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Bishambhar Dayal v. The M.D., U.P. State Roadways Transport Corporation & Others - SPECIAL APPEAL DEFECTIVE No. 649 of 2005 [2005] RD-AH 5196 (7 November 2005)


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Court No.32

Special Appeal No.649 of 2005 (Defective)

Bishambhar Dayal vs. The Managing Director & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Sudhir Agarwal, J.

Heard Shri K.K. Mishra, learned counsel for the appellant and Shri Samir Sharma, learned counsel appearing for the Corporation and also perused the order of the Hon'ble Single Judge dated 13.9.2005 whereby review application moved on behalf of the Corporation was allowed and the writ petition was directed to be listed for hearing.  

It is contended by the appellant that in the garb of review, opportunity of rehearing could not have been allowed and, therefore, the Hon'ble Single Judge has committed error in allowing the review application filed by the respondents and reviewing its earlier order.  The record shows that initially the writ petition was allowed on 25.2.2004 by the Hon'ble Single Judge accepting the contention of the petitioner that the Assistant Regional Manager has no power to pass the order of termination and the said contention of the petitioner was not disputed by the brief holder of the learned counsel for the Corporation.  The facts, on the contrary, are that the power was available to the Assistant Regional Manager under the Legislative Act, a copy whereof is enclosed as Annexure 1 to the rejoinder affidavit filed in the review/recall application.  Since the writ petition was decided on the concession made by the brief holder of the learned counsel for the Corporation it cannot be said, when the fact came otherwise to the notice of the Hon'ble Single Judge, the review application filed on the basis of the Legislative Act amounts to giving opportunity of rehearing to the respondents in the same proceeding.  The order under appeal passed by Hon'ble Single Judge also shows that the official of the Corporation were playing fraud in the present matter inasmuch as a counter affidavit was filed, which was contrary to the parawise narrative sent by the Assistant Regional Manager of the Corporation and, in this regard, the departmental inquiry against the officer, who has sworn earlier counter affidavit, has been initiated and is pending.  In the aforesaid circumstances, it cannot be said that the Hon'ble Single Judge has committed any error in recalling its judgment and order dated 25.2.2004 and restoring the writ petition for hearing on merit afresh.  

The appeal, therefore, is without merit and is accordingly dismissed.  However, in the facts and circumstances of the case, since the matter is pending since 2002 and the appellant is out of service, we request the Hon'ble Single Judge to hear and decide the writ petition itself finally expeditiously, preferably within a period of two months subject to other business of the Court.




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