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Radhey Shyam v. U.P.Public Servise Tribunal - WRIT - A No. 10599 of 1986  RD-AH 2485 (7 September 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 10599 OF 1986
Smt. Yashoda Devi
U.P. Public Service Tribunal No. III, Jawahar Bhawan, Lucknow & another.
HON. DR. B.S. CHAUHAN J.
HON. SHISHIR KUMAR, J.
(By Hon. Shishir Kumar, J.)
This writ petition had been filed by the petitioner Sri Radhey Shyam husband of Smt. Yashoda Devi for issuing a writ of certiorari quashing the order dated 4.3.1986, Annexure-5 to the writ petition by which the claim petition filed on behalf of the petitioner has been dismissed.
The facts arising out of the present writ petition are that the petitioner who was working in the Medical Department of Zila Parishad at Kanpur joined his duties on 9.2.1968. His services were confirmed by the Zila Parishad in the year 1970. By order dated 11/13 Aug. 1970, the services of the petitioner were terminated. On a representation of the petitioner the order of termination was withdrawn on 30.11.1970. On 5.2.1971 the Adhyaksh, Zila Parishad cancelled the order dated 1.3.1970 passed by the Health Officer confirming the petitioner. The petitioner alleges that he was paid salary up to July 1970. Then he was transferred to Veterinary Hospital at Rura. The petitioner sent a notice on 22.2.1971 requesting the Zila Parishad to withdraw the order of de-confirmation passed on 5.2.1971. By letter-dated 28.2.1971 the petitioner demanded his outstanding dues. Again the petitioner was transferred from Rura to Civil Hospital at Ghatampur by order-dated 11.10.1972. The petitioner did not join but made a representation for transferring him to Kanpur. The petitioner submits that he had sent another notice on 14.11.1973 to the Adhyaksh, Zila Parishad challenging the order of de-confirmation and further to pay his arrears of salary but nothing was done. The wife of the petitioner fell ill in February 1974. By letter dated 11.7.74 the petitioner was asked to join the duty forthwith and was also informed that in case he did not join within a period of three days, his services can be terminated. The petitioner submits that he joined his duties but the Medical Officer Incharge, Primary Health Centre, Ghatampur , Kanpur did not allow him to join his duties and has directed him to report to the Dy. Chief Medical Officer, Kanpur. The petitioner moved several representations but the authorities have not permitted the petitoner to join his duties. Then he approached the State Tribunal. The Tribunal has wrongly rejected the claim petition of the petitioner on the ground of limitation. Against the aforesaid order, this writ petition has been filed.
It is to be noted that the claim petition, which was filed by the petitoner, was for the following reliefs:
" i) A declaration that the petitoner continues to serve on a confirmed post of a peon under the Zila Parishad, Kanpur with all consequent benefits of salary etc.
ii) A declaration that the petitoner is entitled to a sum ofRs.22000/- on account of arrears of salary etc. "
A written statement was filed on behalf of the respondents. A clear averment has been made that the claim petition filed by the petitioner for the relief mentioned above is barred by time. As the arrears of salary and other emoluments prior to 3 years cannot be taken into consideration, the Zila Parishad has clearly stated in their written statement that after 6.4.1973, the Civil Hospital, Ghatampur has been provincialised and its management, control and supervision were taken by the Health Department and placed in the charge of District Health Officer. A written statement on behalf of opposite parties no. 2 and 3 has been filed in which it has been stated that the petitioner applied for casual leave from 21.1.74 to 6.2.1974 due to the illness of his wife and extended the leave in piecemeal up to 9.7.1974. The petitioner was absent without leave or permission, as such no amount can be said to be due to the petitioner. The petitioner himself has submitted a resignation on 9.7.1974 with a condition that if his arrears of salary were not paid by 8.8.1974, he should be deemed to have resigned w.e.f. 8.8.1974. It appears that subsequently, the petitioner withdrew his resignation. It has also been stated that the contention of the petitoner to this effect that he was not permitted to join, is not correct. The petitoner did not approach the Dy. Chief Medial Officer at all.
By order dated 14.7.2005 a Division Bench of this Court has passed an order that as the illness slip has been filed and on the next date when the case is listed, the matter will be decided and the illness slip will not be entertained. Now again when the matter was taken up in the revised list, nobody is present on behalf of the petitoner to press this writ petition. Therefore, in view of the order passed by this Court, after perusal of the record and the judgment passed by the Tribunal, the writ petition is being decided on merits.
A finding to this effect has been recorded by the Tribunal that the petitioner himself had submitted a resignation and after 26.7.1974 had not joined the post. The Zila Parishad in their counter affidavit has clearly submitted that after the decentralization, the responsibility of payment of salary, if any, is of the State Government and the Zila Parishad cannot pay the same. The Tribunal has clearly recorded a finding of fact that the cause of action relating to payment of arrears of amount arose on 7.2.1974 after which the petitioner remained absent from duty and cause of action relating to refusal to treat the resignation as withdrawn arose on 8.8.1974. The limitation in respect of cause of action expired on 25.7.1977, 6.2.1977 and 7.8.1977 respectively. The claim petition was filed on 28.9.1978, as such the claim petition filed by the petitioner is time barred according to Section 4 of the Act. A finding to this effect has also been recorded that a civil suit for the same cause of action has also been filed. The Tribunal has recorded a categorical finding that there is nothing on record to show as to how the alleged representations mentioned in para 21 of the claim petition were sent. As such, it is very difficult to accept the contention of the petitoner.
After perusal of the judgment passed by the Tribunal, we see no infirmity in the judgment-dated 4.3.1996 passed by the Tribunal.
The writ petition is devoid of merit and is hereby dismissed. There shall be no order as to costs.
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