A. P. Mishra, J. - (1.) Heared learned counsel for the parties. The petitioner by means of this writ petition sought for quashing of the order, dated 28th November, 1980 passed by the U.P. Public Services Tribunal by virtue of which the petition of the petitioner for direction for quashing the dismissal order was dismissed.
(2.) According to the petitioner he was appointed as Tax Clerk in the Notified Area Nataur on 1st May, 1965 and was promoted as Tax Inspector of 1st June, 1969. The Notified Area was thereafter raised to the status of Nagar Palika and the petitioner was confirmed as Tax Inspector with effect from April 1,1971. One of the allegations of respondent No. 3 is that he bore grudge as against the petitioner on account of his not accepting the request of appointment of his son as Toll Peon. This led into filing a suit against the petitioner which was dismissed and then he also made certain false allegations. In these paragraphs it is stated that respondent No. 3 illegally suspended him on 1st June, 1973. The petitioner being aggrieved as against the said suspension order first filed a suit in the court of Munsif Nagina restraining the president, Nagar Palika from taking charge from the post of Tax Inspector and also from interfering with the work of the petitioner on the said post. It is further alleged that the said suspension order was revoked and a fresh suspension order, dated 30th June, 1973 was passed. Thereafter in the said suit an amendment application was moved by the petitioner and thereafter and interim injunction staying the suspension order of the petitioner was granted by the learned Musif Nagina. It is further alleged that in spite of the said injunction order, the Board did not pay the salary of the petitioner, on fact, on 23rd July, 1977, the then President Nagar Palika, respondent No. 3 passed another suspension order on the basis of fresh charges which led into filing of another suit (Suit No. 507 of 1977). However, after commencement of U.P. public Services Tribunal Act, 1976 the aforesaid suits were transferred to the said Tribunal under Section 6 of the aforesaid Act. It is further urged that during pendency of the said matter before the Tribunal on 24th May, 1978 an application was made on behalf of respondent No. 3 stating that the petitioner had been dismissed from service since 21st January, 1978. He also filed order of dismissal stating that now the suspension order had been merged into dismissal order. Immediately thereafter the petitioner filed an affidavit before the Tribunal and also moved an application for amendment of the plaint challenging the said order of dismissal as illegal on various grounds. However, the Tribunal by means of the impugned order, dated. 28th November, 1980 dismissed the claim petition so far as the dismissal of the petitioner was concerned but held that the suspension order, dated 1st June, 1973 and 30th June, 1973, were illegal.
(3.) Learned counsel for the petitioner urged that the order passed by the Tribunal that his claim petition for relief for holding the dismissal order to be illegal, cannot be entertained since he has not exhausted his departmental remedy permissible to him under law in view of the 2nd proviso of Section 4 of the U.P. Public Services Tribunal Act, 1976 in erroneous. On the other hand, learned counsel for the respondents very vehemently urged that the provisions are very clear and no Government servant should be permitted to file claim petition without exhausting the departmental remedy.;