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ASHA RAM AND ANOTHER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Asha Ram And Another v. State Of U.P. & Others - WRIT - A No. 26610 of 2004 [2007] RD-AH 6417 (9 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                  Court No. 39

Civil Misc. Writ Petition No.26610 of 2004

Asha Ram and another

Versus

State of U.P. and othrs.

Hon'ble V.K. Shukla,J.

Petitioner No.1 has been performing and discharging his duty as daily wager since 1981 and petitioner no.2 has been performing and discharging his duty as daily wager since 1982 at U.P. Public Service Commission, U.P. at  Allahabad. Seniority list was maintained in the office of U.P. Public Service Commission, U.P. at Allahabad qua daily wager workers, who had been performing and discharging their duty since long.  In the said list, name of petitioner no.1 was placed at serial No. 3 in the year 1981 and  name  of petitioner no.2 was placed at serial no. 5 on the year 1982, which was  mentioned year wise Petitioners claim that they have been regularly and continuously performing and discharging their duty.  In order to confer substantive status to them, they were called for interview. Petitioners have contended that fire accident took place  in the night of 19/20.10.2000. In regard to the said incident, first information report had been lodged against unknown persons. Petitioners were suspected for. Petitioners were  charge sheeted and put up said crime for trial. As petitioners were suspected of committing criminal offence and had been charge sheeted , petitioners were not assigned any duty of daily wager. Petitioners have contended that they took Session Trial No. 76 of 2002 and clear cut order of acquittal was passed on 9.5.2003 , by Additional District Judge, Court No. 5, Allahabad. Petitioners has contended that after the said order had been passed, petitioners requested to give them joining and joining was given to them on 1.12.2003. Petitioners have contended that in exercise of power vested under the proviso of Article 309 of the Constitution of India, in the State of U.P. Rules have been enforced, known as U.P. Regularization of Daily Wages Appointment on Group "D" Posts Rules, 2001. Petitioners have contended that they have been appointed prior to  26th June 1991, and on the date of commencement of Rules, on account of the fact that they were falsely implicated   they  were not permitted to work as daily wager, and once order of acquittal has been passed, then their claim of regularization is also entitled to be accorded, as junior incumbents have been accorded benefit of regularization, namely Atul Chand Dubey, Ram Awadh Yadav, Rohit Kumar, Smt. Santosh Kumari, Paras Nath Prajapati,  Deena Nath Pandey, Asha Ram Srivastava etc. Petitioners have submitted that benefit of regularization should be extended to them  also  and in the list which had been prepared therein, name of petitioner  also  included, as such present writ petition has been filed requesting therein that writ of mandamus be issued directing the respondents to consider the claim of petitioners in reference to Group-"D" Posts in consonance with the rules.

Counter affidavit  has been filed and therein it had been contended that on the relevant date i.e. 21.12.2001 petitioners were not continuing in service, as such petitioners are ineligible  for being considered for regularization, hence their name has not been included in the seniority/eligibility list, as such writ petition is liable to be dismissed.

Sri Rajeshwar Tiwari, learned counsel for the petitioners contended with vehemence that in the present case since 1981 and 1982 respectively, petitioners had been performing and discharging their duty as daily wager with the U.P. Public Service Commission, U.P. at Allahabad, but on account  of fire accident, petitioners were not permitted to work and thereafter in the said criminal case, clear cut order of acquittal had been passed and then petitioners had been permitted to discharge their duty. In between when respondents themselves have not permitted  the petitioners to perform and discharge their duty, then benefit of regularization cannot be deprived  to the petitioners. In this fact and in this background of the case, once order of acquittal has been passed, then it should be presumed that petitioners have performed and discharged their duty in the same way and manner as other daily wagers have been permitted, as such claim  of petitioners is liable to be considered, as junior incumbents had already been extended benefit of regularization, as such writ petition deserves to be allowed.

Sri P.S. Baghel, learned counsel for the respondents on the other hand contended that on the relevant date petitioners have not functioned, as such petitioners have been found ineligible to be included in the list, hence their name has not been included in the seniority list, as such writ petition, deserves to be  dismissed.

After respective arguments have been advanced, factual position, which is emerging is that petitioners have been performing and discharging their duty as daily wager as Class IV employee since 1981 and 1982 respectively. In the office of U.P. Public Service Commission fire broke out, qua the said accident fingers were raised on  petitioners. After lodging of the first information report, petitioners were not permitted to function and ultimately petitioners were charge sheeted and faced criminal trial. In the said criminal trial, petitioners have been acquitted by the court of 13th Additional District & Session Judge, Allahabad. In the said judgment qua functioning of U.P. Public Service Commission, Allahabad, observations have been made by the 13th Additional District & Session Judge, Allahabad by mentioning that officers of  U.P. Public Service Commission at Allahabad, at no point of time, ever disclosed real reason for catching of the fire, who was the real culprit and no  cooperation was extended on the said front. Further it has been mentioned that there is no evidence whatsoever against the petitioners. Said order of acquittal was passed on 9.5.2003. Petitioners have been reinstated w.e.f. 1.12.2003. In order to extend benefit of regularization to daily wage employees, who had been functioning prior to 24.6.1991, in the State of U.P., Rules have been framed by the Governor  under the proviso of Article 309 of the Constitution of India. Petitioners claim has been non suited on the ground, that on the date of commencement of Rules, they were not in service at U.P. Public Service Commission, at Allahabad.  In consonance with  said rules, on 12.8.2004 list had been prepared.  In the said list,  petitioners name has been left out for the simple reason  that on the date of commencement of aforementioned rules, petitioners were not functioning. Said list contains names of 91 incumbents. Said list shows that three incumbents have been working in 1981, six incumbents have been working in 1982 and as far as petitioners are concerned, their names is not with the said incumbent.  Reason for not including the name of petitioners, as already disclosed is that on the date of commencement of aforementioned Rules i.e. 21.12.2001, petitioners had not been functioning. It is true that petitioners had not been functioning on the relevant date i.e. 21.12.2001; in the fact of present case next question is as to  who was responsible for non functioning of the petitioners. Officers of the U.P. Public Service Commission at Allahabad lodged first information report in regard to accident of fire.  On the strength of lodging  of first information report, petitioners were deprived from performing and discharging their duty and ultimately, petitioners were acquitted on 9.5.2003 and thereafter they were permitted to function on 1.12.2003.

Division Bench of this court in the case of   Awdhesh Kumar Sharma Vs. Union of India and others (Alld. CJ Valume -1 526 has taken the view  that when an incumbents is acquitted in the criminal case, then it has to be deemed in law that in fact  he was never involved in any criminal case. Relevant extract is being quoted below:-

"In our opinion when the petitioner was acquitted in the criminal case it has to be deemed in law that in fact he was never involved in any criminal case. It is settled law that every statute ordinarily operates prospectively (unless expressly made retrospective) whereas every judgment of a court of law operates retrospectively (unless expressly made prospective). The only material against the petitioner was the criminal case in which he was acquitted. Since he has been selected he must now be allowed to join duty."

Hon'ble Apex Court in the case of G.M. Tank Vs. State of Gujarat and ano 2006(4) SC 740 has taken view that when there was an honourable acquittal of the employee during the pendency of proceeding, the same requires to be taken note and it should not be ignored lightly. Relevant para nos. 29 and 30 are being quoted below:-

29.The judgments relied on by the learned counsel appearing for the respondents are distinguishable on facts and on law. In this Case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same.  In the present case, criminal and departmental proceedings have already noticed or granted on the same set of fact namely, raid conducted at the appellant's residence recovery of articles there from. The investigation Officer, Mr.  V.B. Raval and other departmental witness were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

30.In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof not be applicable in the instant case. Though finding record in the domestic inquiry was found to be valid by the Courts below. Where there was an honourable acquittal of the employee during the pendency of the proceeding challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed".

Thus inevitable conclusion is that  due weight has to be given to order of acquittal passed by the competent criminal court in favour of petitioners.  U.P. Public Service Commission,  at Allahabad had prevented the petitioners from performing and discharging their duty as Class IV employee, during the investigation in criminal case and during the  period when aforementioned criminal trial was going on  and ultimately petitioners were taken back on duty on 1.12.2003.  Petitioners cannot be put to disadvantageous situation on account of  non permission by the respondents to petitioners to perform and discharging their duty. Rules , 2001, has been enforced to extend benefit of regularization, who had been function prior to 29.6.1991. It is well settled that law does not compel a man to do that which he cannot possibly perform, and further where law creates a duty, and the party is disable to perform it without any default in him and has no remedy over there, the law will excuse him. These principles are based on legal maxims, which has been considered at length and in extenso

In Special Appeal No. 1360 of 2005 (The Inter College Kusmauli, Gorakhpur through its Principal and another Vs. The State of U.P. through Secretary Madhyamik Shiksha Lucknow and others as follows:-

" If the authorities for their own default sit tight and idle,   did not bother for making the forms  available to the institutions, as it permissible subsequently to the authorities to require the college and the students to adhere to the time schedule prescribed in the regulation and else face consequences. In our view the answer would be 'No' since neither the said provision can be read in such manner nor the Regulations permit such interpretation Lex Non Cogit ad impossibilia.". The law does not compel a man to do that which he cannot possibly perform. The other similarly recognized legal maxims are "Impotentia Excusast Legim" and "Neon tenatur adimpossibilia." Where the law creates a duty, and the party is disable to perform it without any default in him and has no remedy over there, the law will excuse him"

The aforesaid doctrines have been accepted, approved and applied by the Apex Court, in India also as long back as in the case of Cochin State Power and Light Corporation Ltd. Vs. State of Kerala AIR 1965 Sc 1688, where the Apex Court followed the aforesaid maxims and held.

'The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia ( the law does not compel the doing of impossibilities), and sub-s (4) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible'. (Para 8)

A Constitution Bench of seven Hon'ble Judges in Re Presidential Pool 1974 (2) SCC 33, held as under:

"The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had n control, like the act of God, the  circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th   Edition at pp. 162-163 and Craies on Statute Law 6th Ed, at p. 268)' (para 15).

In State of Rajasthan Versus Shamsher Sigh AIR 1985 SC 1082, the Apex Court while considering a case under National Security Act, applied the aforesaid doctrine and held as under:

" Mr. Jethmalani placed before us a passage from Broom's Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non compliance particularly when it is a question of the time factor. Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in non compliance of S. 10 of the Act so as to vitiate the detention.'(Para 10).

In Rajesh D. Darbar Versus Narsing Rao Krishnaji Kulkarni and others (2003)7 SCC 219, it was held:

The other maxim is, lex non cogit ad impossibilia i.e. the law does not compel a man to do that what he cannot possibly perform. The applicability of the above said maxim has been approved by this Court in Raj Kumar Dey Vs. Tarapada Dey, Gursharan Singh Vs. New Delhi Munic9ipal Committee and Mohd Gazi V. State of M.P. (Para 6).

This is followed again in the case of Ram Chandra Singh Versus Sabitri Devi And others 2003 (8) SCC 319 (para 41).

In the case of Industrial Financial Corporation of India Ltd. Versus Cannanore Spinning and Weaving Mills Ltd. AIR 2002 Supreme Court 1841 held as follows:-

"The Latin Maxim referred to in the English judgment"lex non cogit ad impossibilia" also expressed as "impotentia excusat legem" in common English acceptation means, the law does not compel a man to do that which he cannot possibly perform.. There ought always thus to be an invincible disability to perform the obligation and the same is akin to the Roman Maxim. "nemo tenetur ad impossibilia" (para 30)

A Constitution Bench of five Hon'ble  Judges also considered the aforesaid maxim in Special Reference No.1 of 2002 reported in AIR 2003 Supreme Court 1987 and held as under.

"The  maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is  thast when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and  has no remedy over it, there the law will in general excuse him". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse./ Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.(See Broom's Legal Maxims 10th Education at pp. 1962-63 and Graies on Statute Law 6th Ed. P. 258. These aspects were highlighted by this Court in Special Reference 1 of 1974 (1975 (1) SCR 504). Situations may be created by interested persons to see that elections do not take place and the caretaker government continue in office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded" (para 154)

Recently in the case of Board of Control for Cricket in India Vs. Netaji Cricket Club AIR 2005 SC 592, the Apex Court has again followed and approved the aforesaid maxim by referring to the earlier judgment in Rajesh D. Darbar.

"The other maxim is, lex non cogit ad impossibilia, i.e. the law does not compel a man to do that what he cannot possibly perform....... (para 107)

In another recent judgment of the Apex Court in Huda and another Vs. Dr. Babeswar Kanhar 2005 (1) SCC 191 referring certain English decision, the Apex Court observed asunder:-

"Apart from the said section and various provisions in various other Acts, there is the general principle that a party prevented from doing an act by some circumstances beyond his control, can do so at  the first subsequent opportunity (see  Sambasiva Chari V. Ramasami Reddi).. The underlying object of the principle is to enable a person to do what he could have done on a  holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then the act should be considered to have been done within that period if it is  done on the next day on which the court or office is  open. The reason is that law does not compel the performance of an impossibility. )See Hossein Ally V. Donezelle 2). Every consideration of justice and expediency would require thast the accepted principle  which underlines Section 10 of the General Clauses Sact should be applied in cases where it does not otherwise in terms apply. The principles underlying are lex non cogit ad impossibilia (the law does not compel a man to do the   impossible) and actus curiae neminem gravabit ( the act of court shall prejudice no man)'(para 5)

In the present case on the same principle, petitioners cannot be asked to perform and discharge  impossible act of functioning as daily wager on the relevant date i.e. 21.12.2001, when petitioners were prevented by the respondents on account of lodging of criminal case from  performing and discharging their duties. After the said criminal case has resulted in acquittal, petitioners have been permitted to perform their duty and this shows that petitioners were prevented from performing and discharging their duty, as no work was assigned to them, and on opportunity being provided, they have performed their duty.  Non performance of  duties by petitioners during this period shows impossible task qua petitioners, as respondents  never permitted petitioner  to discharge their duty and  as such circumstances were beyond the control of petitioners.  Consequently applying the same  principle noted above in the present case, it is hereby mentioned that as petitioners were not at all fault and subsequently they have been honourably acquitted, as such presumption during all these period  is that petitioners have notionally functioned  and as such petitioners claim in all eventuality under  Rules, 2001 is liable to be considered, keeping in view the seniority position.

Consequently, present writ petition as it has been framed and drawn is allowed. Respondents U.P. Public Service Commission, U.P. at Allahabad is directed to include the name of  petitioners also in the list, which have been finalized on 12.8.1994 as per seniority  position and thereafter whenever in future exercise is to be undertaken for considering the matter of regularization, claim of petitioners be also considered by treating them as having notionally functioned on the date of commencement of Rules, 2001.

No orders as to cost.

Dt. 9.4.2007.

T.S.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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