IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 17 (M/S) of 2005 Gupt Prakash Gupta …Petitioner Versus M.D. Dakshani Kashipur Kisan Seva Sahkari Samiti Ltd., Kashipur & others …Respondents Hon’ble Tarun Agarwala, J. Heard Sri C.K. Sharma, the learned counsel for the petitioner, Sri Manoj Tiwari, the learned senior counsel for respondent nos. 1 & 2 and Sri P.C. Bisht, the learned Brief Holder for respondent no. 3. The petitioner has questioned the order dated 24th September, 2004 passed by the Administrator of the Society respondent no. 2, by which the petitioner’s demand for payment of the arrears of the suspension allowance has been refused. The petitioner has also questioned the validity and legality of the ex parte award dated 19.6.993 passed by the Arbitrator whereby a sum of Rs.4,22,254.17/- was found to be due and payable by the petitioner. The facts leading to the filing of the present writ petition is, that at the relevant moment of time, the petitioner was working as an Assistant Accountant/Godown Keeper in the Cooperative Society at Kashipur, Nainital and was suspended by an order dated 24th July, 1991 on the ground of embezzling Rs.4,22,254.17/- which belonged to the Society. A First Information Report dated 25th July, 1991 was also lodged against the petitioner. Thereafter, the petitioner’s services was terminated by an order dated 9th January, 1992, against which the petitioner filed Writ Petition No. 6813 of 1992 before the Allahabad High Court, in which an interim order 2 was passed staying the order of termination and further directing that the petitioner would be treated as a suspended employee during the pendency of the writ petition. Based on the aforesaid interim order, the petitioner was paid the suspension allowance. Eventually, the writ petition was allowed and the order of termination was set aside, but in the Special Appeal, the writ petition was allowed to be withdrawn by the petitioner and a liberty was given to the petitioner to approach the Industrial court. This order was passed on 26.09.2008 in Special Appeal No. 15 of 2006 by a Division Bench of this Court. As a result of the order passed by the Division Bench of this Court in Special Appeal, the order of termination exists as on date. Consequently, the demand of the petitioner to pay the arrears of suspension allowance for the period upto July, 2004 does not arise. The suspension allowance was being paid in terms of the interim order, which, no longer exists. There is an order of termination dated 9th January, 1992 which still exists and therefore, no suspension allowance could be paid for the period after the order of termination dated 9th January, 1992. The relief claimed by the petitioner for payment of 3/4th suspension allowance subsequent to the order of termination does not arise. The petitioner has questioned the ex parte award dated 19th June, 1993. The contention of the petitioner is that it is an ex parte award and that the petitioner was not given an opportunity to appear before the Arbitrator. It was stated that the Arbitrator could not have proceeded with the matter in view of 3 the fact that on the same facts a First Information Report has been lodged against the petitioner and that the criminal proceedings were going on. The learned counsel further submitted that the award cannot be implemented inasmuch as the petitioner has now been acquitted honourably from the criminal court. Having heard the learned counsel for the petitioner, the Court finds from a perusal of the award that the petitioner had appeared before the Arbitrator and had filed an application for staying of the proceedings on the ground that similar proceedings were going on in a criminal court. The Arbitrator did not stay the proceedings and directed the petitioner to file his reply. Since no reply was filed, the Arbitrator proceeded ex parte and ultimately, gave an award. In the light of this finding which has not been questioned, the Court is of the opinion that it is not an ex parte award. The petitioner had knowledge of the proceedings before the Arbitrator, but chose not to appear. Consequently, the Court is of the opinion that the petitioner could not question the validity and legality of the award after a lapse of 10 years and the same is fraught with laches. The writ petition was filed in the year 2004, whereas the award is of the year 1993. Further, the Court finds that the petitioner has an efficacious remedy to file an appeal before the Tribunal under Section 97 of the Uttaranchal Cooperative Societies Act, 2003. In the light of the aforesaid, the Court does not find any merit in the writ petition and is dismissed. (Tarun Agarwala, J.) 22-09-2011 Salim/