Chandrakanti Singh & Ors. vs State of U.P. & Ors.

Pankaj Mithal, J.—Writ petitioners appellants, aggrieved by order dated 18.11.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 58870 of 2009, have preferred this appeal under Rule 5 Chapter VIII of the Allahabad High Court Rules, 1952.

Writ petitioners appellants, hereinafter referred to as the ''petitioners'', filed the writ application, inter alia, praying for payment of honorarium for the period 21.02.2004 to 28.07.2008. According to them, they were serving as Aganbari Karyakartis and their services were illegally terminated by order dated 21.02.2004. Petitioners challenged the said order in Civil Misc. Writ Petition No. 15985 of 2004, which was dismissed in limine by order dated 22.04.2004. Petitioners, aggrieved by the same, preferred Special Appeal No. 435 of 2005 (Smt. Chandrakanti Singh & Ors. Vs. State of U.P. & Ors.). A Division Bench of this Court, by order dated 16.05.2005, allowed the said special appeal and quashed the order of termination. A Review application was filed by the State of U.P. and its functionaries, which was registered as Review Application No. 88486 of 2006. This Court, by order dated 25.04.2008, allowed the review application and substituted the judgment dated 16.05.2005 by the following order:

"The impugned order passed by the Bal Vikas Pariyojna Adhikari dated 21.02.2004 appears to have been issued without providing any notice or opportunity to the appellants. It has been time and again held that while dispensing such services, the authority is required to adopt a fair procedure and we are of the opinion that an opportunity of hearing ought to have been given to the appellants before dispensing with their services. Accordingly, the order dated 21.02.2004 passed by the Bal Vikas Pariyojana Adhikari cannot be sustained in the eyes of law being in violation of principles of natural justice. It is hereby quashed. The judgment and order of the learned Single judge dated 22.04.2004 is set aside leaving it open to the authorities concerned to initiate an enquiry and pass appropriate orders after giving opportunity of hearing to the appellants in accordance with law. The appeal is accordingly allowed."

It is the case of the petitioners that in the light of earlier order dated 16.05.2005 passed in Special Appeal No. 435 of 2005, they submitted their joining on 01.07.2005. When nothing was done, representations were filed and ultimately a proceeding for contempt was resorted. Respondents on the plea that the petitioners had rejoined their services on 29.07.2008 started paying honorarium to the petitioners from the said date but the honorarium for the period 21.02.2004 to 28.07.2008 was not paid. Aggrieved by the same, petitioners preferred the writ petition, which has been dismissed by the learned Single Judge by the impugned order on his finding that in view of the provisions of Order II Rule 2 of the Civil Procedure Code (hereinafter referred to as the ''CPC''), the writ petition was not maintainable.

The relief of the petitioners can be split in two parts : one for the period 21.02.2004 to 30.06.2005 and other from the period 01.07.2005 to 28.07.2008.

Mrs. Pratima Singh, appearing on behalf of the petitioners, submits that the provisions of CPC do not apply to writ petition and, hence, the learned Single Judge erred in relying on the provisions of Order II Rule 2 of the CPC. In this connection, our attention has been drawn to Section 141 of the CPC.

There is no difficulty in accepting the broad submission of Mrs. Singh that the CPC per se does not apply in a proceeding under Article 226 of the Constitution of India, but its principles do apply in such proceeding. In that view of the matter, we hold that the learned Single Judge did not err in relying on the principles enshrined under Order II Rule 2 of the CPC.

Mrs. Singh, then, contends that when the order of termination was set aside by the Court, the petitioners were entitled for back wages. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Indian Railway Construction Co. Ltd. Vs. Ajay Kumar, (2003) 2 UPLBEC 1206.

We do not find any substance in this submission of Mrs. Singh also. This plea was available to the petitioners, when they had filed the earlier writ petition. They had filed the writ petition challenging the order of termination of their services and the prayer for grant of consequential relief, i.e. back wages ought to have been made in the said writ petition and they having not done so, the relief for back wages for the period they admittedly remained out of employment, i.e. from 21.02.2004 to 30.06.2005, was not fit to be gone into in the subsequent writ petition.

Now, coming to the relief for grant of back wages for the period 01.07.2005 to 28.07.2008, according to the petitioners, they joined their services on 01.07.2005 in the light of order dated 16.05.2005 passed in Special Appeal No. 435 of 2005. In case, they have joined on 01.07.2005, they shall be entitled for honorarium from 01.07.2005 itself. Whether they have joined on the said date is a question of fact which, at the first instance, requires to be decided by respondent no.4. Petitioners shall lay their claim before respondent no.4 for payment of honorarium from 01.07.2005, who shall consider the same in accordance with law and in case it is found that they have joined on 01.07.2005, honorarium from the said date shall be paid to the petitioners.

Aforesaid exercise shall be done within a period of three months from the date of receipt/communication of a copy of this order.

In the result, the appeal is partly allowed and the order of the learned Single Judge is modified to the extent indicated above.