ZILA PARISHAD, ALLAHABAD Vs. SADANAND MISRA

JUDGEMENT

(1.) The opposite-party Sadanand Misra was working as sectional head clerk in the office of the Zila Parishad Allahabad, the applicant, on 1st Dec., 1964. By an order passed by the President of the Zila Parishad on that date, the opposite-party was suspended pending inquiry against him of certain charges. Ultimately he was dismissed on 22nd March, 1970. Aggrieved by the order of dismissal, the opposite-party made a claim before the U.P. Public Services Tribunal in Dec., 1977. His claim was contested by the Zila Parishad. The Tribunal, however, by its award, dated 15th Dec., 1979, quashed the order of dismissal of the opposite-party and held that he will be deemed to have continued in service and would be entitled to all benefits of continuous service. The award of the Tribunal having not been implemented, the opposite-party obtained a certificate for the enforcement of the award under Sec. 5 (7) of the U.P. Public Services (Tribunal) Act, 1976 (hereinafter referred to as U.P. Act 17 of 1976). On the basis of that certificate the opposite-party made an application for execution with the prayer for his reinstatement and for recovery of Rs. 85,018.63P., as arrears of pay up to 31st May, 1981. The Zila Parishad, however, reinstated the opposite-party on 3rd June, 1981 on the post of office superintendent. The relief for reinstatement, therefore, became infructuous. The claim of the opposite-party for arrears of pay was contested by the Zila Parishad. The objection of the Zila Parishad was however, overruled by the First Additional District Judge, Allahabad by his order dated 10th Sept., 1981. By that order the execution application was allowed and the Zila Parishad was given two months time to pay Rs. 85,348,76 P., as arrears of pay to the opposite-party and to deposit in his provident fund account a sum of Rs. 9,431.74. It is this order against which the present Civil Revision has been filed by the Zila Parishad.

(2.) Three points were raised by counsel for the applicant: (1) The award given by the Tribunal was in the nature of a declaratory decree and was incapable of execution. (2) The opposite-party was entitled to the arrears of pay calculated on the basis that he was an accounts clerk only and not on the basis that he was at any time.entitled to the post of sectional head clerk of office superintendent. (3) The claim for arrears of pay for a period more than three years before was barred by time.

(3.) In regard to the first point it was urged by counsel for the opposite-party that this point had not been raised by the Zila Parishad before the court below and it was not entitled to raise it for the first time is revision In my opinion, apart from the objection raised by counsel for the opposite-party the application for execution is not liable to be dismissed on the basis of this plea. It is true that the specific amount payable to the opposite-party as arrears of pay consequent upon the order of dismissal being passed, has not been stated in the award but keeping in view the language of the award, there seems to be no doubt that a decree has been passed for arrears of pay also. It was urged by counsel for the applicant that the award only granted a declaration in favour of the opposite-party as a result of which he became entitled to the arrears of pay. According to counsel for the applicant, the opposite-party could not claim the amount of arrears of pay by executing such an award but his only remedy was to file a suit for recovery of arrears of pay on the basis of the award. So far as this submission is concerned suffice it is to point out that in view of Sec. 6 of U.P. Act 17 of 1976 the remedy of a suit is barred. At best, therefore, what can be said on behalf of the applicant is that on the basis of the award in question the opposite-party should make another claim before the same Tribunal with a prayer to pass another award. In my opinion, in such a matter, particularly when technical rules about pleadings and the provisions of Order 20, Code of Civil Procedure in regard to the mode of writing a judgment of the provisions in regard to preparation of decree have not been made applicable to the Tribunal constituted under U.P. Act 17 of 1976, it is not the form but the substance which matters. In the instant case, as seen above, the opposite-party was suspended about 18 years back on 1st Dec., 1964. Order of dismissal was also passed on 22nd March, 1970 i.e. more than 12 years back from todays date. In this background accepting the plea raised by counsel for the applicant that the opposite-party should make another claim before the Tribunal would be only causing further harassment to him with no corresponding benefit to the Zila Parishad excepted being successful in delaying payment of the just dues of the opposite-party for a further indefinite period. Such a course I am not inclined to take in a Civil revision under Sec. 115, C.P.C., the grant of relief under which provision is discretionary,