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2010 DIGILAW 123 (CAL)

Biswanath Dey v. UNION OF INDIA

2010-02-11

KALIDAS MUKHERJEE, KALYAN JYOTI SENGUPTA

body2010
JUDGMENT 1. By consent of the parties we dispose of this application as well as the appeal by the following judgment and order, as we feel that this course of action will help both the parties. 2. This appeal is against judgment and order dated 6th August, 2009 passed by the learned Single Judge by which two writ petitions, one filed by the wife and another filed by the appellant, have been dismissed. 3. In both the writ petitions prayer was made for dismissal and/or permanent stay of civil suit filed by the Railways in the Court of Civil Judge (Senior Division), Malda. 4. The short fact of this case is required to be narrated in a better way. 5. Sri Biswanath Dey was a railway employee and in course of his employment it was alleged that he had committed a defalcation of railway fund. As such when he was in service, disciplinary proceeding was initiated and the same was challenged before the learned Central Administrative Tribunal by Sri Dey. However, having been unsuccessful there he came to this Court and the Division Bench of this Court set aside the disciplinary proceeding as well as the order of the learned Tribunal who declined to interfere with the disciplinary proceedings. By the Division Bench judgment and order, direction was given to release all the legitimate dues and at the same time liberty was given to railway authority to take action in accordance with law. 6. After the aforesaid judgment was rendered, the railway had filed a suit in the aforesaid Court below for a decree of a sum of Rs. 21,000,00/-. The present appellant entered appearance in the said suit. The action for initiation of the said suit and also continuation of the suit is challenged in the writ petition, in sum and substance. This challenge has been made in the writ petition on the ground that relevant departmental rules do not permit the railway authority to institute any suit or make any claim in respect of a cause of action which arose on an event which took place more than four years before such institution. 7. Mr. This challenge has been made in the writ petition on the ground that relevant departmental rules do not permit the railway authority to institute any suit or make any claim in respect of a cause of action which arose on an event which took place more than four years before such institution. 7. Mr. Bose, learned Counsel appearing on behalf of the appellant submits that the learned Trial Judge did not consider the aspect that when the rule creates a bar for initiation of action in respect of cause of action or an event which took place four years before his retirement; such action should not be allowed, to continue. According to him, the decision of railway authority is an arbitrary one and does not stand to the scrutiny of the relevant clause being clause (c) of Rule 2308 of Appeal & Conduct Rules, which reads thus:- "No such judicial proceedings if not instituted while the Railway servant was in service whether before his retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution." 8. The learned Trial Judge has observed that since the suit has been filed and plea of bar being taken, it would be open for the writ petitioner/appellant to approach the Court concerned to take such plea. 9. We are in agreement with the learned Trial Judge that such a plea cannot be taken in public law field by filing a writ petition. When the matter has been taken before the Civil Court and a defence is available both on the point of law as well as fact, so this plea can very well be taken before the Court concerned. In substance the appellant before us wants dismissal of the suit and such relief can only be granted by the Civil Court and Civil Court alone before whom the matter is pending and not by any other Court. No Court, except Supreme Court of India, under Article 142 of the Constitution of India read with section 25 of CPC, can perhaps decide this matter and no Court, judicially inferior to Supreme Court, is clothed with such power. No Court, except Supreme Court of India, under Article 142 of the Constitution of India read with section 25 of CPC, can perhaps decide this matter and no Court, judicially inferior to Supreme Court, is clothed with such power. Therefore, we grant liberty to the appellant to take such plea before the Court concerned and if such plea is taken in an appropriate manner, the concerned Court will decide either on demurrer action, if permissible under the law at present or a preliminary issue, if permissible under the law. All points are kept open. 10. We, therefore, do not find any reason to interfere with the judgment and order impugned in this appeal, except as above. 11. The appeal and the connected application being A.S.T.A. No. 62 of 2009 are, thus, disposed of. There will be no order as to costs. Xerox certified copy of this judgment be supplied to the applicants.