Allahabad High Court
Rajendra Awasthi vs Uttar Pradesh Power Corporation ... on 29 August, 2023
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:174180
Court No. - 9
Case :- CONTEMPT APPLICATION (CIVIL) No. - 4554 of 2023
Applicant :- Rajendra Awasthi
Opposite Party :- Uttar Pradesh Power Corporation Limited
Counsel for Applicant :- Sanjeev Singh,Rekha Singh
Hon'ble Rohit Ranjan Agarwal,J.
The writ Court on 28.09.2022 while disposing off Writ-A No. 13838 of 2020 passed the following order;
"Heard learned counsel for the petitioner and Shri Abhishek Srivastava, learned counsel for the respondent nos. 2 and 3.
Shri Abhishek Srivastava, learned counsel for the respondents has raised a preliminary objection regarding maintainability of this writ petition as the order of punishment has been passed by the Managing Director under Regulation 11 of U.P. Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020 (hereinafter referred to as "2020 Regulations") the appeal shall lie before the Chairman of U.P.P.C.L.
The counsel for the respondents has placed reliance upon my judgment rendered in Writ A No. 14565 of 2022 Santosh Kumar versus State of U.P. and others) decided on 16.09.2022 wherein this Court has placed reliance upon Division Bench Judgement in Special Appeal No. 566 of 2022 decided on 02.09.2022 Smt. Shaheen Badar Vs. U.P. Power Corporation Ltd. And others to say that statutory remedy of appeal should first be availed before approaching this Court in extra ordinary jurisdiction under Article 226 of the Constitution.
This Court has placed reliance upon Constitution Bench Judgment in the case of N.P. Ponnuswami vs Returning Officer (1952 SCR 218 where constitution Bench had held that rights are created under a statute and that remedy is provided under same statute then such remedy shall be availed on before approaching the High Court under extra ordinary jurisdiction under Article 226 of the Constitution.
The counsel for the petitioner has argued that in this case, affidavits have been exchanged and the matter is old and in such matter the judgment of Division Bench of this Court in Writ A No. 39386 of 2007 Kamal Jeet Singh versus The General Officer Commanding in Chief and Others decided on 17.7.2012 would be applicable where the Court had held since affidavits have been exchanged and the matter was old statutory remedy would be a bar.
This Court has carefully considered judgment rendered by the Division Bench and finds that the writ petition was filed in the year 2007 challenging the order of punishment dated 14.06.2004 passed by Cantonment Board, Meerut and the order passed in Appeal dated 27.04.2007 by the General Officer, Commanding-In-Chief, Central Command, Lucknow Cantt. The Court had considered the matter on merits and found that neither the disciplinary authority nor the appellate authority had applied its mind. The Court had observed that further remedy of filing a revision under Rule 15 of the Cantonment Fund Service Rules 1937 would not be efficacious remedy it has considered the Rule 14 and 15 of Rule 1937 and then held that although statutory remedy of filing a revision was available since the writ petition had been pending since 2007 and affidavits have been exchanged between the parties it would have been inappropriate to dismiss the writ petition on ground of availability of statutory remedy of filing the appeal.
In the case of the petitioner however, this Court finds that the petitioner has challenged the punishment order dated 07.11.2020 and the writ petition was filed on 24.11.2020 less than 2 years have passed from the date of filing of the writ petition. Although the affidavits have been exchanged, this Court finds that mere exchange of affidavits cannot make a writ petition which is initially not maintainable on ground of statutory remedy been available maintainable.
This Court is bound by the observations made by the Supreme Court in the case of State of U.P. versus Uttar Pradesh Khanij Vikas Nigam Sangharsh Samiti 2008 (12) SCC 675 where the Supreme Court has categorically observed that mere exchange of affidavits between the parties would not make a writ petition which is initially not maintainable, amenable to extraordinary jurisdiction under Article 226 of the Constitution.
The statutory remedy of filing an appeal against the order impugned being available is also an efficacious remedy as in this case the petitioner has raised disputed question of facts regarding merits of the punishment order.
This petition is disposed of with a direction to the petitioner to approach Chairman of U.P. Power Corporation Ltd. by filing an appeal within three weeks from today.
If such an appeal is filed, it shall not be rejected only on the ground of having been filed after delay and shall be considered and decided on merits.
The Chairman shall also look into the grievance of the non payment of provisional pension."
From perusal of the order of writ Court, it is clear that sole direction was issued to decide the appeal of the applicant on merit.
Today instructions have come which are taken on record.
According to learned counsel for the opposite party the appeal has been decided on 24.08.2023.
As the order of writ Court has been complied by the opposite party and appeal of the applicant has been decided, contempt application stands dismissed.
Contempt notice stands discharged.
File consign to record.
Order Date :- 29.8.2023
Shekhar
