- (1.) THE petitioners in these two Rules were the employees of the North Eastern Frontier railway and both were posted at the locoshed, Alipurduar Junction. The divisional Mechanical Engineer, alipurduar Junction, North Eastern Frontier railway, by two memoranda dated 16th march, 1971 informed the petitioners that upon a careful consideration of the charge-sheets issued against them and also their explanations to the notices of imposition of the proposed penalties, he had held that the charges of serious misconduct had been proved. The divisional Mechanical Engineer, North eastern Frontier Railway, accordingly removed the petitioners from their services. The petitioners in these two rules have, inter alia, prayed that the respondents be commanded to cancel and withdraw the said removal orders and that the said orders removing them from service be quashed.
(2.) WHILE these two Rules were pending, section 38 of the Constitution (Forty Second Amendment) Act, 1976 came into force with effect from 1st february, 1977. Therefore, the previous article 226 now stands substituted by a new Article. Clause (3) of the new article 226 provides that no petition for the redress of any injury in sub-clause (b) or sub-clause (c) of clause (1) of article 226 shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force. Mr. Ajoy Kumar Basu, learned Advocate for the respondents has submitted that in view of section 58 (1)of the Constitution (Forty second Amendment) Act, 1976, these two petitions under Article 226 of the Constitution should be now dealt with in accordance with the provisions of Article 226 a substituted by section 38. Mr. Basu had further submitted that the relevant Discipline and Appeal rules provide for appeals against the impugned orders removing the petitioners from service. Therefore, if these writ petitions were made after the appointed day, i. e. 1st of February 1977, these two writ petitions would no. 1 have been entertained. According to Mr. Basu these two writ petitions, therefore, are liable to abate in terms of section 58 (2) of the constitution (Forty Second Amendment) Act, 1976.
(3.) MR. Gupta, learned Advocate for the petitioners, has not disputed that if these writ petitions are to be dealt with in accordance with the provisions of Article 226 as substituted by section 38 of the Constitution (Forty second Amendment) Act, 1976, these writ petitions would abate. Mr. Gupta however, has submitted that Section 58 of the Constitution (Forty Second amendment) Act, 1976 is not valid because the Section 58 seeks to override the Article 226 of the Constitution which is not permissible under Article 368 of the Constitution.;