- (1.) D. K. Seth, J. Shri S. N. Srivastava, learned Counsel for the petitioner ad dressed a very interesting question which might he formulated as follows:- "according to him appeal provided under Rule 56 can be withheld under Rule 64, if it is not preferred within six months but 11 it is not withheld and is forwarded to the appellate authority, despite the appeal having preferred beyond six months it is not open to the appellate authority to dismiss the appeal on the ground of its being preferred beyond six months. "
(2.) LEARNED Standing Counsel, on the other hand, contends that there cannot he an indefinite period for preferring an ap peal. It has to be preferred within a reasonable period which has been prescribed as six months. Unless sufficient cause has been shown for which the appeal could not be filed within six months, it is always open to the appellate authority to dismiss the same even it is not withheld but the question of not withholding of the appeal does not take away of the jurisdic tion of the appellate authority for deciding all the points that might be raised. In order to understand the respec tive contentions, it is necessary to look into the facts of this case in brief which are admitted. The petitioner having been dis missed by an order dated 9-2-1978 on the ground that he was absconding without any sanction of leave or authority over a long period of time, alleged to have preferred an appeal dated 29-2-1978 sent under certificate of posting. The said ap peal was received on 3-10-1980 in the Department. In 1978 the month of February consisted of 28 days. The certifi cate of posting was disbelieved by the ap pellate authority and held that the appeal alleged to have been preferred on 3-10-1980. Therefore, it was dismissed on the ground of its being presented beyond six months. The order of the appellate authority "'as on 31-1-1985 being An nexure-7 to the writ petition. The said order when challenged in claim petition No. 200/ (F)/iii/1985 (Annexure-9 to the writ petition), the U. P. Public Services Tribunal No. Ill, Luck-iow vide its judg ment and order dated 29-10- 1985 had af firmed the order of the appellate authority and dismissed the claim petition as time barred. In support of his contention, Mr. Srivastava, relied on the order dated 29-7-1982, being Annexure-6 to the writ peti tion, by which the petitioner's appeal was sought to be forwarded to the appellate authority. Learned Standing Counsel points out from the said order that it had dealt with a representation and not an appeal, therefore, it cannot be said that the appeal was forwarded as contended by Mr. Srivastava. The said contention of Mr. Parihar, learned Standing Counsel has been explained by Mr. Srivastava relying on the proviso to Rule 56 of the Civil Service (Classification, Control and Ap peals) Rules, 1930 as applicable in U. P. (hereinafter called as the Rules ). Accord ing to him, Rule 56 postulates appeal only against three punishments prescribed therein inflicted under Rule 49 and no appeal lies against punishments other than specified in Rule 56. Therefore, the punishment being one of said three categories provided in Rule 56, no repre sentation lies and it is only an appeal that lies. In the order contained in Annexure-6, the appeal has been referred to as repre sentation. The said contention of Mr. Srivastava stands supported by reason of order contained in Annexure-7 which refers to the same as an appeal and it is not contended either by the learned Standing Counsel nor it does appear from An- nexure-7 that any other representation other than the appeal has ever been preferred by the petitioner.
(3.) RULE 56 provides as follows:- "56. (1) Every person included in one of classes (1) to (5) specified in RULE 14, shall he entitled to appeal, as hereinafter provided, from an order passed by a competent authority:- (a) imposing upon him any of the follow ing penalties specified in RULE 49: (i) Reduction to lower post or time-scale, to a lower stage in a time-scale; (ii) Removal from the service of the State which does not disqualify from future employ ment and (iii) Dismissal from service of the State which ordinarily disqualifies from future employment: Provided that in the case of the other penalties specified in RULE 49, the absence of right of appeal shall not debar the punished Government servant from making a repre sentation against the imposition of any one of these penalties to the authority if any, next higher to the punished authority: Provided further that against a penalty of censure imposed by the Governor, the punished Government servant shall be entitled to make a representation to the Governor himself: Provided also that representations made by punished Government servants prior to the commencement of these rules, may also to entertained by the Governor. Note.-Such representation will not or dinarily be entertained unless it is preferred within six months from the date on which the Government servant concerned was informed of the order of punishment. (b) discharging him in accordance with the terms of his contract if- (i) he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract con tinuous service for a period exceeding five years at the time when his services are terminated; or (ii) he comes under the provisions of RULEs 58 (3); (c) reducing or withholding the maximum pension including an additional pension, admis sible to him under the RULEs governing pensions. (2) Nothing in sub-rule (1) shall be con strued to confer on any person a right of appeal against an order passed by the Governor. " A plain reading of the said rule indicate that the appeal can be preferred against the three penalties mentioned in Clause (a) of Rule 56 (1 ). In case of penal ties specified in Rule 49 other than those mentioned in Rule 56 (1) (a), a repre sentation can be made despite of absence of right of appeal. The expression "absence of right of appeal" has been expressed, as "absence or right of appeal". It appears that the word 'or' is a misprint. Inasmuch as the insertion of word 'or' does not make out any sense. If the word 'or' read as 'of then only it gives out a sense. Thus it shows that the provision deals with the cases of other penalties specified in Rule 49, even in the absence of right of appeal, can be represented against. Thus it is abundantly clear that the representation is provided for penalties other than those provided in Rule 56 (1) (a ). It was never the intention of the legislature to provide both the remedies of appeal and representation together. On the other hand it had provided appeal in respect of three penal ties while representation in respect of the rest. However, the note appended to Rules 56 (1) (a) governs the representation only because of the clear expression used in the said note read with the existence of Rule 66 (2), 67 (2), 68 and 69 respectively. Therefore, in order to understand the question of limitation we would be refer ring to other Rules at appropriate stage. The question of limitation with regard to the appeal is therefore not governed by the note appended to Rule 56.;