries revealed that the appointments of the petitioners were legal and it is further prayed that the following amendment may be made in the prayer clause of the writ petition.”
6. However, we find no order to show whether this application was allowed or not. Thereafter another Application No.NIL of 1997 on 26.09.1997 in which following prayer was made :
“It is most respectfully prayed that this Hon'ble Court may be pleased to order that the written and signed judgment may be corrected and brought in accordance with the order dictated in the Open Court by incorporating in the Order/Judgment that the amendment application was allowed and the order of termination dated 15.9.97 was to be kept in abeyance.”
7. It appears that petitioners moved a correction application whereupon aforesaid judgment was corrected and at the end of operative paragraph, following sentence was added :
“and order of termination dated 15.9.97 be kept in abeyance accordingly.”
8. Appellants then moved Civil Misc. Recall Application No.69497 of 1997 on 27.10.1997 and also filed a counter affidavit stating that petitioners were never appointed and alleged order of transfer on the basis whereof relief was claimed, was a forged and fictitious document.
9. This recall application, however, was rejected by learned Single Judge by order dated 29.04.2002.
10. Learned counsel for appellants contended that writ petition was decided by learned Single Judge on the very first day when it came up before learned Single Judge as a fresh matter and that too without giving opportunity to respondents to file counter affidavit and even without giving notice and, therefore, judgment is in utter violation of principles of natural justice. It is in these circumstances, recall application was filed but learned Single Judge was of the view that there should have been a review application, hence, rejected recall application.
11. However, we are of the view that learned Single Judge could have treated the said recall application itself as a review application, since, judgment was delivered without giving opportunity to appellant to file counter affidavit and judgment ought have been recalled and matter should have been heard on merits in the light of counter affidavit filed by appellants.
12. Sri S. K. Verma, Senior Advocate, when questioned, could not dispute this fact that writ petition was decided by learned Single Judge dated 24.09.1997, i.e. on the very first day when matter came up for admission and virtually relief, which was not even sought by petitioners, with regard to payment of salary, has been granted and subsequently, with correction application, scope of judgment has been enlarged by setting aside order dated 15.09.1997. At no stage any opportunity was given to respondents in writ petition to file counter affidavit and even to file objection to amendment application or correction application.
13. With great respect to learned Single Judge, in our view, judgment in question, cannot be sustained, having been passed by granting substantial relief, including one which was not prayed by petitioner, without giving opportunity to respondents to file counter affidavit. Judgment of learned Single Judge nowhere says that learned Standing Counsel gave any consent for deciding the case without giving him opportunity to file counter affidavit.
14. In fact, learned Single Judge has simply mentioned that learned Standing Counsel was heard, but what argument were submitted by him and what issues were raised, is not stated in the judgment. Issue raised by appellants that writ petition was filed on the basis of a forged and fictitious document, is also a serious aspect and here another principle applies that if an order has been obtained by playing fraud and misrepresentation, such an order is a nullity and this Court can always recall such an order, whenever such fact is brought to its notice. Fraud vitiates everything. Therefore, on this aspect also, if what has been stated by learned counsel for appellant is correct, judgment of learned Single Judge, which has been challenged in this appeal, cannot be sustained.
15. However, since learned Single Judge had not decided the matter after giving opportunity to respondents to file counter affidavit and matter has been decided ex parte, we find it appropriate to allow this appeal and set aside both judgments dated 24.09.1997 and 07.05.2002; and restore the writ petition to its original number. We remand the matter to learned Single Judge and request that after giving adequate opportunity to parties in the matter, writ petition be decided afresh in accordance with law.
16. This appeal is allowed with aforesaid directions.
Order Date : 29.05.2019 Manish Himwan