Smt. Sunita Mehar And Ors vs C.G. State Power Dist. And Anr
2021 Latest Caselaw 2313 Chatt

                                1

                                                                 AFR
         HIGH COURT OF CHHATTISGARH AT BILASPUR
              Writ Petition (S) No. 452 of 2013
  1. Chunni Lal Mehar (dead) through LRs. :­

    (a) Smt. Sunita Mehar Wd/o Late Chunni Lal Mehar,
    Aged about 55 years.

    (b) Mukti Mehar S/o Late Chunni Lal Mehar, Aged
    about 35 years.

    (c) Rakesh Mehar S/o Late Chunni Lal Mehar, Aged
    about 32 years.

    All R/o Palace Road, Koshtapara, Raigarh, Tahsil
    and Distt. Raigarh, Chhattisgarh.

                                                 ­­­Petitioners

                              Versus

  1. Chhattisgarh   State     Power     Distribution     Company,
    through   its   Chairman,       Raipur,   Tahsil   and   Distt.
    Raipur, Chhattisgarh.

  2. Superintendent Engineer, Chhattisgarh State Power
    Distribution Company, Bilaspur Circle, Tifra, P.S.
    Tifra, Distt. Bilaspur, Chhattisgarh.

                                               ­­­Respondents

For Petitioner :­ Mr. M.K. Sinha, Advocate For Respondents :­ Mr. Varun Sharma, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 14/09/2021

1. The original petitioner namely Chunni Lal Mehar was

dismissed from service by order dated 22/05/1976

(Annexure P/1) against which he preferred Civil

Suit No. 21A/1977 before the Civil Judge Class - I,

Bilaspur which was dismissed on merits on

12/01/1993, being aggrieved by which, he preferred

Civil Appeal No. 27­A/1993 which was also dismissed

by the first appellate court on 26/7/1994 on

merits. Thereafter, the original petitioner

preferred Second Appeal No. 743/1994 before this

Court which was dismissed as withdrawn on

21/11/2011 with liberty to file appropriate writ

petition.

2. The order dated 21/11/2011 passed by this Court in

Second Appeal No. 743/1994 states as under :­

"1. By this second appeal under Section 100 of the Code of Civil Procedure the appellant has challenged legality and propriety of the judgment & decree dated 26.7.1994 passed by the Sixth Additional Judge to the Court of District Judge, Bilaspur, in Civil Appeal No. 27­A/93, affirming the judgment and decree dated 12.1.1993 passed by the First Civil Judge Class - I has dismissed the suit filed on behalf of the appellant/plaintiff.

2. After some arguments, learned counsel for the appellant seeks to withdraw this appeal with liberty to file appropriate writ petition.

3. The appeal is dismissed as withdrawn with the aforesaid liberty. Certified copy of the judgment and decree impugned be returned to counsel for the appellant after furnishing duly photostat copy of the same. No order as to cost(s)."

4. A careful perusal of the aforesaid order would show

that the second appeal has been withdrawn by the

appellant/original petitioner herein with liberty

to file appropriate writ petition.

5. When the instant writ petition is taken up for

hearing, Mr. Varun Sharma, learned counsel for the

respondents, would submit that the Civil Suit has

been dismissed on merits and the appeal preferred

against the judgment and decree of the trial Court

has also been dismissed by the first appellate

Court on merits, therefore, decree of the trial

Court against the order of dismissal of the

original petitioner herein has merged into the

decree of the first appellate Court and it has

become final and the second appeal has been

dismissed as withdrawn though liberty has been

granted by this Court to file appropriate writ

petition, but the instant writ petition would not

be maintainable as the judgment and decree of the

first appellate Court upholding the judgment and

decree of the trial Court dismissing the suit

holding the order of petitioner's dismissal dated

22/05/1976 to be strictly in accordance with law

has become final and would bar this writ petition.

He would rely upon the decision of the Supreme

Court in the matter of Ramendra Kumar Biswas v.

State of Tripura and Others1 to buttress his

submission.

1 (1999) 1 SCC 472

6. Per contra, Mr. M.K. Sinha, learned counsel for the

petitioner, would submit that for bona fide reason,

the second appeal was withdrawn and in the matter

of Ramendra Kumar Biswas (supra), the Supreme Court

has clearly held that it is an erroneous view that

civil court does not have jurisdiction to

adjudicate on an order passed by disciplinary

authority, and that only writ petition can be filed

after exhausting departmental remedies and that

provisions of the CCS (CCA) Rules, 1965 do not oust

the jurisdiction of civil courts.

7. I have heard learned counsel for the parties at

length and considered their rival submissions.

8. In the matter of Ramendra Kishore Biswas (supra),

it has been held in paragraph 5 as under :­

"5. The opinion expressed by the learned single Judge to the effect that in view of C.C.A. Rules, the jurisdiction of the civil court is ousted from dealing with an order passed by the disciplinary authority which can be questioned under the service rules and that even after recourse is had to the Departmental proceedings recourse can only be to file a writ petition is palpably erroneous. The learned single Judge readily accepted the ouster of jurisdiction of civil courts to deal with service matters without proper consideration of the matter. Indeed, it is appropriate to relegate a person to exhaust Departmental remedies when he approaches the Court without exhausting departmental remedies under the service rules but to hold that the civil court had no jurisdiction while hearing a second appeal, after the matter has been litigated in civil court for more than five years was, Jo say the least, not proper. The learned single

Judge ought to have decided the case on its own merits and not made a short cut of it. The appellant could not have been non­suited on the ground that he had failed to take recourse to proceedings under the C.C.S. (C.C. & A.) Rules, 1965 against the order of dismissal. "

9. Their Lordships of the Supreme Court in paragraph 6

further held that Service Rules, neither expressly

nor by implication, have taken away the

jurisdiction of the civil courts to deal with

service matters and set aside the order of the High

Court allowed the appeal and remitted the second

appeal to the High Court for fresh disposal on

merits in accordance with law.

10. In view of the aforesaid authoritative

pronouncement, since judgment and decree of the

first appellate Court affirming the judgment and

decree of the trial Court dismissing the suit of

the plaintiff/original petitioner herein holding

petitioner's dismissal from service by order dated

22/05/1976 to be correct and in accordance with law

has become final, therefore, the instant writ

petition is held to be not maintainable. However,

the LRs. Of the original petitioner are at liberty

to proceed in accordance with law. It is made clear

that this dismissal of writ petition would not bar

the petitioner (now, his LRs.) to avail the remedy

available under the law.

11. With the aforesaid observation, this writ petition

is dismissed being not maintainable. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge Harneet