Anwar Khan Vs. District Magistrate, Deoria & Ors  INSC 1424 (10
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.5271 OF
2009 (Arising out of SLP(C) No.9679 OF 2006) KHURSHEED ANWAR KHAN
O R D E R
appellant was serving as an Arms Clerk. After a departmental enquiry, he was
dismissed from service w.e.f.20.09.2004. Thereafter, he challenged the same by
filing a Writ Petition before the High Court of Judicature at Allahabad. By
Order dt.10.03.2005, though the learned Single Judge referred to factual
details about the enquiry and ultimate dismissal, however, finally dismissed
the Writ Petition on the ground of availability of alternative remedy of
appellant, instead of resorting to the appeal remedy, filed a Special Appeal
before the Division Bench of the High Court. By the impugned order
dt.06.04.2006, the Division Bench dismissed the Special Appeal. Challenging the
same, the appellant has filed the present appeal by way of Special Leave
of the impugned order of the Division Bench shows that after arguing his case
for some time, the counsel for appellant sought permission to file an appeal in
the Division Bench turned down his request since the matter was argued for some
time and ultimately dismissed his appeal.
It is not
in dispute that as per Rule 11 of the U.P.Government Servant (Punishment and Appeal)
Rules, 1999, the appellant is entitled to file an appeal before the appellate
authority. No doubt, the appellant has not availed such remedy at the
appropriate time. Even after dismissal 2 of the Writ Petition by the learned
Single Judge, he could have availed such remedy. But the fact remains that
though he wanted to avail such remedy at the appellate stage, the Division
Bench has not permitted him to file the same. Having note of the fact that the
appellant has been dismissed from service, we are of the view that the
appellant may be permitted to challenge the order of dismissal by resorting to
Rule 11 of the U.P.Government Servant (Punishment and Appeal) Rules, 1999 as
appellant is permitted to file an appeal to the Appellate Authority within a
period of four weeks. On such appeal being filed, the Appellate Authority is
directed to consider and dispose of the same on merits in accordance with law.
it clear that we have not expressed any opinion on the merits of the case.
appeal is disposed of accordingly. There shall be no order as to costs.
.............................J. ( P.SATHASIVAM )
.............................J. ( R.M.LODHA )
AUGUST 10, 2009.
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