S. K. MAL LODHA, J - (1.) IN this petition under Art. 226 of the Constitution of INdia, the petitioner seeks to quash the order (Ex. 5) dated May 18, 1979 passed by the Divisional Engineer (E), Northern Railway, Jodhpur, by which, he was removed from service with effect from June 8, 1979.
(2.) A case under sec. 3 of the R. P. (U. P.) Act, 1966 was registered against the petitioner by the Railway Protection Force, Sujangarh. He was implicated as a co-accused and challaned. After trial, he was convicted by the Judicial Magistrate, (Railway), Bikaner vide his judgment dated November 18, 1978 and sentenced to one years' rigorous imprisonment and a fine of Rs. 1,000/ -. Vide Memorandum (Ex. 3) dated February 13, 1979, he was asked to show cause as to why be should not be removed from service under r. 14 (1) of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short 'the Rules' hereafter ). He submitted his reply explaining the whole position. Thereafter, by his order (Ex. 5) dated May 18, 1979, the Divisional Engineer (E) Northern Railway, Jodhpur removed him from service The copy of the aforesaid order was served on the petitioner on June 8. 1979. Being aggrieved by the aforesaid order, he has filed this writ petition for quashing it. Against his conviction and sentence, the petitioner preferred an appeal before the Sessions Judge, Bikaner. In the writ petition, he has stated that during the pendency of the appeal against his conviction and sentence, the order removing him from service is bad in law. Apart from this, it was also stated that he could not be removed from service merely on the basis that he was convicted by a criminal court. The writ petition is contested on behalf of respondent No. 2 viz. , the Divisional Engineer (E), Northern Railway, Jodhpur on various grounds. Suffice it to state that one of the objections is that under r. 18 of the Rules, the petitioner was informed vide order (Ex. 5) that it is appealable and that the appeal lay against that order to the Senior Divisional Engineer, Northern Railway, Jodhpur within 45 days of the receipt thereof and that as the petitioner had another equally efficacious alternative remedy, the writ petition is not maintainable. In the additional pleas, it was stated that in fact, the petitioner had filed an appeal against the order (Ex. 5) and that appeal was decided on August 29, 1979 and, therefore, the order (Ex. 5) has now merged into the order of the appellate authority and so he cannot challenge the order (Ex. 5) in this writ petition as it no more survives. Learned counsel for the petitioner has filed certified photostat copy of the appellate judgment dated January 14, 1980 passed in criminal Appeal No. 110 of 1978, which was lodged by the petitioner against his conviction and sentence to show that the petitioner has been acquitted. I have heart Mr. M. L. Shreemali, learned counsel for the petitioner and learned counsel appearing on behalf of respondent No. 2. It is not in dispute, now, that the petitioner has been acquitted. The writ petition was filed on June 11, 1979 challenging the order (Ex. 5) dated May 18,1979. It was admitted on June 12, 1979. According to respondent No. 2, the appeal preferred against the order (Ex. 5) was decided on August 29, 1979. Reply to the writ petition was filed on October 6, 1979.
(3.) IN L. Hirday Narain vs. I. T. O. , Bareilly (1) an order was made under sec. 31 of the INcome Tax Act, which was not appealable, but against that revision could be preferred before the Commissioner, INcome Tax. The person against whom, the order was passed, moved a petition before the Allahabad High Court. The High Court entertained that petition. IN those facts, it was observed by their Lordships of the Supreme Court as under : "we are unable to hold that because a revision application could have been moved for an order correcting the order of the INcome-Tax Officer under sec. 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. " The objection that the petitioner had an alternative remedy under r. 18 of the Rules does not survive when the writ petition had already been admitted and heard on the merits. Learned counsel for respondent No. 2, next contended that the appeal was preferred and decided as is borne out from the additional pleas on August 29, 1979 and that a copy of the order was sent to the petitioner and as the order (Ex. 5) has merged into the order of the appellate authority, it no more survives (. and cannot be challenged. Regarding merger of the original order into appellate order, he invited my attention to the decisions of Collector of Custom vs. East India Commercial Co. (2), Board of Muslim Wakf, Rajasthan vs. Mohammed Ayub (3), Samuhik Krishi Sahakari Samiti Ltd. Kundalgarh vs. Sajjan Singh (4) and Abdul Rehman vs. Dhori Bai (5 ). It is not necessary to encumber this judgment by examining these cases, for the principles laid down therein have not been disputed. On behalf of respondent No. 2, the copy of the appellate order has not been filed and only a statement was made in the reply that the appeal has been decided. What is the operative part of the appellate order has not been disclosed by respondent No. 2. The appeal was decided such after filing of the writ petition and before the decision of the criminal appeal against convic-tion and sentence. Be that as it may, the question whether the petitioner was rightly removed from service on the basis of the conviction can still be gone into in this writ petition. In Gulraj Khatri vs. State S. B. Civil Writ Petition No. 1127 of 1976, decided on July 7, 1976) Joshi, J. observed as follows: "it is settled position of law that when the conviction is challenged by way of appeal, proceedings of dismissal cannot be taken on that ground till the matter is finally decided by the competent court" (Italic is mine.) ;