- (1.) The special appeal arises from a judgment and order of the learned Single Judge dated 22 May 2015 by which an earlier order dated 4 May 2015 was recalled.
(2.) The first respondent, who was the original petitioner, was removed from service after a disciplinary enquiry by an order dated 20 November 1997. A direction for the recovery of an amount of Rs 21,05,626.93 from the first respondent was also issued. Against the said order, the first respondent preferred a writ petition1, wherein an interim order was passed on 8 January 1998 staying the operation of the order dated 20 November 1997. In compliance of the order dated 8 January 1998, the petitioner was reinstated in service with continuity. However, the Joint Cane Commissioner, Saharanpur was appointed as Inquiry Officer to reexamine the matter again. The Inquiry Officer submitted his inquiry report on 16 August 2000. A show cause notice was issued to the first respondent on 13 September 2000 along with a copy of the enquiry report. The first respondent was directed to submit his explanation within fifteen days. From the record, it appears that the first respondent neither submitted any reply to show cause notice nor did he submit his explanation. On the basis of the material on record, the first respondent was found to be guilty of embezzlement of an amount of Rs 21,05,626.93. At this stage, it is necessary to mention that the first respondent had retired from service on 30 September 2000. Hence, approval was sought from the Governor for the recovery of the said amount from his retiral dues and for deduction of an amount equivalent to 50 percent of his pension. After the approval of the Governor on 18 November 2003, an order dated 25 May 2004/2 June 2004 was passed by the Cane Commissioner, Lucknow for the recovery of an amount of Rs 21,05,626.93 from the retiral dues, i e gratuity and encashment and for the deduction of 50 percent of the amount of his pension. The first respondent filed a writ petition2 in order to challenge the order dated 25 May 2004/2 June 2004. The writ petition was disposed of by the learned Single Judge on 4 May 2015 on the ground that an alternate remedy of a departmental appeal was available. The judgment dated 4 May 2015 reads as follows: "Heard learned counsel for the petitioner and Shri Ravindra Singh, learned counsel for the contesting respondents. Shri Ravindra Singh, learned counsel for the respondents has raised a preliminary objection regarding maintainability of the present writ petition on the ground that the petitioner has got alternative efficacious remedy of departmental appeal before the next higher authority, and thereafter revision before the State Government under Rule 11 and 13 of the U.P. Government Servants (Discipline and Appeal) Rules, 1999. He has further remedy available before the U.P. Public Service Tribunal. He has relied upon a Division Bench judgment of this Court in Manvendra Misra vs. Gorakhpur University LAWS (All)-2000-1-141 in support of his submission. The present writ petition is pending since the year 2005. In view of the above, without expressing any opinion on the merits of the issue and considering the facts and circumstances of the case, this writ petition is disposed of finally with a direction that if the petitioner files an appeal against the impugned order within 15 days' from today, the Principle Secretary, Cane Development and Sugar Industry, U.P. Lucknow will decide the appeal on the merits, ignoring the delay in filing the appeal within next two months. Order Date :- 4.5.2015" A recall application3 was filed by the first respondent. By an order dated 22 May 2015, the learned Single Judge allowed the recall application observing that an interim order was passed on 16 September 2014 and that the disposal of the writ petition on the ground of alternate remedy, nearly ten years after it was filed, would cause irreparable loss and injury to the first respondent who is aged about 75 years. Holding that sufficient cause for recalling the order was shown, the earlier order was recalled.
(3.) The submission which has been urged on behalf of the appellant is that once the learned Single Judge by an order dated 4 May 2015 dismissed the writ petition upholding the preliminary objection to its maintainability on the ground of availability of an alternative remedy, a recall application was not maintainable. If the first respondent was aggrieved by the order dated 4 May 2015, he could have filed either an appeal or applied for a review of the order by moving an application under Order 47 of the Code of Civil Procedure, 1908. On the other hand, the learned counsel appearing on behalf of the first respondent has supported the reasoning of the learned Single Judge and submitted that the dismissal of the writ petition on 4 May 2015 was not on merits and, hence, a recall application was maintainable.;