Calcutta High Court (Appellete Side)
Raushan Kumar Singh vs The Union Of India & Ors on 27 September, 2013
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
27th September,
2013.
(SKB)
W.P. 17563 (W) of 2005
With
CAN 8201 of 2012
Raushan Kumar Singh
Versus
The Union of India & Ors.
Mr. Arun Kumar Maity,
Mr. Koustava Ratan Chatterjee
......for the petitioner.
Mr. Bhaskar prasad Baisya
...for the U.O.I.
The writ petitioner is aggrieved against the impugned order of punishment
of removal imposed on him in view of a Summary Security Force Court's order.
Learned Counsel for the writ petitioner submits that three constable were
involved in same case and all of them were issued same charges against which
one disciplinary proceeding was initiated. Three constables were removed. One
constable preferred an appeal against the order of removal before the appellate
forum. Appellate forum decided against the said constable. Against that a writ
petition was moved before this Court and the same was dismissed. Appeal was
preferred and the appellate Court set aside the order of the trial court and
directed for reinstatement of the said constable.
The order passed by the Hon'ble Appeal Court was challenged by the
employer before the Hon'ble Apex Court and the Hon'ble Apex Court upheld the
order passed by the Hon'ble Division Bench.
Mr. Maity submitted that since the charges were same and they were
involved in same proceedings, same punishment was imposed, the writ
petitioner, without preferring an appeal before the appellate forum, has
straightway came before this Hon'ble Court.
2
Since there is violation of regulation, which is applicable in case of the
Summary Security Force Court, the impugned proceedings as well as the order of
removal should be struck down.
Mr. Maity pointed out that it was specifically admitted by the respondents
that they themselves violated Rule 158 and the same violation is there in the instant case. According to him, since there is a violation of Rule 158, the writ petitioner can come before this Hon'ble Court without approaching the appellate forum. He submitted that the order passed by the disciplinary authority should be set aside and the writ petitioner should be reinstated.
Learned Counsel appearing for the respondents submits that there is a forum for appeal and thereafter revision. Accordingly, the writ petitioner ought to have prefer appeal and thereafter he should have come before this Hon'ble Court. In the other case the authority decided the case against the employee and appeal was preferred before the appellate authority and thereafter he filed writ petition. According to him, the writ petition is not maintainable because of availability of alternative remedy.
Heard the Counsel appearing for the respective parties and considered the materials available in records.
The undisputed fact is that there were three employees who were involved in a same case. one proceeding was initiated and in which three were tried and all of them were punished by an order of removal.
One came up before this Hon'ble Court challenging both the orders of the disciplinary authority as well as the appellate forum and it was found that there was a violation of Rule 158 and the order of punishment was set aside.
In my view, it is no use to go before the appellate forum when there is a clear violation of the rules framed by the concerned authority. The entire proceedings is vitiated. Therefore, remedy under writ jurisdiction is available to the petitioner.
It is now well settled that if there is violation of law or there is violation of fundamental rights the writ petitioner can come before the writ court for redressal. Therefore, the writ petition is maintainable.
3The respondents have admitted that they have violated the Rule 158 which is applicable as regards holding of the proceedings. it is evident that the Hon'ble Appeal Court after careful consideration of the matter held that there was violation of Rule 158 and therefore, the order impugned was set aside.
The writ petitioner is similarly situated like the other employee and, therefore, he should get the benefit of the order of the Hon'ble appeal Court since the charges were same and all three including the petitioner was involved in the same proceedings.
Accordingly, I hold that the Summary Security Force Court acted contrary to Rule 158. Therefore, the proceeding before the Summary Security Force Court is vitiated. Accordingly the impugned order under challenge is set aside and the respondents are directed to reinstate the writ petitioner on and from the date of passing of this order. However, the writ petitioner would not get any financial benefit for the period starting from the date of dismissal till today. The respondent authorities are directed to give notional benefit and continuity of service in favour of the writ petitioner which would be taken care of at the time of calculating the retiral dues of the writ petitioner.
With the above direction, the writ petition is allowed. There will be, however, no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.
(Ashoke Kumar Dasadhikari, J.) Later:
I do not find any justification for making a prayer for stay. The concerned respondents are directed to act in terms of this order within two weeks from date of communication of this order.4
(Ashoke Kumar Dasadhikari, J.)