Ram Tlrth Sharma vs Dy.Registrar,Co-operative Societies,U.P.and Chairman Regional Committee,Gorakhpur & Ors.

D. K. Seth, J.—The petitioner''s services having been terminated, an appeal was preferred against the order of termination. The said appeal was decided exparte by order dated 151086 copy whereof was received by the petitioner on 21588. By an application dated 17888, the petitioner prayed for reconsidering the appeal on the grounds mentioned in the said application.

Mr. S. K. Roy, learned counsel holding the brief of Shri T. Nath submits that there is no provision for review under the U.P. Employees Federal Authority (Business) Regulation, 1976 ( here in after called as the, Regulation, 1976). He further opposes the writ petition on the ground that even on merit, the said application for review which is contained as Annexure5 to the writ petition does not make out any case for review. According to him even if the application is treated to be an application for recalling the ex pane order then again the grounds disclosed do not make out a case for recalling. Therefore, according to him the writ petition does not merit consideration.

Mr. H. N. Tripathi, learned counsel for the petitioner on the other hand contends that though in the application a prayer for review was made but the same was in effect was for recalling the ex pane order and not an application for review. He has pointed out to the ground No. 2 of the said application and contended that on compassionate ground, the said application for recall should have been allowed since the petitioner was not being paid his salary for a long time and therefore he was unable to travel to Lucknow for the purpose of pursuing the appeal.

Learned counsel for the petitioner further refers to Regulations 70 and 71 of the Regulation 1976. While translating at the bar Regulation 71(3) of the Regulation 1976 he points out that second appeal is not maintainable unless it discloses grounds for review of the earlier decision. According to him because of the expression ''review'' used in Regulation 71(3) of the Regulation 1976 it cannot be said that the power to review is absent with the appellate authority. Drawing my attention to AnnexureVI to the writ petition he points out that the application of the petitioner was rejected only on the ground that there is no provision for review.

In case the application is treated to be one of review in that event also the order impugned cannot be sustained because of the provision contained in Regulation 71(3) of the said Regulation 1976 which expressly indicates that second appeal can be made, provided there are grounds for review of the earlier decision. Therefore, it cannot be said that there was no provision for review at all and thus the expression indicate the existence of the power to review. But the grounds disclosed in the application does not disclose any ground for review. At the out set learned counsel for the petitioner contended that the application is not an application for review but for recalling the order and he confined his submission on ground No. 2 which according to him is sufficient ground for recalling.

Admittedly, the petitioner was not being paid his salary for a long time. It is not disputed that the Society situate in a remote village and that the petitioner also resides in a remote village. It is also not disputed that the appellate authority sits at Lucknow. The economic disability may be a ground for a poor man to attend the appeal in time. Therefore, in my opinion, the ground No. 2 appears to be sufficient for recalling the order. Accordingly, the matter requires to be sent back. But considering the long passage of time since 1988 when the writ petition was moved it would serve no useful purpose in sending the case back only for the purpose of deciding the application for recalling, particularly in view of the fact that the order impugned is an ex pane one and there is no power to review though such power is recognised in Regulation 71(3) of .Regulation, 1976. Therefore, the impugned orders dated 101286 and 26788, contained as Annexures4 and 6 to the writ petition are here by quashed. Accordingly, a writ of certiorari do issue. Considering the facts and circumstances of the case and in the interest of justice the application for recalling, is also allowed. The appellate authority being respondent No. 5, shall rehear the appeal on a date to be fixed after two weeks from the date of production of certified copy of this order before respondent No. 5 by the petitioner. The said date may be informed to the petitioner on the date of production of certified copy of the order itself. In case the petitioner fails to appear on the date fixed, the matter may be again decided ex pane. It may however be mentioned that I have not entered into the merits of the case and the appellate authority shall be free to decide the case in accordance with law on merits without being influenced by any observation made in the present order. No order as to costs.

Let a certified copy of this order be supplied to the learned counsel for the petitioner on payment of usual charges with in 7 days.