Calcutta High Court (Appellete Side)
In Re: Amitava Sarkar vs Union Of India & Ors on 14 June, 2017
Author: Nishita Mhatre
Bench: Nishita Mhatre
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14.06.17
Item No.10
Court No.01
Krishnendu
W.P.C.T. No. 27 of 2017
In re: An application under Article 226 of the Constitution of India filed on 03.02.2017;
And
In re: Amitava Sarkar
- Versus -
Union of India & Ors.
Mr. Chiradip Sinha
Mr. Barun Chatterjee
For the Petitioner
Mr. Anirban Dutta
For the Respondents
The subject matter of challenge in the present writ petition is an order dated 23rd December, 2016 passed by the learned Judicial Member, Central Administrative Tribunal, Calcutta Bench, in original application being O.A. 350/01093/ 2016.
Mr. Sinha, learned advocate appearing for the petitioner submits that a disciplinary proceeding was initiated against the petitioner through issuance of a charge sheet dated 12th August, 2013. An enquiry was conducted and an order of punishment was passed on 23rd May, 2016 directing reduction of pay to one grade lower for two years with cumulative effect. Aggrieved by the said order, the petitioner preferred a statutory appeal. The appellate authority issued a memorandum dated 21st June, 2016 asking the petitioner to show cause as to why the punishment imposed should not be enhanced. The petitioner replied to the same and thereafter the appellate authority by an order dated 26th June, 2016 enhanced the punishment and imposed a major penalty of compulsory retirement. Aggrieved by the said order, the petitioner approached the learned Tribunal by filing an original application, being O.A. 350/01093/2016. At the 2 admission stage it was urged on behalf of the respondents that the application was not maintainable as the petitioner has not exhausted the remedy of revision as provided under the Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as the said Rules of 1968) prior to filing of the original application. The learned Judicial Member did not accept such contention of the respondents and quashed the order passed by the appellate authority. However, the learned Administrative Member directed the petitioner to approach the revisional authority with all his grievances. As there was a difference of opinion among the learned Judicial Member and the learned Administrative Member, the matter was referred to a learned third Member, who passed the impugned order dated 23rd December, 2016 observing, inter alia, that the petitioner's application cannot be admitted for hearing and liberty was granted to the petitioner to the effect that he may approach the Tribunal after exhausting all statutory remedies available upon the relevant Service Rules.
Drawing the attention of this Court to paragraph 3 of the impugned order, Mr. Sinha argues that the issue referred to the third learned Member was as to whether without exhausting the remedy of placing of his case before the revision authority, the petitioner can approach the learned Tribunal but the said learned Member travelled beyond the reference and dismissed the petitioner's application by observing that he did not exhaust the remedy of second appeal as provided under the said Rules.
Mr. Dutta, learned advocate appearing for the respondents, submits that there is no infirmity in the order dated 23rd December, 2016. Rule 19 of the said Rules of 1968 categorically provides that an order passed in a statutory appeal enhancing the penalty can be challenged by preferring a second appeal. The petitioner admittedly did not 3 avail such remedy before approaching the learned Tribunal and, as such, the application was rightly not entertained in view of the provisions of section 20 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the said Act).
We are surprised to note that the dates of delivery of the orders passed by the learned Judicial Member and the learned Administrative Member respectively have not been incorporated in the said orders. However, the application for obtaining certified copies of the said orders was submitted by the petitioner on 8th November, 2016, as would be explicit from page 116 of the writ petition.
There is no dispute that under Section 20 of the said Act discretion is conferred upon the Tribunal to decide as regards admission of an application where the applicant had not availed of all the remedies available to him under the relevant service rules. Such proposition would be explicit from the term 'ordinarily' as incorporated in Section 20(1). A perusal of the order passed by the learned first Judicial Member would reveal that discretion was exercised to entertain the application since according to her there had been a violation of principles of natural justice as the appellate authority while issuing the show cause notice towards enhancement of punishment did not indicate the penalty that he proposed to inflict. Without categorically disputing such finding and without giving appropriate reason to negate the other finding of the learned Judicial Member to the effect that the said Rules of 1968 do not mandatorily require the petitioner to approach the revisional authority prior to preference of the original application, the learned Administrative Member and the learned third Member directed the appellant to approach the revisional authority.
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Section 26 of the said Act of 1985, inter alia, provides that when the Members of the Bench are equally divided, they shall state the point or points on which they differ and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points to a third Member. The point of reference was as to whether without exhausting the remedy of revision, the petitioner could have approached the Tribunal. Surprisingly, the learned third Member proceeded on the basis that the petitioner could have preferred a second appeal and having not availed such alternative remedy the petitioner was not entitled to approach the learned Tribunal. The said order suffers from a jurisdictional error as the learned third Member could not have proceeded beyond the point referred to be decided.
It is well settled that the rule of exhaustion of alternative remedy, being a rule of discretion rather than a rule of compulsion, in an appropriate case, the Court would be justified in exercising its discretion. The learned first Judicial Member exercised such discretion upon arriving at a finding that there had been a violation of the principle of natural justice as the appellate authority did not indicate the penalty that he proposed to inflict as enhanced penalty. Such finding could not be negated by the learned Administrative Member and the learned third Member.
For the reasons discussed above, we are of the opinion that the impugned order dated 23rd December, 2016 is not sustainable in law and the same is accordingly set aside and the writ petition is disposed of remitting the original application to the learned Tribunal for fresh consideration on merit.
It is made clear that this Court has not gone into the merits of the petitioner's claim and all points are kept open to be decided by the learned Tribunal and that the 5 petitioner would be at liberty to renew his prayer for interim order before the learned Tribunal.
There shall, however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties upon compliance of all necessary formalities.
(Nishita Mhatre, A.C.J.) (Tapabrata Chakraborty, J.)