IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SB) No. 116 of 2010 Jai Prakash Rana …......Petitioner. Versus State of Uttarakhand and others. ...Respondents. Present: Mr. A. Rab, Advocate for the petitioner. Mr. J.P. Joshi, Advocate for the respondents. Date of Decision : 28.6.2010 Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. Khehar, C.J, (Oral) 1. The petitioner was appointed as a Constable in the Uttarakhand Police Service in 2001. By an order dated 28.4.2009, he was dismissed from service under the provisions of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 read with the Adaptation and Modification Order, 2002. The petitioner preferred a statutory Appeal under Rule 20 of the Punishment and Appeal Rules. The appeal preferred by the petitioner was dismissed on 22.12.2009. 2. Dissatisfied with the order of his dismissal from service dated 28.4.2009 and the order by which his Appeal was rejected dated 22.12.2009, the petitioner approached the Uttarakhand Public Service Triubnal, Dehradun by filing a Claim Petition No. 54 of 2010. The Uttarakhand Public Services Tribunal by its order dated 22.6.2010 (Annexure-2) declined to entertain the Claim Petition preferred by the petitioner on account of the fact, that the petitioner should have availed of the revisional remedy available to him under the Punishment and Appeal Rules. Liberty was, however, granted to the petitioner to avail of his revisional remedy. 3. Dissatisfied with the order passed by the Uttarakhand Public Services Tribunal dated 22.6.2010, the petitioner has approached this Court by filing the instant Writ Petition. During the course of hearing, learned counsel for the petitioner relied upon Sub Sections 5 and 6 of Section 4 of the U.P. Public Services (Tribunal) Act, 1976. Sub-Sections 5 and 6 of Section 4 of the U.P. Public Services (Tribunal) Act, 1976 2 relied upon by the learned counsel for the petitioner are being extracted hereunder: “(5) The Tribunal shall not ordinarily admit a reference unless it is satisfied that the public servant has availed of all the remedies available to him under the relevant service rules, regulations or contract as to redressal of grievance. (6) For the purpose of sub-section (5) a public servant shall be deemed to have availed of all the remedies available to him if a final order has been made by the State Government, an authority or officer thereof or other person competent to pass such order under such rules or regulations or contract rejecting an appeal preferred or representation made by such public servant in connection with the grievance.” It is the vehement contention of the learned counsel for the petitioner, relying on Sub-section 5 extracted hereinabove, that even without availing of any alternative remedy, it is open to an employee to raise his claim before the Public Services Tribunal. Despite that, it is further contended, that under Sub-section 6, once an employee has availed of an appellate remedy and a decision has been rendered thereon, insofar as, the Public Services Tribunal is concerned, he would be deemed to have availed of “…all the remedies available to him…”. 4. Notice to the respondents. 5. Mr. J.P. Joshi, Advocate accepts notice on behalf of the respondent nos. 1 to 3. 6. Learned counsel for the respondents states, that it is not necessary to file a counter affidavit in response to the averments made in the present Writ Petition, in view of the fact that a pure question of law has been canvassed at the hands of the learned counsel for the appellant. He, accordingly, states that an opportunity of hearing be afforded to him and the matter be adjudicated upon finally today itself. 7. During the course of hearing, learned counsel for the respondents has placed reliance on Rule 23 of the Punishment and Appeal Rules, 1991, which envisages the remedy of a Revision, after an employee similarly situated as the petitioner has availed of the remedy of Appeal. Based thereon, it is the submission of the learned counsel for the respondents, that a further alternative remedy of Revision was available to the petitioner, and as such, it was imperative on the petitioner to avail of the same before approaching the Uttarakhand Public Services 3 Tribunal. Having not done so, the Uttarakhand Public Services Tribunal was fully justified in passing the impugned order dated 22.6.2010 relegating the petitioner to the revisional remedy envisaged under Rule 23 of the Punishment and Appeal Rules, 1991. 8. We have given our thoughtful consideration to the rival contentions advanced by the learned counsel for the parties. We are satisfied, that the proceedings before the Public Services Tribunal can be initiated, even in a situation when an employee has not availed of any of the remedies. The tenor of Section 4, however, is to the effect that the particular employee must first avail of the alternative remedies available to him before approaching the Tribunal. Despite thereof, Sub-Section (6) of Section 4 of the U.P. Public Services (Tribunal) Act, 1976 has to be given meaning and effect. Sub-section 6 expressly envisages that an employee desirous of approaching the Public Services Tribunal, who has availed of the appellate remedy, and the Appellate Authority has passed an order disposing of the appeal preferred by him, will be deemed to have “…availed of all the remedies available to him…”. If Sub Section (6) of Section 4 of the U.P. Public Services (Tribunal) Act, 1976 has to be given effect to, there is no other alternative, but to conclude that an employee, who has availed of the appellate remedy and has obtained an order thereon, will be deemed to have exhausted all the alternative remedies available to him under the existing service rules. S 9. Since the petitioner herein had availed of the appellate remedy, wherein the Appellate Authority had dismissed his appeal vide order dated 22.12.2009, we are satisfied, that the action of the petitioner raised before the Tribunal by preferring a Claim Petition could not have been rejected, merely on the basis that yet another alternative remedy in the nature of a Revision Petition was available to him under Rule 23 of the Punishment and Appeal Rules, 1991. 10. For the reasons recorded hereinabove, the impugned order passed by the Uttarakhand Public Services Tribunal dated 22.6.2010 (Annexure-2) is hereby set aside. The rival parties are directed to appear before the Uttarakhand Public Services Tribunal through counsel on 28.7.2010. The Uttarakhand Public Services Tribunal shall, at its 4 convenience, take upon and adjudicate upon the controversy raised by the petitioner, on merits, in accordance with law. 11. The instant Writ Petition is allowed in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 28.6.2010 Rathour