# Rama Shanker Pandey v. Director General

- **Citation:** (2003) 2 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-13
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-pandey-v-director-general-40088
- **Pages:** 5

## Headnote

Constitution of India, Art 226-Mandamus
-seeking
direction
to
decide
the
representation-No statutory provisions
about representation shown-held court
declined to issue any direction.

Held- Para 17

Court, therefore, declines to exercise its
extra-ordinary jurisdiction under Article
226 of the Constitution of India as
prayed for by the petitioner on the
ground that a claim which would have
become
bared
by
time
cannot
be
permitted to be revived under the guise
of seeking a direction for deciding the
representation.
Admittedly,
the
petitioner has made a prayer for a
direction to the respondents to decide
his representation dated 12th August,
1999 which claims the payment which
was due in the year 1984.

## Text

http://www.allahabadhighcourt.nic.in
2 All] R.S. Pandey V. D.G.(Administration), Medical Health, Family Welfare and others
307
Thiruvirkolam's case (supra). More so, in
Graphite
India
Ltd.
&
Anr.
Vs.
Durgapur Project Ltd., (1999) 7 SCC
645, the similar principle has been
reiterated and it has been held that when
an action is approved, it would relate back
to the date of action.

18. In the instant case as the result of
the enquiry held by the Labour Court
relate back to the date of removal by the
employer,
the
workman
cannot
be
awarded any relief.

19. In view of the above, petition
succeeds and is allowed. Labour Court
Award dated 13.11.1995 is hereby set
aside and the punishment of removal
imposed by the employer is held to be
commensurate to the delinquently.

20. In the facts and circumstances of
the case, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2003

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ petition No.11678 of 2003.

Rama Shanker Pandey
...Petitioner
Versus
Director
General
(Administration)
Medical Health, Family Welfare Swasthya
Bhawan, Lucknow
 ...Respondents

Counsel for the Petitioner:
Sri Jagdish Lal
Sri R.M. Singh
Sri. S.K. Pandey

Counsel for the Respondents:
S.C.
Constitution of India, Art 226-Mandamus
-seeking
direction
to
decide
the
representation-No statutory provisions
about representation shown-held court
declined to issue any direction.

Held- Para 17

Court, therefore, declines to exercise its
extra-ordinary jurisdiction under Article
226 of the Constitution of India as
prayed for by the petitioner on the
ground that a claim which would have
become
bared
by
time
cannot
be
permitted to be revived under the guise
of seeking a direction for deciding the
representation.
Admittedly,
the
petitioner has made a prayer for a
direction to the respondents to decide
his representation dated 12th August,
1999 which claims the payment which
was due in the year 1984.

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition was heard and
dismissed by me on 13th March, 2003 for
the reasons to be recorded later on. Now
here are the reasons for dismissing the
aforesaid writ petition.

2. Heard learned counsel for the
petitioner and the learned Standing
Counsel for the Respondents. In view of
the order proposed to be passed, it is not
necessary to invite counter-affidavit.

3. The petitioner, by means of this
writ petition under Article 226 of the
Constitution of India, has prayed for the
following reliefs:

(i) to issue a writ, order or direction in
the nature of mandamus commanding
and directing respondent no. 3 to
decide the representation of the
petitioner dated 12.8.1999 (Annexure
'12' to the writ petition) forthwith.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
308
(ii) to issue any other suitable writ, order
or direction which this Hon'ble Court
may deem fit and proper in the
circumstances of the case.

(iii) to award cost of the petition to the
petitioner.

4. The petitioner in paragraph 1 of
the writ petition has stated that this is the
first writ petition on behalf of the
petitioner for mandamus commanding and
directing respondent no. 3 to decide the
representation of the petitioner dated 12th
August, 1999 forthwith.

5. According to the statement of fact
made in the writ petition, the petitioner,
who is employee of Medical Health and
Family Welfare Department, was posted
at Mental Hospital, Agra. He was
transferred vide order dated 24th April,
1984 passed by the respondent no. 1 from
Mental
Hospital,
Agra
to
District
Hospital, Pratapgarh on the post of Store
Keeper. It is further averred in the writ
petition that the petitioner was relieved
from his post from Mental Hospital, Agra
but during the period of joining, he fell ill
and was confined to bed on 16th May,
1984 and an intimation to this effect was
sent to the respondent no. 1 by the
petitioner vide his letter dated 16th May,
1984. It is after the petitioner has
recovered from illness, reported for duty
to Chief Medical Officer, Pratapgarh on
28th June, 1984 but the respondent no.2
did not allow the petitioner to join his
duties and informed the petitioner that the
transfer of Sri Panna Lal, Store-Keeper
has since been stayed by the respondent
no. 1 till further orders vide order dated
14th June, 1984, the petitioner should now
see to the respondent no.1 for his
alternative
posting
elsewhere.
The
petitioner thereafter narrated that he has
entered into long drawn correspondence
before he filed the Writ Petition No.
15602 of 1984 before this Court for a writ
of mandamus commanding the respondent
no. 1 to issue joining letter to the
petitioner and release his pay from May,
1984 onwards. A Division Bench of this
Court was pleased to pass the following
order on 19.11.1984 :

"List the petition for admission
immediately after the expiry of one
month. In the meantime respondent is
directed to pay salary to the petitioner
including arrears due from May, 1984
within a month or show cause."

6. It is further stated in the writ
petition that the respondent no. 1 neither
paid the salary to the petitioner nor
showed any cause inspite of sufficient
time granted to him by this Court.

7. A counter-affidavit has been filed
in the aforesaid writ petition no. 15602 of
1984 with the statement that since the
petitioner has been relieved from his post
at Mental Hospital, Agra and thereafter he
did not join his post at Pratapgarh, he was
not entitled for any indulgence by this
Court. The fact remains that the petitioner
having
been
relieved
from
Mental
Hospital, Agra, did not join at Pratapgarh.
The petitioner further stated in this writ
petition that so far as transfer order dated
24th April, 1984 is concerned, the same
was stayed by the respondent no. 1 on 14th
June, 1984 so far as it relates to the
transfer of Sri Panna Lal Srivastava, who
was transferred vide petitioner and the
petitioner
was
diverted
to
S.R.N.
Hospital, Allahabad vide order dated 24th
July, 1984 after the interruption of 40
days whereas by that time, the transfer
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2 All] R.S. Pandey V. D.G.(Administration), Medical Health, Family Welfare and others
309
order of Sri Panna Lal Srivastava has
already been stayed by respondent no. 1
vide order dated 14th June, 1984, as stated
above. In these circumstance, according
to the petitioner, the order for alternative
posting of petitioner should have been
passed or the earlier order be recalled but
since it had not been done so, the
petitioner could not join after the recovery
from illness. So far as the order directing
the petitioner to join at S.R.N. Hospital,
Allahabad vide order dated 24th July,
1984
and
5th
November,
1984
is
concerned,
the
petitioner
had
no
knowledge and the statement made by the
respondents in the counter-affidavit of the
writ petition no. 15602 of 1984 filed by
the petitioner that the petitioner was not
willing to join at S.R.N. Hospital,
Allahabad nor he did join at Pratapgarh is
not correct. In these circumstances, the
petitioner had no option but to file the
present writ petition as stated above.

8. In paragraph 16 of the writ
petition, the petitioner has stated that the
writ petition itself was filed for a direction
to the respondent no. 1 for issuing joining
letter to the petitioner and the case of the
respondent no. 1 before this Court was
that he had issued such a letter which was
the duty of the respondent no. 2 to serve
such a letter so that the petitioner could
have joined his duties at the place directed
by the respondent no. 1.

9. Continuing with the narration of
fact, the writ petition no. 15602 of 1984
was dismissed by this Court and the
petitioner has stated this fact in paragraph
16 of present writ petition in the
following sentence:

"Hon'ble High Court dismissed the
aforesaid writ petition No. 15602 of 1984
on 25.03.1985" instead of directing
respondents to serve the copy of the
joining order."

10. Aggrieved by the order of this
Court dated 25th March, 1985 dismissing
the Writ Petition No. 15602 of 1984, the
petitioner preferred special leave to
appeal petition before the Supreme Court
of India. The said special leave petition
was dismissed by the Supreme Court vide
its order dated 28th November, 1985
which has been annexed by the petitioner
as Annexure '1' to the writ petition,
which runs as under :

"Special leave petition is dismissed
with the direction that the petitioner be
served with the order of posting within
two weeks from today. He may be
permitted to join his duty."

11. The petitioner has stated in
paragraph 20 of the writ petition that after
the service of the order of the Supreme
Court of India, the respondent no. 1
served the copy of the aforesaid joining
order dated 5th November, 1984 on the
petitioner and consequently the petitioner
submitted his joining report at District
Hospital, Pratapgarh on 16th December,
1985. A copy of the order dated 11th
December, 1985 is annexed as Annexure
'2' to the writ petition. Thereafter, the
grievance of the petitioner seems to be
that since the respondent no. 1 was
deliberately not permitting the petitioner
to join his duties and he has been
permitted to join the duties only on the
direction, as stated above, by the Supreme
Court, the petitioner is entitled for the
payment of salary for the period of so
called absence due to petitioner's non
joining at Pratapgarh, the petitioner
preferred another writ petition i.e. Civil
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
310
Misc. Writ Petition No. 13940 of 1986
before this Court in which this Court was
pleased to pass the following order on 29th
August, 1986 :-

"We have heard Sri Jagdish Lal,
learned counsel for the petitioner and also
learned
counsel
appearing
for
the
respondent.

Let
interim
mandamus
issue
directing the Director Medical Health and
Family Planning Swasth Bhawan, U.P.,
Lucknow
the
respondent
to
direct
payment to the petitioner the arrears
towards the salary and other emoluments
the period from May, 1984 to Dec.
15.12.1985 within three weeks from the
date of presentation before him the
certified copy of this order or show cause.

List the petition after three weeks."

12. The aforesaid writ petition no.
13940 of 1986 was finally decided by this
Court vide its order dated 11th February
1987 which runs as under :

"Since the allegations contained in
the writ petition are disputed we direct the
petitioner to file representation in regard
to his grievances to the Director of
Medical Health and Family Planning
Lucknow within three weeks. If the
petitioner filed the representation the
same shall be decided within six weeks
from the date of receipt of the
representation. With aforesaid direction,
the writ is dismissed."

13. It is this order passed by this
Court, which according to the petitioner,
has given rise to the filing of the present
writ petition as the petitioner though filed
his representation but the same has not
been decided as per direction of this Court
within six weeks from the date of receipt
of the representation. The petitioner has
stated that he has filed a representation
pursuant to the direction issued by this
Court dated 11th February, 1987 on 20th
April, 1987 but he has not stated as to
when the representation was received by
the respondent no. 1, who were directed
by this Court to decide the representation
of petitioner and the allegation of the
petitioner is that inspite of direction dated
11th February, 1987 in Writ Petition No.
13940 of 1986, the representation dated
20th April, 1987 has not been decided by
the respondent no. 1. However, in the next
paragraph, the petitioner has stated that
the respondent no. 1 has directed after
lapse of about 22 months to release
personal service record of the petitioner
and last payment certificate be sent and
this direction was issued to the respondent
no. 2 with further direction to pay arrears
of salary to the petitioner, if any. Inspite
of the order dated 13th January, 1989, no
steps have been taken by the respondent
no. 2 nor the salary of the petitioner has
been paid, which, according to the
petitioner, remained un-paid till date,
which has resulted into filing the
representation after representation for
which a writ of mandamus is sought by
the petitioner by means of the present writ
petition that the representation dated 12th
August, 1999 be decided forthwith.

14. Learned counsel for the
petitioner has argued that non complying
with the order of this Court dated 11th
February, 1987 and the direction issued
by the respondent no. 1 to respondent no.
2 makes the petitioner entitled for a writ
of mandamus as prayed by the petitioner
to get his representation dated 12th
August, 1999 decided.
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2 All] Bhai Khan V. State
311
15. I am afraid, this argument cannot
be accepted Even if, it is assumed that this
Court has issued a direction by the order
dated 11th February, 1987 which has not
been complied with by the respondent, the
petitioner could have approached this
Court on the contempt jurisdiction instead
waiting the same for such a long time as
has been done by the petitioner, which has
again resulted into filing of the writ
petition.

16.

From
the
facts
and
circumstances, it is clear that the dispute
is with regard to non-payment of salary
and other consequential benefits for a
period of 40 days. A perusal of the
correspondence annexed by the petitioner
in the writ petition clearly demonstrates
that the petitioner since have not reported
for joining pursuant to the transfer from
Mental Hospital, Agra at Pratapgrah, the
salary and other consequential benefits
could not be paid as till the petitioner
reported for duty after he has approached
the Apex Court by means of special leave
petition referred to above, the order
whereof is Annexure '2' to the writ
petition.

17. Learned counsel for the
petitioner has failed to demonstrate any
statutory
provision
under
which
respondents are under statutory duty to
decide the petitioner's representation
because the petitioner's right to receive
payment itself was under jeopardy for
which, according to the narration of the
facts, long drawn correspondence entered
into. Now, the petitioner by means of this
writ petition under Article 226 of the
Constitution of India, has sought for a
writ of mandamus for the payment of
salary and other consequential benefits
which ought to have been paid to him,
according to the petitioner, in the year
1984 after laps of about 22 months. This
Court, therefore, declines to exercise its
extra-ordinary jurisdiction under Article
226 of the Constitution of India as prayed
for by the petitioner on the ground that a
claim which would have become barred
by time cannot be permitted to be revived
under the guise of seeking a direction for
deciding the representation. Admittedly,
the petitioner has made a prayer for a
direction to the respondents to decide his
representation dated 12th August, 1999
which claims the payment which was due
in the year 1984.

18. In this view of the matter, this
writ petition seeking a writ of mandamus
for deciding the representation of the
petitioner in equity jurisdiction under
Article 226 of the Constitution of India, in
my opinion, is not a fit case in which this
Court should interfere.

This writ petition is, therefore,
devoid of any merits and it is accordingly
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD MARCH 11, 2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE Y.R. TRIPATHI, J.

Criminal Appeal No.1569 of 1981

Bhai Khan

 ...Appellant (in Jail)
Versus
State

...Respondent

Counsel for the Appellant:
Sri P.N. Misra

Counsel for the Respondent:
A.G.A.