Statutory appellate remedy must be pursued, with delayed appeals considered sympathetically on merits.

The petitioner, a Revenue Karamchari, challenged Memo No. 1672 dated 22 August 2019, by which he was reinstated pursuant to the High Court’s earlier order dated 31 January 2019 in CWJC No. 1397 of 2017, but subject to conditions that the period of dismissal would not count as Government service, reinstatement would remain dependent upon the result of Vigilance P.S. Case No. 56 of 2012, and he would receive only the salary payable before dismissal without any additional amount

The petitioner contended that the disciplinary proceeding conducted by the District Magistrate, Araria-cum-Disciplinary Authority violated the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 (“Rules, 2005”), that the impugned order was inconsistent with the earlier order of the High Court, and that the principle of parity in punishment had not been followed.

The State opposed the writ petition on the ground that the impugned order was appealable and that the petitioner had a statutory remedy under Rule 23 of the Rules, 2005. It also pointed out that the appeal was subject to the limitation period prescribed under Rule 25.

1. Whether the petitioner should be relegated to the statutory appellate remedy under Rule 23 of the Rules, 2005 against the disciplinary order?

2. Whether the petitioner could challenge the 2019 disciplinary order by filing an appeal accompanied by an application for condonation of delay, notwithstanding the limitation period under Rule 25 of the Rules, 2005?

3. Whether the appellate authority should consider the petitioner’s challenges concerning violation of the Rules, 2005, inconsistency with the earlier High Court order, non-proof of charges, and disparity in punishment?

The Court applied Rule 23 of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005, which provides a statutory appellate remedy against an order passed by the disciplinary authority.

It also applied Rule 25 of the Rules, 2005, under which the appeal is ordinarily required to be filed within 45 days.

The Court followed the principle that where an efficacious statutory remedy is available, the writ petitioner should ordinarily pursue that remedy, while permitting the competent appellate authority to consider a properly supported application for condonation of delay.

The Court noted that the petitioner’s challenge involved the legality of the disciplinary proceeding, the alleged non-compliance with the Rules, 2005, the effect of the earlier High Court order, and the proportionality and parity of punishment.

Since Rule 23 provided a specific appellate remedy against the order of the District Magistrate-cum-Disciplinary Authority, the Court declined to examine the merits of those grounds directly in the writ proceeding.

Although the prescribed period for filing an appeal under Rule 25 was 45 days and the impugned order was dated 22 August 2019, the Court permitted the petitioner to file the appeal along with an application for condonation of delay.

It directed the Divisional Commissioner to consider the delay sympathetically and to decide the appeal on merits, including all grounds raised before the High Court.

The petitioner was granted liberty to file an appeal under Rule 23 of the Rules, 2005, together with an application for condonation of delay under Rule 25.

The Divisional Commissioner, Purnea Division, was directed to consider the delay sympathetically and decide the matter on merits, preferably within eight weeks from receipt or production of a copy of the order.

The petitioner was permitted to raise all grounds urged before the High Court, which the appellate authority was directed to consider.