# by this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, Bahadursinh Lakhubhai Gohil

- **Citation:** (2022) 4 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-12
- **Case number:** Writ-A No. 21121 of 2020
- **Bench:** Attau Rahman Masoodi, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/by-this-court-in-commissioner-of-police-bombay-v-gordhandas-bhanji-bahadursinh-48314
- **Pages:** 7

## Headnote

A. Service Law - UP Public Service
(Tribunal) Act, 1976 - Section 4 - UP
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rule 14 -Reference
petition against award of punishment of
4 All. Murad Ahsan Vs. State of U.P.
761
censure entry before the Tribunal - Filed
beyond
limitation
of
one
year
-
Maintainability challenged - Computation
of limitation
- Memorial before the
Governor was filed - Claim to treat such
memorial as an alternative remedy for
computation of limitation was made -
Held, memorial before his Excellency the
Governor, is no remedy available to the
petitioner under the Rules, 1999, as
remedy for his grievance - Reference
application was barred by limitation,
therefore, it was not maintainable - High
Court upheld the Tribunal's order. (Para
11 and 17)
Writ petition dismissed. (E-1)
List of Cases cited :-

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES

"26. The contention was raised before
the High Court that the Circular dated
29.5.2008 has been issued by the authority
having no competence, thus cannot be
enforced. It is a settled legal proposition
that the authority which has been conferred
with the competence under the statute
alone can pass the order. No other person,
even a superior authority, can interfere,
with the functioning of the Statutory
Authority. In a democratic set up like ours,
persons occupying key positions are not
supposed to mortgage their discretion,
volition and decision making authority and
be prepared to give way to carry out
commands having no sanctity in law. Thus,
if any decision is taken by a statutory
authority at the behest or on suggestion of
a person who has no statutory role to play,
the same would be patently illegal. (Vide:
Purtabpur Co. Ltd. v. Cane Commissioner
of Bihar, Chandrika Jha v. State of Bihar,
Tarlochan Dev. Sharma v. State of Punjab
and Manohar Lal v. Ugrasen).

27. Similar view has been reiterated
by this Court in Commissioner of Police,
Bombay
v.
Gordhandas
Bhanji,
Bahadursinh
Lakhubhai
Gohil
v.
Jagdishbhai M. Pradesh Kamalia and
Pancham Chand and others v. State of
Himachal observing. that an authority
vested with the power to act under the
statute alone should exercise its discretion
following the procedure prescribed therein
and interference on the part of any
authority upon whom the statute does not
confer
any
jurisdiction,
is
wholly
unwarranted in law. It violates the
constitutional scheme."
 (Emphasis supplied)

33. The principle which can be
discerned from the above mentioned
judgments of the Supreme Court is that if a
statute impose a duty on an authority he
must exercise that power independently and
personally without any supervisory control
of some other authority. Even a superior
authority cannot interfere in his decision
which he has to take personally. And he
should not be guided by any other
person/authority.

34.

In
the
above
facts
and
circumstances, the District Magistrate has
no absolutely power to interfere in the
matter in any way and he is restrained to do
anything further in the matter.

35. In view of the above discussion,
this Court is of the opinion that the present
petition lacks merits and same is liable to
be dismissed with costs.

36. Accordingly, the present writ
petition is dismissed with costs.
----------
(2022)04ILR A760
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.04.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Writ-A No. 21121 of 2020

Murad Ahsan ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Shireesh Kumar

Counsel for the Respondent:
C.S.C.

A. Service Law - UP Public Service
(Tribunal) Act, 1976 - Section 4 - UP
Government
Servant
(Discipline
and
Appeal) Rules, 1999 - Rule 14 -Reference
petition against award of punishment of
4 All. Murad Ahsan Vs. State of U.P.
761
censure entry before the Tribunal - Filed
beyond
limitation
of
one
year
-
Maintainability challenged - Computation
of limitation
- Memorial before the
Governor was filed - Claim to treat such
memorial as an alternative remedy for
computation of limitation was made -
Held, memorial before his Excellency the
Governor, is no remedy available to the
petitioner under the Rules, 1999, as
remedy for his grievance - Reference
application was barred by limitation,
therefore, it was not maintainable - High
Court upheld the Tribunal's order. (Para
11 and 17)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. W.P. No. 444 (SB) of 2015; Vivekanand Singh
& anr. Vs St. of U.P. & anr. decided on
29.05.2015
2.
Karnataka
Power
Corp.
Ltd.
Vs
K.
Thangappan; (2006) 4 SCC 322
3. Director General of Police, Central Reserve
Police Force, New Delhi & ors. Vs P.M.
Ramalingam; (2009) 1 SCC 193

(Delivered by Hon'ble Brij Raj Singh, J.)

1. The petitioner has challenged the
judgment and order dated 13.10.2020
passed by the Uttar Pradesh State Public
Services Tribunal, Lucknow and further
prayer is made to quash the order dated
03.04.2018, which is the punishment order
of censure entry.

2. It is also mentioned that this
punishment order was challenged before
the U.P. State Public Services Tribunal,
Lucknow (hereinafter referred to as "the
Tribunal") and the Tribunal has dismissed
the reference on the ground of limitation.

3. Brief facts of the case are that the
petitioner was initially appointed on the
post of Assistant Engineer after qualifying
the
regular
selection
procedure
for
appointment and joined his services on
27.08.1997. The disciplinary enquiry was
instituted against the petitioner vide order
dated 24.07.2017 and a charge sheet was
issued. The petitioner submitted reply of
the said charge sheet dated 16.08.2017 by
denying all the charges. After conducting
the enquiry by the Enquiry Officer, the
order of punishment of censure entry was
passed on 03.04.2018.

4. Aggrieved with punishment order
dated 03.04.2018, the petitioner submitted
a memorial before his Excellency, the
Governor on 04.07.2018 and thereafter he
sent
reminder
on
28.01.2020.
The
petitioner
being
aggrieved
with
the
punishment
order
dated
03.04.2018
instituted a Reference Application No.331
of 2020 before the Tribunal. The reference
was admitted on 04.03.2020, however, no
detailed order was passed regarding the
admission simply notices were issued to the
opposite
parties
and
reference
was
admitted. The application for interim relief
was heard by the Tribunal on 25.08.2020
and thereafter the application for interim
relief was objected by the State and
objection was filed on 18.09.2020 on the
question of maintainability of the reference
application. The State had taken objection
against the application for condonation of
delay and it was pleaded on behalf of the
State that petition was not maintainable as
reference was time barred. The Tribunal
initially heard the matter on 18.09.2020 on
the point of maintainability and the
reference
was
dismissed
as
not
maintainable by the impugned judgment
dated 13.10.2020 and observation was
made that reference was time barred. Being
aggrieved
against
the
order
dated
13.10.2020 the writ petition has preferred.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Sri Shireesh Kumar, learned
counsel for the petitioner has made
submission that the arguments were heard
on the application for interim relief and not
on the point of maintainability of the
reference application. He has further
submitted that the reference petition was
already admitted by the order dated
04.03.2020 and the objection against the
interim relief submitted by the opposite
party could not have been considered for
deciding the reference application on the
ground of maintainability.

6. Learned counsel for the petitioner
has further submitted that Section 5 (1) (b)
(ii) provides for computing the period of
limitation and according to this, in
computing the period of limitation the
period beginning with the date on which
the public servant makes a representation
or prefers an appeal, revision or any other
petition (not being a memorial to the
Governor), in accordance with rules or
orders regulating his conditions of service
and ending with the date on which such
public servant has knowledge of the final
order passed on such representation,
appeal, revision or petition, as the case may
be, shall be excluded.

7. Learned counsel for the petitioner
has further submitted that Section 4 (7)
introduced vide U.P. Act No.5 of 2000
provides that for the purposes of subsections (5) and (6) any remedy available to
the public servant by way of submission of
a memorial to the Governor or to any other
functionary shall not be deemed to be one
of the remedies, which are available unless
the public servant had elected to submit
such
memorial.
The
petitioner
has
submitted that undisputedly he has availed
the remedy of memorial before his
Excellency the Governor and no decision
on it has been communicated to him till
date.

8. Heard Sri Shireesh Kumar, learned
counsel for the petitioner, learned Standing
Counsel for the State-respondent and
perused the judgment of the U.P. State
Public Services Tribunal, Lucknow.

9. After looking into the record, it is
found that the punishment order of censure
entry was awarded on 03.04.2018. The
petitioner
filed
memorial
before
his
Excellency the Governor on 04.07.2018
and thereafter, he sent reminder on
28.01.2020. Sub-section (5), (6) and (7) of
Section 4 of the U.P. Public Service
(Tribunal) Act, 1976 (hereinafter referred
to as the "Act, 1976") is quoted below:-

"(5) The Tribunal shall not ordinarily
admit a reference unless it is satisfied that
the public servant has availed of all the
remedies available to him under the
relevant service rules, regulations or
contract as to redressal of grievances.

(6) For the purpose of Sub-Section (5)
a public servant shall be deemed to have
availed of all the remedies available to him
if a final order has been made by the State
Government, an authority or officer thereof
or other person competent to pass such
order under such rules or regulations or
contract rejecting any appeal preferred or
representation made by such public servant
in connection with the grievance:

Provided that where no final order is
made by the State Government, authority
officer or other person competent to pass
such order with regard to the appeal
preferred or representation made by such
public servant within six months from the
date on which such appeal was preferred
or representation was made, the public
servant may, by a written notice by
4 All. Murad Ahsan Vs. State of U.P.
763
registered post require such competent
authority to pass the order and if the order
is not passed within one month of the
service of such notice, the public servant
shall be deemed to have availed of all the
remedies available to him

(7) For the purpose of sub-section (5)
and (6) any remedy available to the public
servant by way of submission of a memorial
to the Governor or to any other functionary
shall not be deemed to be one of the
remedies, which are available unless the
public servant had elected to submit such
memorial."

10. Sub Section 6 clearly indicates
that for the purpose of sub-section (5) a
public servant shall be deemed to have
availed of all the remedies available to him
if a final order has been made by the State
Government, an authority or Officer
thereof or other person competent to pass
such order under such rules or regulations
or contract rejecting any appeal preferred
or representation made by such public
servant in connection with the grievance. In
case
of
the
petitioner,
against
the
punishment order dated 03.04.2018 no
remedy was available to the petitioner
except review as provided in Rule 14 of
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 (hereinafter referred
to as "the Rules, 1999") .

11. There is no provision of
memorial before his Excellency the
Governor, which was availed by the
petitioner. As per his case, the proviso of
sub-section (7) of Section 4 is also
relevant wherein it is provided that for
the purpose of sub-sections (5) and (6)
any remedy available to the public
servant by way of submission of a
memorial to the Governor or to any other
functionary shall not be deemed to be one
of the remedies. It is thus clear that
memorial before his Excellency the
Governor, is no remedy available to the
petitioner under the Rules, 1999, as
remedy for his grievance.

12. Section 5 (1) (b) (i) and (ii) of
the Act, 1976, are also relevant and the
same are quoted below:-

"[(b)
The
provisions
of
the
Limitation Act, 1963 (Act 36 of 1963)
shall mutatis mutandis apply to reference
under Section 4 as if a reference were a
suit filed in civil court so, however, that-

(i) Notwithstanding the period of
limitation prescribed in the Schedule to
the said Act, the period of limitation for
such reference shall be one year;

(ii)-- in computing the period of
limitation the period beginning with the
date on which the public servant makes a
representation or prefers an appeal,
revision or any other petition (not being a
memorial
to
the
Governor),
in
accordance with the rules or orders
regulating his conditions of service, and
ending with the date on which such
public servant has knowledge of the final
order passed on such representation,
appeal, revision or petition, as the case
may be, shall be excluded:

Provided that any reference for which
the period of limitation prescribed by the
Limitation Act, 1963 is more than one year,
a reference under Section 4 may be made
within the period prescribed by the Act, or
within
one
year
next
after
the
commencement of the Uttar Pradesh Public
Services (Tribunals) (Amendment) act,
1985 whichever period expires earlier:

Provided further that nothing in this
clause as substituted by the Uttar Pradesh
Public Services (Tribunal) (Amendment)
Act, 1985, shall affect any references made
764 INDIAN LAW REPORTS ALLAHABAD SERIES
before and pending at the commencement
of the said Act."

13. The period of limitation for
reference is one year prescribed in the
Schedule of the Act. Section 5 (ii) clearly
putting bar for the remedy of memorial to
the Governor wherein it is provided that in
computing the period of limitation the
period beginning with date on which the
public servant makes a representation or
prefers an appeal, revision, or any other
petition after not being a memorial to the
Governor was in accordance with law or
orders regulating his condition of service
and nothing with the date on which such
public servant has knowledge of final
orders passed on such representation,
appeal, revision or petition as the case may
be shall be excluded.

14. In the case of Vivekanand Singh
and another Vs. State of U.P. and another
in W.P. No.444 (SB) of 2015 decided on
29.05.2015, provisions of Section 5 (1) (b)
(i) of the Tribunal Act, 1976, has been
considered. Learned Tribunal has recorded
finding relying upon exposition of law, in
para 6 of the judgment by observing that
the petitioner should have filed claim
petition on the expiry of six months from
the date of filing of appeal on 09.09.2008.
The limitation period for filing claim
petition, after lapse of six months, has
expired on 08.03.2009. The petitioner filed
the claim petition on 20.12.2010, which
was highly time barred. The present case is
also highly time barred as the impugned
punishment
order
was
passed
on
03.04.2018 and claim petition was filed on
04.03.2020.

15. On the point of limitation, Hon'ble
Apex Court in the case of Karnataka
Power Corpn. Ltd. v. K. Thangappan,
reported in (2006) 4 SCC 322, has held in
para 6, 7 and 10 as under:-

"6. Delay or laches is one of the
factors which is to be borne in mind by the
High Court when they exercise their
discretionary powers under Article 226 of
the Constitution. In an appropriate case the
High Court may refuse to invoke its
extraordinary powers if there is such
negligence or omission on the part of the
applicant to assert his right as taken in
conjunction with the lapse of time and
other circumstances, causes prejudice to
the
opposite
party.
Even
where
fundamental right is involved the matter is
still within the discretion of the Court as
pointed out inDurga Prashad v. Chief
Controller of Imports and Exports [(1969)
1 SCC 185 : AIR 1970 SC 769] . Of course,
the discretion has to be exercised judicially
and reasonably.

7. What was stated in this regard by
Sir Barnes Peacock in Lindsay Petroleum
Co.v. Prosper Armstrong Hurd [(1874) 5
PC 221 : 22 WR 492] (PC at p. 239) was
approved by this Court in Moon Mills Ltd.
v. M.R. Meher [AIR 1967 SC 1450] and
Maharashtra
SRTC
v.
Shri
Balwant
Regular Motor Service [(1969) 1 SCR 808 :
AIR 1969 SC 329] . Sir Barnes had stated:

"Now, the doctrine of laches in courts
of equity is not an arbitrary or a technical
doctrine. Where it would be practically
unjust to give a remedy either because the
party has, by his conduct done that which
might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and
neglect he has though perhaps not waiving
that remedy, yet put the other party in a
situation in which it would not be
reasonable to place him if the remedy were
afterwards to be asserted, in either of these
cases, lapse of time and delay are most
material. But in every case, if an argument
4 All. Murad Ahsan Vs. State of U.P.
765
against relief, which otherwise would be
just, is founded upon mere delay, that delay
of course not amounting to a bar by any
statute of limitation, the validity of that
defence must be tried upon principles
substantially equitable. Two circumstances
always important in such cases are, the
length of the delay and the nature of the
acts done during the interval which might
affect either party and cause a balance of
justice or injustice in taking the one course
or the other, so far as it relates to the
remedy."

10. It has been pointed out by this
Court
in
a
number
of
cases
that
representations would not be adequate
explanation to take care of delay. This was
first stated in K.V. Rajalakshmiah Setty v.
State of Mysore [(1967) 2 SCR 70 : AIR
1967 SC 993] . This was reiterated in
Rabindranath Bose case [(1970) 1 SCC 84
: AIR 1970 SC 470] by stating that there is
a limit to the time which can be considered
reasonable for making representations and
if the Government had turned down one
representation the making of another
representation on similar lines will not
explain the delay. In State of Orissa v.
Pyarimohan Samantaray [(1977) 3 SCC
396 : 1977 SCC (L&S) 424 : AIR 1976 SC
2617] making of repeated representations
was
not
regarded
as
satisfactory
explanation of the delay. In that case the
petition had been dismissed for delay
alone. (See State of Orissa v. Arun Kumar
Patnaik [(1976) 3 SCC 579 : 1976 SCC
(L&S) 468 : AIR 1976 SC 1639] also.)"

16. We are of the view that the cause
of action shall be taken to arise not from
the date of the original adverse order but on
the date when the order of the higher
authority where a statutory remedy is
provided
entertaining
the
appeal
or
representation is made and where no such
order is made, though the remedy has been
availed of, a six months' period from the
date of preferring of the appeal or making
of the representation shall be taken to be
the date when cause of action shall be taken
to have first arisen. We, however, make it
clear that this principle may not be
applicable when the remedy availed of has
not been provided by law. Repeated
unsuccessful representations not provided
by law are not governed by this principle.

17. In the present case, it is found that
the petitioner had no statutory remedy
rather he preferred memorial to his
Excellency the Governor. We, therefore,
uphold the order of the Tribunal and the
reference
application
was
barred
by
limitation,
therefore,
it
was
not
maintainable. The petitioner has submitted
that the reference was admitted on
04.03.2020, therefore, the question of
maintainability was not open. We are
unable to persuade ourselves with the said
argument
because
the
point
of
maintainability has to be decided by
reasoned and speaking order which has
been done by the Tribunal. The order of
admission
dated
04.03.2020
was
simplicitor order but the point in issue was
not decided by reasoned and speaking
order. Hon'ble the Supreme Court in the
case of Director General of Police, Central
Reserve Police Force, New Delhi and
others Vs. P.M. Ramalingam, (2009) 1
SCC 193 has observed in para 9 that
without
deciding
the
question
of
maintainability of review petition, the
interim order could not have been passed.
Para 9 of the said judgment is quoted
below:-

"9. As rightly submitted by learned
counsel for the appellants, the High Court
could not have passed the interim order
766 INDIAN LAW REPORTS ALLAHABAD SERIES
which virtually means allowing the review
petition, without deciding the question of
maintainability of the review petition. Such
a course is not permissible in law."

18. In the present case, it is pointed
out here that the petitioner was present
during hearing of the application for
interim relief that is why the State has
taken objection regarding maintainability
of the reference application we hold that
reference petition was not maintainable as
on the ground of limitation, therefore, on
the application for interim relief question of
maintainability was rightly considered by
the Tribunal.

19. In view of the aforesaid legal
discussion, we are unable to persuade
ourselves to the arguments advanced by
learned counsel for the petitioner. The writ
petition is dismissed accordingly.

20. No order as to costs.
----------

(2022)04ILR A766
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ-C No. 1214 of 2022

I.I.T. Kanpur ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rohan Gupta

Counsel for the Respondents:
A.S.G.I., Sri Brijesh Kumar, Sri Vivek Kumar
Singh, Sri P.H. Vashishth, Sri B.P. Singh (Senior
Adv.)
A. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
question of making or refusing to make a
reference for adjudication is the discretion
of the Government - power to make a
reference is an administrative power -
when the Government decides to make
Reference, an industrial dispute between
the employer and his employees, must
either
exists
or
is
apprehended
-
Government has to keep in mind as to
whether the industrial dispute is still
existing or live dispute and has not
become a stale claim - No reference is
contemplated when the dispute is not an
industrial dispute, or industrial dispute no
longer exists or is not apprehended, or
where
industrial
dispute
is
already
adjudicated or in respect of which there is
an agreement or a settlement between
the parties or where the industry in
question is no longer in existence (Para
24)

B. Civil Law - Labor Law - Industrial
Disputes Act, 1947 - Section 10 (1) -
Reference of disputes to Tribunals -
Constitution
of
India,
Article
226
-
Quashing of Reference - High Court has
jurisdiction to entertain a writ petition
when there is an allegation that there is
no industrial dispute in existence or
apprehended on the date of reference for
adjudication.

As a rule, writ court does not interfere with a
reference order for the reason of such order
being purely administrative - Such orders, only
set in motion, the adjudicatory procedure by
making the reference - writ Court does not
readily quash such administrative orders &
thereby prevent/injunct the Industrial Tribunal
to enter into adjudication of the industrial
dispute, at the initial stage as it does not cause
any prejudice to any party - parties are at liberty
to raise all defence before the Labour Court -
However there is no embargo on the writ Court
to quash a wholly inappropriate or undesirable
or invalid reference order, in case no industrial
dispute exists - it must be seen as to whether
there exist an industrial dispute before the same
may be referred to adjudication - High Court has