Claim petition after exhausting all the statutory and legal remedies available under the Rules

Rule-4(5) of the U.P. Public Services (Tribunal) Act, 1976 provides that 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 grievances.

Rule-4(6) provides that 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 any appeal preferred or representation made by such public servant in connection with the grievance:

The proviso of the above Rule 4 (6) is reproduced as under for clarifying the legal position in a lucid manner:-

"Provided that where no final order is made by the State Government authority officer or other person competent to pass such order with regard to the appeal preferred or representation made by such public servant within six months from the date on which such appeal was preferred or representation was made, the public servant may, by a written notice by registered post, require such competent authority to pass the order and if the order is not passed within one month of the service of such notice, the public servant shall be deemed to have availed of all the remedies available to him."

Rule-4(7) provides that any remedy available to the public servant by way of submission of a memorial to the Government or to any other functionary shall not be deemed to be one of the remedies, which are available unless the public servant had elected to submit such memorial.”

From the perusal of the Sub Rule-4,5,6,7 of rule 4 it becomes clear that the Tribunal shall not ordinarily admit a claim petition unless the public servant has availed all the remedies available to him under the relevant service rules for example Rule 11 of U.P. Government Servant (Discipline and Appeal) Rule 1999 provides for appeal to the next higher authority from an order passed by the disciplinary, authority. This right of appeal is only available to those Government servants regarding which the orders have not been passed by the Governor. The appeal shall be preferred within 90 days from the date of communication of the punishment order or the original order. It has been further provided in Rule 11(4) that an appeal preferred after the said period, shall be dismissed summarily. Rule 13 of the said rule provides for revision and Rule 14 provides a provision of review, but as discussed above where an order has been passed by the governor no statutory remedy by way of appeal, revision or review is legally permissible and therefore, if the order has been passed by the Principal Secretary or Secretary of the Government on behalf of the Governor then the petition should be filed within one year from the date of knowledge of this final order. The remedy of appeal under section 11 is also available to those employees whose appointing authority is other than the governor. The crux of the whole discussion with regard to availing of statutory remedy is that the revision and review as provided under rule 13 & 14 of the rules of 1999 cannot be availed as an statutory remedy as a matter of right but if the revision or review have been entertained and disposed off by an order by the government or the governor then it may provide a fresh cause of action to the employee.

U.P. police officers of the subordinate Ranks (punishment & Appeal) Rules 1991 provides for appeal and revision against the original punishment order as a statutory remedy. If a public servant have filed an appeal within time and it has not been disposed of within 6 months of its filing then after giving one month legal notice requesting the competent authority to pass an order on his appeal or revision the public servant can file the claim petition. The problem arises where the claim petition is filed by the subordinate police officers governed by rules of 1991 after availing one of the several remedies provided under the rules and different views are taken by different benches in the Tribunal. One view is that unless all the remedies have been exhausted by the public servant the claim petition should not be admitted because they are premature. In such type of cases, sometimes in order to ensure justice the Tribunal disposes off the claim petition finally at the admission stage by issuing directions to the competent authority to dispose off the pending appeal revision or representation within a fixed time frame work. If the time prescribed under the rules for availing the next statutory remedy is still available and a premature claim petition has been filed, the Tribunal may either dismiss the claim petition as premature and if one of the statutory remedy as provided under the rules has been availed and the matter is urgent, the petitioner can file the claim petition showing the urgency.

A matter came before the division bench of the Allahabad High Court in Shyam Kumar Singh Vs. U.P. Public Service Tribunal in writ petition No. 982/2012 decided on 5.7.2012 where in the Tribunal had dismissed the claim petition of the petitioner on the ground that he had not availed the statutory alternative remedy of revision. While interpreting the word "Ordinarily admit reference" Occurring under Rule 4(5) of U.P. Public Service Tribunal Act 1976, the court held that the statutory remedy of appeal was availed and the claim petition was admitted in 2009 but the same was dismissed in 2012 on the ground that the petitioner had not availed the remedy of revision. The High Court did not find it proper and held that the claim petition ought not to have been dismissed on the ground that the petitioner had not availed the revisional remedy, more so when it was admitted after availing the statutory remedy of appeal.

The High Court has held that the word "Ordinarily" does not means "Always" meaning thereby that if a petitioner makes out an exceptional case of urgency and approaches the Tribunal after availing at least one of the statutory remedy then the Tribunal may admit the claim petition and decide it on merits. The matter regarding entertaining the claim petition on the ground of availing all the remedies can be summarized as under:-

A Claim petition should ordinarily be admitted after the public servant had availed all the statutory remedies provided under the relevant rules applicable to him but if in an exceptional case the petitioner files the claim petition disclosing cogent and compelling reasons for approaching the Tribunal after availing one of the statutory remedies, the Tribunal may admit the claim petition after recording reasons and it should not be thrown away on the ground of non availing of all the statutory remedies.

To recapitulate it can be summarized that the employee governed by rules of 1999 is under legal requirement to avail the remedy of appeal and the employees governed by 1991 Rules is required to avail the remedy of appeal and revision both against the original order or the punishment order and file the claim petition within one year from the date of communication of the final order. The Tribunal is under legal obligation to scrutinize the point of maintainability of a claim petition, at the time of admission itself whether the petition is premature on the ground of non availability of all the statutory remedies or whether the petition is liable to be admitted if filed by a petitioner after availing one of the statutory remedy of appeal showing the exceptional case of urgency for not availing the next statutory remedy of revision, but once the petition has been admitted and the pleadings have been exchanged then it is just and proper that the claim petition should be decided on merits. The settled view of the Hon'ble High Court in different case laws is that a petition if admitted should not be dismissed on technical grounds after keeping it pending for several years but with regard to the time barred claim petition the view of the Hon'ble High Court is very much clear that such type of petition should not be admitted and even if they have been admitted subject to limitation and the pleadings have been exchanged then since the point of limitation touches the root of jurisdiction the point of limitation should be addressed, first. The claim petition can be dismissed on the point of limitation despite the exchange of pleadings between the parties.