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2020 DIGILAW 1370 (ALL)

Hemant Kumar Singh v. State Of U. P.

2020-11-25

RAMESH SINHA, SAMIT GOPAL

body2020
JUDGMENT : 1. Heard Sri Praveen Kumar, learned counsel for the appellant-petitioner through Video Conferencing and Sri Rajiv Singh, learned Standing Counsel appearing for the respondents, who is physically present in the Court. 2. The present Special Appeal has been filed against the impugned judgment and order dated 12.10.2020 passed by the learned Single Judge in Writ-A No. 3553 of 2019 (Hemant Kumar Singh Vs. State of U.P. and others) whereby the writ petition has been dismissed on the ground of existence of alternative remedy by leaving it open to the appellant-petitioner to avail such remedy if so advised. 3. The issue before this Court is limited only to the extent as to whether a learned Single Judge once at the time of raising a preliminary objection regarding maintainability of the writ petition on the ground of an alternative remedy has proceeded to entertain the writ petition and call for a counter affidavit in the matter on merits and later on another learned Single Judge dismissed the said writ petition on the ground of existence of alternative remedy with the consent of learned counsel for the parties and as such will it be open for the other learned Single Judge to do so. The facts of the present case are not being attended to by this Court as the question is in a narrow compass as stated above. 4. Learned counsel for the appellant-petitioner argued that once the learned Single Judge before whom a preliminary objection regarding maintainability of the writ petition on the availability of alternate remedy was taken and the Court comes to a finding that it is unable to sustain the said objection, it will not be open for another learned Single Judge to dismiss the writ petition on the ground of existence of alternative remedy. Thus the said order is impugned herein. Learned counsel for the appellant-petitioner has placed reliance upon the following judgments to buttress his submissions:- "(i) The Medhodist Church in India Vs. The Bareilly Development Authority: AIR 1988 ALL 151 ; (ii) Suresh Chandra Tewari Vs. District Supply Officer and another: AIR 1992 ALL 331 ; (iii) Narendra Kumar Pandey Vs. State Bank of India through its Chief G.M.: Service Bench No. 757 of 1999; (iv) State of U.P. and another Vs. The Bareilly Development Authority: AIR 1988 ALL 151 ; (ii) Suresh Chandra Tewari Vs. District Supply Officer and another: AIR 1992 ALL 331 ; (iii) Narendra Kumar Pandey Vs. State Bank of India through its Chief G.M.: Service Bench No. 757 of 1999; (iv) State of U.P. and another Vs. U.P. Rajya Khanij Vikas Nigam S.S. & others: Appeal(Civil) No. 3202 of 2008 [S.C.]; (v) Genpact India Private Limited V. Deputy Commissioner of Income Tax &Another: Special Leave Petition (Civil) No. 20728 of 2019." 5. Per contra, learned Standing Counsel while opposing the present Special Appeal argued that the learned Single Judge had initially when the matter was taken up before him and a preliminary objection regarding the maintainability of the writ petition on the ground of availability of alternate remedy was raised, considered the same but proceeded to examine the matter on merits in view of the nature of dispute. It was argued next that the order impugned dated 12.10.2020 is an order with consent and as such challenge to the same is not permissible in law. Learned Standing Counsel has placed reliance upon the following judgments to buttress his submissions that no appeal is maintainable against a consent order, which are as follows: "(i) State of Orissa and others Vs. Gokulananda Jena: 2003(6) SCC 465 ; (ii) S.A. Khan Vs. State of Haryana: 1993(2)SCC 327; (iii) Mohan Lal Vs. State of U.P. and others: 2013(100)ALR 38; (iv) Surendra Rao Vs. Regional Transport Authority, Gorakhpur Region and others: 1992 AIR(All) 211; (v) Daljit Kaur and another Vs. Muktar Steels Pvt. Ltd and another: 2013(16) SCC 607 and; (vi) Kuber Singh Vs. State of U.P. and 3 others: Special Appeal No. 1124 of 2019." 6. We have heard learned counsel for the parties and have perused the record. 7. The Writ-A No. 3553 of 2019 (Hemant Kumar Singh Vs. Muktar Steels Pvt. Ltd and another: 2013(16) SCC 607 and; (vi) Kuber Singh Vs. State of U.P. and 3 others: Special Appeal No. 1124 of 2019." 6. We have heard learned counsel for the parties and have perused the record. 7. The Writ-A No. 3553 of 2019 (Hemant Kumar Singh Vs. State of U.P. and others) was initially taken up on 07.3.2019 and the learned Single Judge passed the following orders: "Although, Sri J.S. Bundela, the learned Standing Counsel has raised a preliminary objection to the maintainability of the writ petition on the ground that the petitioner has an alternative remedy of preferring a statutory appeal, this Court finds itself unable to sustain this objection since it is asserted that although the enquiry report was submitted on 23 August 2013, the Disciplinary Authority has chosen to pass final orders six years thereafter in terms of the order impugned. Additionally, it is asserted that no oral enquiry was conducted before imposition of a major penalty. Learned Standing Counsel prays for and is granted six weeks' time to file a Counter Affidavit in this petition. The petitioner shall have two weeks thereafter to file his Rejoinder Affidavit. List thereafter." 8. Subsequently, the said writ petition came to be dismissed on the ground of existence of alternate remedy leaving it open to the petitioner-appellant to avail such remedy if so advised and the order passed on 12.10.2020 which reads as under: "Shri Pradeep Kumar, learned Senior Counsel for the petitioner fairly admits that there is a provision for taking the order of dismissal in appeal before the competent authority. 9. The writ petition is dismissed on the ground of existence of alternative remedy. It is open to the petitioner to avail such remedy if so advised." 10. Argument of learned counsel for the appellant-petitioner that the learned Single Judge could not have dismissed the writ petition on the ground of alternate remedy is fallacious from the bare perusal of the order dated 12.10.2020 which is impugned in the present special appeal, it is apparent that the same is an order passed by a consent of learned counsel for the parties appearing in the matter that there is a provision for taking the order impugned therein in appeal before the competent authority. In so far as the judgments relied upon by learned counsel for the appellant-petitioner is concerned, the same are not of any help in the dispute in the present matter as the same are addressing the question as to maintainability of a writ petition during the existence of an alternate remedy to a person who has approached the Court. The position of law as settled till date that availability of alternative remedy is not a bar in entertaining writ petition under Article 226 of the Constitution of India is not in dispute. The argument of learned counsel for the appellant-petitioner is at an error in the matter as the writ petition was dismissed by the order impugned on the admitted fact of availability of alternative remedy. 11. In so far as it relates to the argument of learned Standing Counsel, the same does impress us and is also supported by the said view through the judgments relied by him that no appeal lies against a consent order. 12. The present Special Appeal thus is not maintainable as it has been filed against an order passed with consent. 13. The present Special Appeal is thus dismissed as not maintainable. 14. Needless to say, the appellant-petitioner is at liberty to seek his appropriate remedy before the learned Single Judge, if so advised. 15. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official. 16. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.