Himachal Pradesh High Court
Constable Sushil Kumar vs State Of H.P. & Others & Others on 10 July, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 6365 of 2024
Decided on: 10.07.2024
Constable Sushil Kumar ... Petitioner
Versus
State of H.P. & others & others ... Respondents
.
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1Yes
____________________________________________________ _
For the petitioner : Mr. Rakesh Kumar Dogra, Advocate.
For the respondents : Mr. Rajat Chauhan, Law Officer.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioner has prayed for the
following reliefs:-
"(i) That the impugned order dated 20.06.2024 (Annexure
P-11) passed by the learned appellate authority-
respondent No.3 rejecting the appeal of the petitioner may
kindly be quashed and set-aside, being arbitrary, illegal,
non-est, constitutionally void, by issuing writ of Certiorari;
(ii) That a writ in the nature of mandamus may kindly be
issued, directing the respondent No.3 to entertain the
appeal of the petitioner dated 10.06.2024 (Annexure P-
10) and decide the same on its merit and that too, in
accordance with law by affording a reasonable
opportunity of personal hearing to the petitioner and
justice be done."
2. In terms of the order passed by Appellate Authority,
copy whereof is appended with the petition as Annexure P-11, dated
20.06.2024, the appeal of the petitioner has been rejected by the
Appellate Authority on the ground that the same was not filed with
the period of limitation.
3. I have heard learned counsel for the petitioner as also
Whether reporters of the local papers may be allowed to see the judgment?
learned Law Officer.
4. Brief facts necessary for the adjudication of this Writ
petition are that the departmental proceedings were initiated against
.
the petitioner which culminated into issuance of order dated
22.12.2023 by the Disciplinary Authority, in terms whereof, major
penalty of dismissal from service was imposed upon the petitioner.
In fact, during the pendency of the departmental proceedings against
the petitioner, the petitioner had filed a Writ petition before this
respondents
and certain
Court, i.e. CWP No.5299 of 2023, titled Sushil Kumar versus State of
H.P. and others, in which he had assailed certain acts of the
orders passed by the respondents
originating from the departmental proceedings. This Writ petition
was disposed of by this Court on 15.05.2024, in the following
terms:-
"Learned counsel for the petitioner prays that the
petitioner may be permitted to withdraw this petition, but
with liberty to file a fresh petition on the same cause by
bringing on record better particulars.
2. Petition is permitted to be withdrawn, with liberty,
as prayed for. Pending miscellaneous application(s), if any
also stand disposed of accordingly."
5. However, during the pendency of this petition itself, the
Disciplinary Authority had passed the order of dismissal of the
petitioner from service. Incidently, in CWP No.;5299 of 2023, the
petitioner filed CMP No.2474 of 2024, in which his grievance was
that certain documents relating to the inquiry had not been made
available to him and this application was disposed of by the Court
on 06.05.2024, by passing the following order:-
"Mr. Rakesh Kumar Dogra, learned counsel for the
.
petitioner submits that documents relating to the inquiry is
still not made available to him. On his request, the
application is ordered to be listed on 15.05.2024. Reply to
the application be filed by the non-applicants on the said
date and documents relating to the inquiry be also made
available to the applicant by the said date."
6. As per learned counsel for the petitioner, after the
requisite documents were made available to him, the petitioner
assailed the order passed by the Disciplinary Authority by way of
CWP No.4794 of 2024, titled Constable Sushil Kumar vs. State of
H.P. & others. This Writ petition was disposed of by this Court on
28.05.2024, in terms of Annexure P-9, giving liberty to the petitioner
to avail the appellate remedy. The appeal, thereafter, filed by the
petitioner has been dismissed by the Appellate Authority in terms of
impugned order (Annexure P-11), by holding that the appeal was not
filed within the period of limitation.
7. Feeling aggrieved, the petitioner has filed this Writ
petition.
8. Though, it is not in dispute that the appeal was not filed
by the petitioner against the order passed by the Disciplinary
Authority within the statutory period of thirty days, however, it is
also borne out from the record that the petitioner was agitating the
factum of complete documents not being made available to him
relating to the inquiry. It is in this backdrop that this Court had
passed order on 06.05.2024, in CMP No.2474 of 2024, which already
stands quoted by me hereinabove. It is only after the requisite
.
documents were made available to the petitioner that he filed a Writ
petition before this Court, challenging the order passed by the
Disciplinary Authority, which petition was permitted to be
withdrawn with liberty to file a fresh petition on the same cause.
9. In this background, this Court is of the considered view
that rejection of the appeal of the petitioner by the Appellate
Authority on the ground that the same was not filed within the
period of limitation is a harsh order. Appellate Authority has not
appreciated the fact that the appeal was filed pursuant to the liberty
granted to the petitioner by the High Court to prefer an appeal.
10. Be that as it may, endeavour of the Quasi Judicial
Authority ought to be to give an opportunity to the aggrieved party
to put-forth its contention against the impugned order on merit
rather than following a hyper technical approach of the kind that
has been adopted in terms of the impugned order.
11. Accordingly, this Writ petition is allowed. Annexure
P-11, dated 20.06.2024, in terms whereof, the appeal of the
petitioner has been rejected on the ground that the same was not
filed within the period of limitation is set aside and and it is ordered
that the Appellate Authority shall decide the appeal on merit. It is
clarified that this Court has not made any observation as far as the
merit of the appeal is concerned and the same shall be decided by
the Authority on its own merit.
12. Pending miscellaneous application(s), if any also stand
disposed of accordingly.
.
(Ajay Mohan Goel)
Judge
July 10, 2024
(Rishi)
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