# State of U.P. & Anr v. Birendra Bahadur Singh

- **Citation:** (2024) 8 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-08
- **Case number:** Writ-A No. 15076 of 2021
- **Bench:** Rajan Roy, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-birendra-bahadur-singh-52332
- **Pages:** 16

## Headnote

(A) Civil Law - Constitution of India,1950
-
Article
226
-
UP
Public
Service
(Tribunal) Act, 1976 - Sections 4, 4-A, 4-
(1), 4(5), 4(6), 5, 5(1)(b), 5(1)(b)(i) &
5(1)(b)(ii) - The Limitation Act, 1963 -
Section - 3, Article 173 - Writ Petition filed
by claimant - challenging the order of Tribunal
- order of punishment of year 2007 -
departmental Appeal filed in year 2008 -
Revision of year 2008 is Pending - Claimant
moved a Legal Notice in year 2014 U/s 4(6) of
the Act, 1976 - as revision was still pending
claimant filed Claim petition before Tribunal in
year 2014 - which was dismissed on the ground
of limitation - court finds that, provision of
limitation for filing a reference is contained in
Section 5(1)(b) and not in section 4(6) - Clause
(i) & (ii) of Section 5(1) (b) provide a limitation
for filing a reference in case where a final order
has been passed - no limitation has been
proscribed for a case where no final order has
been passed - Limitation will starts only on an
order being passed on appeal etc., if no orders
have been passed and such appeal etc. remain
pending , then, it cannot be said that limitation
has started - held, court cannot read into the
provision something which is not mentioned
therein by the legislation. (para - 22, 23, 24,
27)

(B) Civil Law - Constitution of India -
Article 226 - UP Public Service (Tribunal)
Act, 1976 - Sections 4, 4-A, 4-(1), 4(5),
4(6), 5, 5(1)(b), 5(1)(b)(i) & 5(1)(b)(ii) -
The Limitation Act, 1963 - Section - 3,
Article 173 - Writ Petition filed by state -
challenging the order of Tribunal - claim
petition filed in year 2015 challenging the order
of punishment of year 2006 - departmental
Appeal was filed in year 2006 - but same was
still pending as same was not forwarded to the
State Govt. at relevant time - claimant moved a
Legal Notice in year 2015 U/s 4(6) of the Act,
1976 - claimant filed Claim petition in year 2015
- Tribunal allowed the petition - State takes
plea that, claim petition was hopelessly barred
by limitation - court observed that, why should
State or its Authorities raise such objections
when they have themselves not decided the
appeal, revision etc. within a reasonable time -
held, to avoid such a situation as has arisen in
this case, the Appellate or Revisional or other
Authority as may have been empowered to take
a decision on appeal etc. prescribed in the
Service Rules should do so expeditiously and if
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
381
any time period is prescribed in the Service
Rules itself, the same be adhered, if it is not
prescribed, then, the period mentioned in the
proviso to section 4(6) should be taken as a
guiding principle and final order should be
passed in all such pending proceedings within
six months of its initiation by the public servant
- Executive and the Legislature should look into
this aspect a nd make appropriate provision in
the Act, 1976 making it mandatory for the
Appellate or Revisional Authorities etc. to pass
final
orders
in
such
proceedings
within
reasonable time - till this done, plea of
Limitation was not seen by the tribunal and it
erred in deciding the claim petition on merits -
hence, plea of State is thus rejected, but, on
merits, looking into the gravity of the charge
which has been found proved, the punishment
order did not require any interference - writ
petition dismissed. (Para -30, 31, 32, 33, 36)

Writ petitions dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,741 of 57,779. This is a partial read: ask again with offset=39741 for what follows._

380 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority, Kushinagar and that of the
appellate authority namely Chairman the
Regional Cane Service Authority, Deoria
dated 30.10.2015 are hereby quashed.

16. Petitioner is held entitled to all post
retirement dues as admissible in law. Entire
dues shall be paid to the petitioner by the
competent within two months from the date of
presentation of certified copy of this order.
Since termination/ removal order has been
held to be absolutely null and void for want of
lawful authority petitioner is also held entitled
to interest at the rate of 8% from the date of
superannuation till the actual payment is made
of post retirement dues. It is also provided that
in case post retirement dues as admissible in
law are not paid within the prescribed period
as directed hereinabove, petitioner shall be
entitled to additional interest at the rate of 12%
upon the expiry of two months' period till the
actual payment is made.
----------
(2024) 8 ILRA 380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 15076 of 2021
And
Writ-A No. 16773 of 2019

State of U.P. & Anr. ...Petitioners
Versus
Birendra Bahadur Singh ...Respondent

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:

(A) Civil Law - Constitution of India,1950
-
Article
226
-
UP
Public
Service
(Tribunal) Act, 1976 - Sections 4, 4-A, 4-
(1), 4(5), 4(6), 5, 5(1)(b), 5(1)(b)(i) &
5(1)(b)(ii) - The Limitation Act, 1963 -
Section - 3, Article 173 - Writ Petition filed
by claimant - challenging the order of Tribunal
- order of punishment of year 2007 -
departmental Appeal filed in year 2008 -
Revision of year 2008 is Pending - Claimant
moved a Legal Notice in year 2014 U/s 4(6) of
the Act, 1976 - as revision was still pending
claimant filed Claim petition before Tribunal in
year 2014 - which was dismissed on the ground
of limitation - court finds that, provision of
limitation for filing a reference is contained in
Section 5(1)(b) and not in section 4(6) - Clause
(i) & (ii) of Section 5(1) (b) provide a limitation
for filing a reference in case where a final order
has been passed - no limitation has been
proscribed for a case where no final order has
been passed - Limitation will starts only on an
order being passed on appeal etc., if no orders
have been passed and such appeal etc. remain
pending , then, it cannot be said that limitation
has started - held, court cannot read into the
provision something which is not mentioned
therein by the legislation. (para - 22, 23, 24,
27)

(B) Civil Law - Constitution of India -
Article 226 - UP Public Service (Tribunal)
Act, 1976 - Sections 4, 4-A, 4-(1), 4(5),
4(6), 5, 5(1)(b), 5(1)(b)(i) & 5(1)(b)(ii) -
The Limitation Act, 1963 - Section - 3,
Article 173 - Writ Petition filed by state -
challenging the order of Tribunal - claim
petition filed in year 2015 challenging the order
of punishment of year 2006 - departmental
Appeal was filed in year 2006 - but same was
still pending as same was not forwarded to the
State Govt. at relevant time - claimant moved a
Legal Notice in year 2015 U/s 4(6) of the Act,
1976 - claimant filed Claim petition in year 2015
- Tribunal allowed the petition - State takes
plea that, claim petition was hopelessly barred
by limitation - court observed that, why should
State or its Authorities raise such objections
when they have themselves not decided the
appeal, revision etc. within a reasonable time -
held, to avoid such a situation as has arisen in
this case, the Appellate or Revisional or other
Authority as may have been empowered to take
a decision on appeal etc. prescribed in the
Service Rules should do so expeditiously and if
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
381
any time period is prescribed in the Service
Rules itself, the same be adhered, if it is not
prescribed, then, the period mentioned in the
proviso to section 4(6) should be taken as a
guiding principle and final order should be
passed in all such pending proceedings within
six months of its initiation by the public servant
- Executive and the Legislature should look into
this aspect a nd make appropriate provision in
the Act, 1976 making it mandatory for the
Appellate or Revisional Authorities etc. to pass
final
orders
in
such
proceedings
within
reasonable time - till this done, plea of
Limitation was not seen by the tribunal and it
erred in deciding the claim petition on merits -
hence, plea of State is thus rejected, but, on
merits, looking into the gravity of the charge
which has been found proved, the punishment
order did not require any interference - writ
petition dismissed. (Para -30, 31, 32, 33, 36)

Writ petitions dismissed. (E-11)

List of Cases cited:

1. Samarjeet Singh Vs State of UP & ors. (2006
(3) AWC 2750),

2. Mahendra Pratap Rai Vs St. of U.P. & ors.
(1986 (4) LCD 209).

(Delivered by Hon'ble Rajan Roy, J.)

1. Both these writ petitions involve
similar facts and common issues, therefore,
they have been heard together and are
being decided by a common judgment.

2. Heard Shri Rakesh Kumar along
with Shri Shiv Kumar Soni and Shri Ravi
Shanker Mishra, learned counsel for the
petitioner and Shri Anand Kumar Singh,
learned
Standing
Counsel
for
the
respondent- State in Writ - A No. 16773
of 2019. In connected Writ-A No.15076
of 2021, none has appeared on behalf of
the respondent while learned Standing
Counsel has argued on behalf of the
State.

3. As regards Writ - A No. 16773 of
2019 we find that the petitioner, who was
claimant in Claim Petition No. 232 of 2014
before the Tribunal, was visited with a
punishment order of 27.10.2007. He filed
an
Appeal
which
was
decided
on
25.10.2008. He thereafter filed a Revision
on 22.12.2008. He ultimately gave a legal
notice on 02.01.2014 as is referable under
the proviso to Section 4(6) of the Act, 1976
and on failure to pass any order in the
revision, the said Claim Petition was filed
in the year 2014, which has been dismissed,
albeit on merits on 29.01.2019. The
petitioner- Ram Babu's counsel contended
that there is no limitation prescribed for
giving a legal notice under the proviso to
Section 4(6) of the Act, 1976 and that the
State can not take advantage of its own
negligence and lapse in not passing any
order in Appeal. When no limitation has
been prescribed it is not open for this Court
to prescribe any limitation in the matter and
that in the facts of the case, the claim
petition was not barred by limitation. He
further contended that the dismissal of the
claim petition on merits is erroneous on
various grounds as taken in the writ
petition, therefore, it is liable to be setaside. The contention of respondent- State
counsel in this writ petition is that the
petitioner-claimant could not have slept
over the matter for more than 8 years to
give notice under the proviso to Section
4(6) of the Act, 1976. He should have
given such notice immediately on expiry of
period of six months envisaged therein and
thereafter, should have filed the claim
petition within one year of expiry of the
period of one month which was not done,
therefore, the claim petition was barred by
limitation. A specific objection in this
regard was taken by the State in the written
statement in para 3, 4.14 and other
paragraphs of the written statement, but,
382 INDIAN LAW REPORTS ALLAHABAD SERIES
the same have not even been referred much
less considered by the Tribunal. He
submitted that without considering the
question of limitation the Tribunal, has
dismissed the claim petition on merits,
therefore, the State does not have any
grievance with regard to the merits of the
dismissal of the claim petition but has
raised the said plea of limitation in
response to the claim of the petitioner in
this writ petition which should also be
taken consideration.

4. Writ- A No. 15076 of 2021 (Writ
Petition No. 15076 (S/B) of 2021) has been
filed by the State of U.P. challenging the
judgment and order dated 03.04.2019
passed by the U.P. Public Services Tribunal
in Claim Petition No. 1714 of 2015. Claim
Petition no. 1714 of 2015 was filed by the
respondent-claimant in the year 2015
challenging an order of punishment dated
13.01.2006 with consequential reliefs. The
respondent-claimant it appears preferred an
Appeal against the said punishment order
on 10.04.2006, but, the same could not be
forwarded to the State Government at the
relevant time and could not be decided. On
26.08.2015 the respondent-claimant gave a
legal notice, referable, as claimed, to
proviso to Section 4(6) of the Act, 1976 and,
thereafter, as the Appeal was not decided
within one month he filed Claim Petition No.
1714 of 2015 challenging the punishment
order dated 13.01.2006. The claim petition
was admitted on 17.03.2016 subject to point
of limitation which was involved. It was
ultimately allowed on 03.04.2019. The main
ground of challenge by the State in this writ
petition is that claim petition was hopelessly
barred by limitation and a specific objection
was taken in this regard in the written
statement filed before the Tribunal, but,
ignoring the same and without deciding the
question of limitation, the merits of the claim
petition has been considered and the same has
been allowed which is against the provisions
of the U.P. Public Services (Tribunal) Act,
1976 (hereinafter referred to as 'the Act,
1976') and the law on the subject. It is alleged
by the State Counsel that the Tribunal while
deciding the claim petition has noticed the
objections on the point of limitation and the
provisions of the proviso to Section 4(6) of the
Act, 1976, however, it has opined that natural
justice requires a decision on merit. The
submission is that the Tribunal is not a Court of
extraordinary jurisdiction, but, a Tribunal of
limited
jurisdiction,
whose
powers
are
circumscribed by the Act, 1976. The Limitation
Act, 1963 (hereinafter to as 'the Act, 1963') is
applicable to its proceedings, therefore, the
Tribunal was obliged to consider and decide the
objection on the point of limitation which was
specifically taken in the written statement filed
before it. Even if, it had not been taken, the
Tribunal was obliged to do so in view of
Section 3 of the Act, 1963 and in not doing so,
the Tribunal has usurped the Jurisdiction which
it did not have, as, limitation involves a point of
jurisdiction and a such objection was taken at
the first opportunity. Nobody appeared to argue
on behalf of respondent in this writ petition.

5. We have also heard Shri Asit Kumar
Chaturvedi, learned Senior Advocate and
Shri Gaurav Mehrotra, whose assistance we
had requested considering the interpretation
of the provisions of U.P. Public Services
(Tribunal) Act, 1976 and the question of
limitation involved herein.

6. We had passed a detailed order on
01.10.2021 in Writ - A No. 15076 of 2021
staying the impugned judgment and also
noting the points for consideration.

7. Having heard learned counsel for
the parties and having perused the records
the first and foremost point is the period of
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
383
limitation prescribed for filing a reference
or claim petition before the Tribunal and
the
manner
of
its
determination/
calculation, in a case, where, though, an
appeal, revision etc. has been preferred by
the public servant but no order has been
passed thereon. This issue not only has far
reaching consequences in the two cases at
hand, but, even otherwise, has immense
importance
with
respect
to
other
proceedings before the Tribunal and
determination of point of limitation in the
context of reference/claim petitions being
filed before it.

8. The U.P. Pubic Services (Tribunal)
Act, 1976 was enacted to provide for the
constitution of Tribunals to adjudicate
dispute in respect of matters relate to
employment of all public servant of State.

9. Section 4 of the Act, 1976 reads as
under:-

"4.
Reference
of
claim
of
Tribunal.- (1) Subject to the other
provision of this Act, a person who is or
has been a public servant and is aggrieved
by an the order pertaining to a service
matter within the jurisdiction of the
Tribunal, may make a reference of claim to
the Tribunal for the redressal of his
grievance.

Explanation: For the purpose of
this sub-section "order" means an order or
omission
or
in-action
of
the
State
Government or a local authority or any
other corporation or company referred to
in clause (b) of section 2 or of an officer,
committee or other body or agency of the
State Government or such local authority
or Corporation or company:

Provided that no reference shall,
subject to the terms of any contract, be
made in respect of a claim arising out of
the transfer of a public servant;

Provided further that in the case
of the death of a public servant, his legal
representative and where there are two or
more such representative, all of them
jointly, may make a reference to the
'Tribunal
for
payment
of
salary'
allowances,
gratuity,
provident
fund,
pension and other pecuniary benefits
relating to service due to such public
servant.

(2) Every reference under subsection (1) shall be in such form and be a
accompanied by such documents or other
evidence and by such fee in respect of the
filling of such reference and by such other
fees for the service or execution of
processes, as may be prescribed.

(3) On receipt of a reference
under sub-section (1), the Tribunal shall, if
satisfied after such inquiry as it may deem
necessary that the reference is fit for
adjudication or trial by it, admit such
reference and where the Tribunal is not so
satisfied, it shall summarily reject the
reference after recording its reasons.

(4) Where a reference has been
admitted by the Tribunal under sub-section
(3), every proceeding under the relevant
service rules or regulation or any contract
as to redressal of grievances in relation to
the subject mater of such reference pending
immediately before such admission shall
abate, and save as otherwise directed by
the Tribunal, no appeal or representation
in relation to such matter shall thereafter
be
entertained
under
such
rules,
regulations or contract.

(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.
384 INDIAN LAW REPORTS ALLAHABAD SERIES

(6) For the purposes of subsection (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 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 purposes of subsection (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. Section 4-A deals with hearing of
reference by the Tribunal which is not very
relevant for our purpose.

11. Section 5 deals with powers and
procedure of the Tribunal. Some of its
provisions are relevant which are Section
5(1) and (2) which read as under:-

"(1) (a) The Tribunal shall not be
bound by the procedure laid down in the
code of civil procedure, 1908, or the rules
of evidence contained in the Indian
Evidence Act, 1872, but shall be guided by
the principles of natural justice, and
subject to the provisions of this section and
of any rules made under section 7, the
Tribunal shall have power to regulate its
own procedure (including the fixing of
places and times of its sittings and deciding
whether to sit in public or in private :

[Provided that where, in respect
of the subject matter of a reference, a
competent court has already passed a
decree or order or issued a writ or
direction, and such decree, order, writ or
direction has become final, the principal of
res judicial shall apply;

(b)
The
provisions
of
the
Limitation Act, 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
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
385
be made within the period prescribed by
that Act, or within one year next after the
commencement of the Uttar Pradesh Public
Services (Tribunals) (Amendment) Act,
1985, shall affect any reference made
before and pending at the commencement
of the said Act.

Provided further that nothing in
this clause as substituted by the Uttar
Pradesh
Public
Service
(Tribunals)
(Amendment) Act, 1985, Shall affect any
reference made before and pending at the
commencement of the said Act.

(2) The Tribunal shall decide
every
reference
expeditiously
and
ordinarily, every case shall be decided by it
on the basis of perusal of documents and
representations, and of [oral or written
argument]3, if any."

12. Section 4 deals with reference of a
claim to Tribunal. The reference is in
respect of an order pertaining to a service
matter within the jurisdiction of the
Tribunal, for the redressal of grievance by a
public servant. The word "order" used in
Section 4(1) has been explained in its
Explanation to mean - an order or omission
or inaction of the State Government or a
local authority etc.

13. Sub-section (5) of Section 4
provides that 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
grievance. The word "ordinarily" used therein
is indicative of the fact that in given
circumstances for valid and justifiable reason
a reference can be admitted, even if, the
remedies referred therein have not been
availed, which may be in cases requiring
immediate intervention, especially, at the
interim stage.

14. Sub-Section (6) of Section 4 says
that for the purpose of Sub-section (5) of
Section 4 a public servant shall be deemed
to have availed all the remedies available to
him if a final order has been made by the
State Government, an authority or officer
thereof or person competent to pass such
order under the rules etc. rejecting any
appeal preferred or representation made by
a public servant in connection with the
grievance.

15. Proviso to Sub-section 6 of
Section 4 is relevant for our purposes, as, it
deals with a situation where no final order
is made by the State Government etc.
within six months from the date on which
such appeal was preferred or representation
was made. In such a situation the public
servant may by written notice by registered
post require such competent authority to
pass the order and if the order is not passed
within one month of such notice, the public
servant shall be deemed to have availed all
the remedies available to him. In the main
provision contained in Sub-section (5) of
Section 4, the words "shall be deemed to
have availed all the remedies if a final
order has been made" have been used
whereas in the proviso to the word "may by
written notice by registered post" has been
used in the context of expiry of a period of
six months from the date of preferring such
appeal or representation where no orders
have been passed.

16. As is evident from Section
5(1)(b), the provisions of the Limitation
Act, 1963 are applicable mutatis mutandis
to a reference under Section 4 of the Act,
1976, as if, it was a suit filed in a Civil
Court, meaning thereby, the Limitation
Act, 1963 is applicable, as it applies to a
Suit. This of course is subject to Clause (i)
and (ii) and the proviso to Section 5(1)(b).
386 INDIAN LAW REPORTS ALLAHABAD SERIES
The period of limitation for filing such
reference is one year and as a period of
limitation has been prescribed for the said
purpose, therefore, Article 137 of the
Schedule to the Act, 1963, does not apply
for determining limitation in filing a claim
or reference. Clause (ii) of Section 5(1)(b)
excludes 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 memorial to
the Governor), in accordance with the rules
and orders regulating his conditions of
service, and ending on the date on which
knowledge of any such final order passed
on such representation, appeal, revision or
petition, as the case may be, was acquired
by the public servant, in computing the
period of limitation for filing reference,
which is one year.

17. A Co-ordinate Bench of this Court
has rendered a decision reported in 2006
(3) AWC 2750 in Writ Petition No. 942
(S/B) of 2002; Samarjeet Singh Vs. State
of U.P. and Ors., on 09.09.2005 which is
relevant. It was a case where an order of
punishment
was
passed
against
the
petitioner- Samarjeet Singh on 05.06.1987.
Against which he preferred a statutory
appeal on 30.06.1987. The appeal remained
pending despite several reminders being
made i.e. no final orders were passed. He
filed a claim petition in the year 2000
claiming it to be within limitation on the
ground that the appeal had not been
decided. The State took a defence that the
claim petition was barred by limitation
which was one year. The Tribunal vide
order dated 14.03.2002 dismissed the claim
petition at the admission stage as being
barred by limitation. The Tribunal noticed
the fact that though the appeal had been
preferred on 15.06.1987 reminders were
sent up to 21.08.2000 and legal notice of 30
days was given on 30.06.2000 i.e. notice
envisaged in the proviso to Section 4(6) of
the Act, 1976. In spite of it, no final orders
were passed. The Tribunal while rejecting
the claim petition was persuaded by the fact
that even if the petitioner had filed appeal
on 30.06.1987 the limitation expired after
12 months while the petitioner sent a
reminder dated 21.08.2000 which itself was
given after 13 years. It relied upon a
decision of a learned Single Judge of this
Court rendered in the case of Mahendra
Pratap Rai Vs. State of U.P. and Ors.
reported in (1986) 4 LCD 209 to dismiss
the claim petition as barred by limitation.

18. The Division of the High Court
did not find the reasoning given by the
Tribunal, sustainable. It opined that in the
case at hand, the appeal had been filed
within time, therefore, the dictum in
Mahendra Pratap Rai's case (supra) did
not apply. Moreover, according to it, for
computing the period of limitation for
filing a claim petition the Tribunal had to
see the date when the cause of action first
accrued and all such subsequent dates when
the cause of action again accrued. This was
simply for computing the period of
limitation i.e. whether the claim petition is
within time or not. Section 5 of the
Limitation
Act
prescribed
period
of
limitation and also the manner or procedure
when an employee could approach the
Tribunal without actually exhausting the
departmental remedy. The Division Bench
considered the provisions of Section 4(5)
and (6) as also its proviso and held that the
proviso to Sub-section 6 of Section 4 of the
Act, 1976 would not be relevant for
extending the period of limitation as the
proviso has been made for giving liberty to
an employee/public servant to approach the
Service Tribunal even without awaiting for
decision on the statutory appeal or
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
387
representation and thus, removes the bar as
imposed by Sub-section 5 of Section 4 of
the Act, 1976. The period of limitation
would start right from the date when the
cause of action first accrued that is the date
of order of dismissal and it would again
accrue
when
statutory
appeal
or
representation,
under
the
Rules,
are
decided. If the appeal or representation are
decided after 2, 3, 4 and 5 years etc. the
limitation for filing the claim petition shall
be computed from the date of passing of
the order in such appeal or representation.
It can not be said that if the appeal or
representation had been decided after one
year or more, the claim petition will stand
barred by limitation, merely because the
claimant did not avail the liberty of coming
to the Tribunal in terms of proviso to Subsection 4 of Section 6 of the Act, 1976.
According to the Co-ordinate Bench, Subsection 5 and proviso to Sub-section 6 of
Section 4 of the Act, 1976 did not control
the provisions of Section 5(1)(b)(i) and (ii)
of the Act, 1976.

19. Para 10 to 22 of the judgment
rendered in the case of Samarjeet Singh
Vs. State of U.P. and Ors. reported in 2006
(3) AWC 2750 read as under:-

"10. For computing the period of
limitation for filing a claim petition the
Tribunal has to see the date when the cause
of action first accrued and all such
subsequent dates when the cause of action
again accrued. This is simply for computing
the period of limitation, i.e., whether the
petition is within time or not. Section 5 of the
Act prescribes period of limitation and also
the manner or procedure when an employee
could approach the Tribunal without actually
exhausting the departmental remedy.

11. Sub-section (5) of Section 4 of
the Act provides that 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 grievance.
Subsection (6) of Section 4 of the Act says
that for the purposes 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.

12. Proviso to Sub-section (6) of
Section 4 of the Act says 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 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.

13. Aforesaid Sub-section (5) of
Section 4 of the Act requires exhaustion of
all departmental remedies available to
public servant before approaching the
Tribunal and for giving effect to the said
provision the Tribunal is supposed to
examine,
for
entertaining
the
claim
petition, whether the employee has availed
of or not all available departmental
remedies. Even then discretion lies with the
Tribunal to entertain the petition though
public servant might have not exhausted
departmental remedies. It is clear that Sub-
388 INDIAN LAW REPORTS ALLAHABAD SERIES
section (5) of Section 4 of the Act puts
restriction upon the Tribunal by saying that
it 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.

14. An employee cannot be
prohibited
from
approaching
the
Court/Tribunal for any indefinite period
because of the administrative or otherwise
inaction on the part of authority/officer
concerned in deciding the statutory appeal
or revision, and, therefore, proviso to Subsection (6) of Section 4 was added. Thus,
proviso to Subsection (6) of Section 4 of
the Act allows to entertain the claim
petition, 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, where the public
servant, by a written notice by registered
post, requires such competent authority to
pass the order and if the order is not
passed within one month of the service of
such notice also by the appointing
authority, the employee gets a liberty to
approach the Tribunal, with the legal
presumption that he had' availed of all
departmental
remedies
in
terms
of
Subsection (5) of Section 4 of the Act,
and, therefore, his claim petition can be
entertained.

15. This proviso to Sub-section
(6) of Section 4 would not be relevant for
extending the period of limitation as the
proviso has been made for giving liberty to
an employee/public servant to approach
the service Tribunal even without awaiting
for a decision on the statutory appeal or
representation and thus it removes the bar
as imposed by Sub-section (5) of Section 4
of the Act.

16. The period of limitation
would start right from the date when the
cause of action first accrued, i.e., the date
of order of dismissal and it would again
accrue
when
statutory
appeal
or
representation, under the rules, are
decided. If the appeal or representation
are decided after two, three, four and five
years, etc. the limitation for filing the
claim petition shall be computed from the
date of passing of the order in such appeal
or representation. It cannot be said that if
the appeal or revision has been decided
after one year or more, the claim petition
will stand barred by limitation, merely
because the claimant did not avail the
liberty of coming to the Tribunal in terms
of proviso to Sub-section (4) of Section 6.

17. Sub-section (5) and proviso
to Sub-section (6) of Section 4 of the Act
do not control the provisions of Section
5(1)(b) (i) and (ii) of the Act. Sub-clause
(b)(i) and (ii) of Section 5(1) of the Act
says that the provisions of the Limitation
Act, 1963 shall mutatis mutandis apply to
reference under Section 4 of the Act 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 and (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
8 All. State of U.P. & Anr. Vs. Birendra Bahadur Singh
389
petition, as the case may be shall be
excluded.

18.
The
aforesaid
provision
provides 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 of the Act may
be made within the period prescribed by
that Act, or within one year next after the
commencement of the U.P. Public Services
(Tribunals)
(Amendment)
Act,
1985
whichever period expires earlier. The
aforesaid provisions make it clear that
while computing the period of limitation,
the period of limitation starts from the
date on which the public servant makes a
representation or prefers an appeal,
revision or any other petition and comes to
an end when he acquires knowledge of the
final order passed. All such period thus
has to be excluded while computing
limitation. In case final order is passed
after one year or two years or so on and so
forth, the limitation would be counted
from the date of passing of the original
order and by excluding the entire period
commencing from the date of making the
appeal or representation, if provided
under rules, and the date when the final
orders
passed
on
such
appeal
or
representation come within his knowledge.

19. In the instant case, the
Tribunal was swayed by the provisions of
Sub-section (5) of Section 4 and proviso to
Sub-section (6) of Section 4 where the right
to approach the Tribunal has been given
after availing all the remedies available to
a public servant under the relevant service
rules and the circumstances and the
procedure when a public servant can
approach
the
Tribunal,
during
the
pendency of the appeal or revision.

20. In the absence of a final
order having been passed by the appellate
authority it cannot be said that the claim
petition would be barred by limitation if
the claimant does not avail the liberty
given in the provision aforesaid. If
statutory appeals or representations are
kept pending for years together and no
order is passed within six months from the
date on which such appeal was preferred
or representation was made, the Tribunal
ought not to reject the claim petition, on
the ground that the public servant should
have given a written notice by registered
post, requiring such competent authority
to pass the order within 30 days, and thus
has not filed the claim petition within the
limitation prescribed.

21. In a case wherein the appeal
or revision remains unattended for any
period beyond six months or one year, the
only requirement could be that such a
claimant gives the required notice as given
in proviso to Sub-section (6) of Section 4
and thereafter to approach the Tribunal
whether thereafter, the appeal or revision
is decided or not, but this requirement of
giving notice in a matter which has been
kept pending for years together by the
appellate authority, if is not complied with
by the complainant, the Tribunal may not
dismiss the claim petition summarily but
may give an opportunity to the claimant to
give a notice as required within a given
time and defer the hearing for such period
or the Tribunal, or as per the facts of the
case, may entertain the petition even
without any such notice being given by the
public servant as the rule of exhaustion of
departmental
remedies
is
itself
discretionary in terms of subsection (5) of
Section 4, wherein it has been said that
'ordinarily'
the
Tribunal
would
not
entertain the petition, unless departmental
remedy stands exhausted.

22. Failure on the part of the
appellate authority or the authority who is
to
decide
the
representation,
in
390 INDIAN LAW REPORTS ALLAHABAD SERIES
discharging
their
statutory
legal
obligations cannot defeat the right of a
claimant to vindicate his rights by
approaching the Tribunal nor can be
frustrated."

20. Of course it was a case where a
final order had been passed in the appeal
after several years, therefore, giving a
second cause of action to the public servant
to approach the Court and the case at hand
and the issue before us is slightly different
on facts in the sense that no final orders
have been passed even after 8 or 9 years,
but, the reasoning given by the Co-ordinate
Bench in Samarjeet singh's case (supra) is
relevant and applies to the case at hand
also.

21. We agree with the enunciation of
law by a Co-ordinate Bench in the case of
Samarjeet Singh (supra) in the context of
Section 5(1)(b) and the proviso to Section
4(6) of the Act, 1976 where it has been
held that the proviso to Section 4(6) of the
Act, 1976 does not qualify the prescription
of limitation in Section 5(1)(b) clause (i)
and (ii) thereof.

22. The provision of limitation for
filing a reference is contained in Section
5(1)(b) and not Section 4(6). Section
5(1)(b) clause (i) and (ii) provide a
limitation for filing a reference in a case
where a final order has been passed in an
appeal,
revision
or
representation
prescribed in the relevant service rules i.e.
the remedies prescribed under the relevant
services rules. No limitation has been
prescribed for a case where, though, the
remedy has been availed in accordance
with law/Rules no final orders have been
passed. The language of Clause (ii) of
Section 5(1)(b) itself suggests that as long
as the appeal or representation etc., which
has been filed as per Rules/orders, remains
pending,
limitation
does
not
start/commence nor does it expire. It
starts/commences when an order is passed
on such appeal etc. and will expire on
completion of one year from the date of
knowledge to the public servant regarding
such order.

23. As regards the proviso to Section
4(6) of the Act, 1976 the said proviso is
relevant only in the context of Section 4(5)
which provides that ordinarily the tribunal
shall not entertain a reference unless all the
remedies prescribed in the service rules
have been availed, therefore, envisaging a
situation, where, though, the remedy has
been availed no final order has been
passed, the proviso to Section 4(6) has been
added, according to which, in the event no
final order has been passed on such appeal
or representation etc., a discretion/liberty
has been given to the public servant to
approach the tribunal after giving one
month notice in writing by registered post.
Such notice has to be after expiry of the
period of six months from the date of filing
such appeal, revision or representation as
may be prescribed in the service rules. The
use of the word 'may' in the proviso to Subsection (5) of Section 4, as distinct from the
use of the word 'shall' in Sub-section (6) of
Section 4 of the Act, 1976, makes it clear
that the Legislature's intention is to confer a
discretion upon the public servant under the
proviso, if he so chooses, to approach the
Tribunal on expiry of a period of six
months after giving one month notice, in
the event, even thereafter, no final order is
passed, but, this proviso can not be
understood and interpreted to qualify the
provisions contained in Section 5 (1)(b)
Clause (i) and (ii), which do not prescribe
any such limitation for filing a reference in
a case where no final orders are passed in
8 All. State of U.P. & Anr. Vs.