- (1.) D. S. Sinha, J. This Full Bench has been constituted not to resolve any con flict of the decisions, point or points of fact or law. Indeed, the Full Bench is called upon to decide on merits the writ petition of Km. Mamta Jauhari, an erstwhile tem porary employee of the State of Uttar Pradesh, serving as District Programme Officer (Women), wherein legality of the order dated 5th December, 1994, ter minating her services, is the subject-mat ter of challenge.
(2.) WRIT petition was presented before the concerned Division Bench on 28th March, 1995. Under the direction of the Bench requisite affidavits were filed by the parties. The petition was heard by the Bench on 3rd July, 1996 and the judgment was reserved. On 4th November, 1996 two separate well considered judgments and final orders of the learned Judges con stituting the Bench were pronounced, signed and sealed in the open court. One final order reads thus: "in the result this writ petition succeeds and is allowed. The impugned order dated 5-12-1994 as published on 6-1-1995 are quashed. The respondents are directed to complete the dis ciplinary proceedings against the petitioner in accordance with law as expeditiously as possibly preferably within six months from the date of presentation of certified copy of this order. Sd/-lllegible 4-11-1996. " The other final order reads thus: "after considering the submission of learned Counsel for the petitioner Shri Ashok Khare we are of the considered view that the termination has been made in accordance with the rules and it is not stigmatory and her services have been terminated in accordance with the Rules. We, therefore, for the reasons recorded above dismiss the writ petition. 4-11-1996 Sd. /- lllegible. " Thereafter, the learned Judges passed the following order: "in view of difference of opinion the papers be placed before the Hon'ble Chief Jus tice preferably within 24 hours for sanding the matter for opinion to a third Judge. Sd. Mll egible 4-11-1996" Then, the Hon'ble the Chief Justice passed an order dated 19-11-1996 refer ring the matter to a third Judge. The matter came up before third Judge on various dates between 28th February, 1997 and 2nd May, 1997 and had to be adjourned for various reasons, recorded on the order-sheet. Eventually, ' on 14th May, 1997 after hearing the learned Counsel appearing for the parties, at length and in detail, following order was passed: "heard Sri Ashok Khare and Sri S. K. Srivastava, learned Counsel appearing for the parties, at length and in detail. It appears that this petition was heard by a Division Bench on 4th November, 1996. The Hon'ble Judges constituting the Bench delivered two different judgments. One propos ing to dismiss the writ petition and the other proposing to allow the writ petition. In view of the dissonance the Hon'ble Judges passed an order directing the papers of the case to be placed before the Hon'ble The Chief Justice for sending the matter for opinion to a third Judge. On 19th November, 1996 the Hon'ble The Chief Justice passed the following order: Referred to Hon'ble D. S. Sinha, J. Sd. /-D. RM. 19-11-1996" Learned Counsel for the parties con cede that instant reference is under Rule 3 of Chapter VIII of the Rules of Court, 1952 which reads thus: "procedure when Judges are divided in opinion.-When a case (to which the provisions of the Code of Criminal Procedure do not apply), is heard by a Division Court composed of two or more Judges and the Judges are divided in opinion as to the decision to be given oh any point such point shall be decided according to the opinion of the majority, if there shall be a majority. Should the Judges be equally divided they may state the point upon which they differ and each Judge shall record his opinion thereon. The case shall then be heard upon that point by one or more of the other Judges as may be nominated by the Chief Justice and the point decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. " (Under lined Court) While dealing with the case of Mis. Shriram Industrial Enterprises Ltd. v. The Union of India and others, 1996 All. LJ 468, after considering the provisions of Rule 3 of Chapter VIII, extracted above, a Full Bench of this Court observed thus: "the language of above quoted Rule is plain and admits of no ambiguity. If the Judges of Division Court which is composed of two Judges are equally divided in opinion, they may state the point upon which they differ and then the case shall be heard upon that point alone by one or more of the other Judges as may be nominated by the Chief Justice. The point about which a reference has been made shall then be decided according to the opinions of majority of the Judges who have heard the case including those of the Division Court which heard it initially. " (Emphasis supplied) The Full Bench further observed as follows: "there can be no doubt that the proper course for the Judges who have dissented in their respective opinions while hearing a writ petition is not to pass final order either allowing or dismiss ing the same but to state their point of difference after expressing their opinions. However, it will still be open to them to State the point upon which they have differed even if they have passed final orders. " (Emphasis added) Indisputably, in the instant case the Hon'ble Judges have neither stated the point or points upon which their Lordships differed nor have their Lordships recorded their any opinion thereon. In view of the law laid down by the Full Bench in the case of Mis. Shriram Industrial Enterprises Ltd. v. The Union of India and others (supra), it appears appropriate that the matter may be referred to the concerned Bench for formulating the point or points upon which there is difference and for recording opinion thereon. Thus, it is directed that the record of the case be placed before the Hon'ble the Chief Justice for appropriate order/orders. Sd. /-D. S. Sinha 14-5-1997. "
(3.) THEIR Lordships constituting the Bench did not choose to state the point or points upon which they differed and la mented on the inability of the single judge in locating the "point" of difference in the two judgments as is apparent from their order dated 19th November, 1997 which reads thus: "the two judgments passed by this Court are salf-explanatory. Reasons exist to sustain the order of either of us and the conclusions reached in the respective judgments. That is why the mat ter had to go to third Judge and the Hon'ble the Chief Justice was graciously pleased to send it to the Hon'ble third Judge. It is a different matter that the learned Single Judge has been able to locate the point of difference in the two judg ments. None-the-less the questions raised in the writ petitions noted in the respective judgments are of vital importance and may have for reach ing consequences. Moreover, having once pronounced the judgment it does not appear in the fitness to the things to frame points of dif ference or interpret that judgment judiciously all over again to facilitate the hearing by a third Judge. Under the circumstances, it is respectful ly suggested that the entire writ petition may go before a Full Bench as early as possible. The papers be laid before the Hon'ble the Chief Justice to sand the writ petition before a Full Bench. It is respectfully suggested that Full Bench may be nominated at the earliest possible convenience by the Hon'ble the Chief Justice because only in the process of transmission of this record from this Court to single Judge and from Single Judge to this Court, it has consumed more than a year. Sd. /-Illegible 19-11-1997 Sd. /-Illegible. " (Emphasis supplied) Eventually, the Hon'ble The Chief Justice constituted this Full Bench vide order dated 28th January, 1998.;