Court No. - 16
Case :- WRIT - A No. - 31433 of 2017
Petitioner :- Ashish Garg
Respondent :- U.P. Power Corporation Limited And 6 Others
Counsel for Petitioner :- Imran Syed
Counsel for Respondent :- Ayank Mishra
Hon'ble Mrs. Sangeeta Chandra,J.
Rejoinder affidavit filed today is taken on record.
Learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the writ petition before this Court. He says that the petitioner has raised a specific ground that the Disciplinary Authority has not followed the U.P. Government Servant (Discipline and Appeal) Rules 1999 and has not conducting the enquiry in accordance with Rules.
The Counsel for the respondents says that the petitioner has a statutory remedy of Appeal under the same rules i.e. Rule 11 which ought to have been availed of by the petitioner before approaching this Court. It is not the case of the petitioner that the order was passed without following the principles of natural justice and it is not his case that it was passed without jurisdiction.
Learned counsel for the respondents has placed reliance upon the judgement of the Constitution Bench of Hon'ble Supreme Court in N.P. Punnuswami Vs. Returning Officer, Namakkal Constitutency, Namakkal, Salem District and Four others. AIR 1952 SC 64. Learned counsel for the respondent has placed reliance on paragraph 12 of the judgement which quoted as follows:-
"12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity6 by Willes, J. in Wolverhampton new Water Works C. v. Hawkesford in the following passage:
"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy,. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
Learned counsel for the respondents submitted that this Court should not relegate the petitioner to remedy prescribed under the Rules as for the past two years, the writ petition has been pending.
However this Court finds that the law has been settled in State of U.P. Vs.
U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti 2008 (12) SCC 675 when there is a statutory remedy and a preliminary objection is raised which is not considered at the stage of admission as fresh, it can be raised even subsequently, despite long pendency of the writ petition, and the writ petition can be dismissed on the ground of availability of statutory remedy.
This Court therefore dismisses the writ petition on the ground of maintainability.
Since, this Court is dismissing the writ petition on the ground of statutory remedy if the petitioner files his appeal within a period of three weeks from today, the Appellate Authority shall not reject his appeal on the ground of limitation and pass appropriate orders on merits within a further period of three months.
Order Date :- 26.11.2018 saqlain