Calcutta High Court
WP.CT/164/2026 of TAPAN KUMAR DEY AND ANR Vs UNION OF INDIA AND ORS. on 24 September 2026
Ct. No. 1 RP IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPCT 164 OF 2026 1) TAPAN KUMAR DEY Son of Late Durgapada Dey, aged about 62 years, ] by occupation-Unemployed, residing at village- ] Becharhat Colony, P.O. Sripally, PS- Barddhaman, ]
WBCHCA0351822026
Item No.18
Ct. No. 1
RP
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
WPCT 164 OF 2026
1) TAPAN KUMAR DEY
Son of Late Durgapada Dey, aged about 62 years, ]
by occupation-Unemployed, residing at village- ]
Becharhat Colony, P.O. Sripally, PS- Barddhaman, ]
District-Barddhaman (Purba), PIN-713103 ]
2) Madhurima Dey
daughter of Sri Tapan Dey, aged about 62 years, ]
by occupation-Unemployed, residing at village- ]
Becharhat Colony, P.O. Sripally, PS- Barddhaman, ]
District-Barddhaman (Purba), PIN-713103 ] …..Petitioners
versus
1) Union of India, service through the General Manager, ]
Eastern Railway, Fairlie Place, 17, Netaji Subhas Road, ]
Kolkata-700001. ]
2) The Divisional Railway Manager, Eastern Railway, ]
Howrah Division, P.O. Howrah, District-Howrah, ]
PIN-711001. ]
3) The Dy. Chief Engineer Construction (II), ]
Eastern Railway, Howrah Division, P.O. Howrah, ]
District-Howrah, PIN-711001 ] … Respondents
Appearance:
Mr. Nandadulal Bandyopadhyay
Mr. Mahadeb Ghosh
...Advocate for Petitioners
Mr. Swapan Kumar Nandi
Ms. Banani Bhattacharya
...Advocate for UOI
CORAM: RAVINDRA VITHALRAO GHUGE,
CHIEF JUSTICE
&
OM NARAYAN RAI J.
Date :24.09.2026
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JUDGMENT
( Per Ravindra V. Ghuge, CJ)
1. Rule. Rule is made returnable forthwith and heard finally by consent of the parties.
2. We have heard the learned Counsel for the respective sides and have gone through the Petition Paper Book.
3. The Learned Advocate for Petitioners/Original Applicants before the Central Administrative Tribunal submits that the learned Advocate of the Applicants noticed certain errors in the Original Application. He conceded that there is an error on his part. While addressing the Court on 19.02.2026, he sought permission to withdraw the Original Application. This was an oral request.
4. In view of the above, the Applicants preferred a fresh Original Application, bearing No.378 of 2026. By a speaking order dated 20.03.2026, the Tribunal recorded that the earlier Original Application was withdrawn. The Respondents contend that no liberty was granted by the Tribunal to file a fresh Original Application in the same cause and, therefore, the subsequent Original Application was not maintainable. Since he noticed certain errors, he sought leave to withdraw the Original Application. The Tribunal disposed off the Original Application as withdrawn. It is a mistake of the Counsel for Applicants that he did not mention that the Applicants desired leave to file a fresh Original Application.
5. The learned Advocate for the Eastern Railway has vehemently contended that there was no impediment for the Applicants to pray for leave to file a fresh Original Application. Had such a prayer been made, the Tribunal would have considered such prayer. The Applicants chose not to make such a request and invited a fresh order for disposal of the Original Application on instructions. This indicates that Applicants did not want to prosecute the Original Application. He, therefore, submits that the impugned order of the Tribunal is not illegal and cannot be set aside. He vehemently submits that this Petition is misconceived and should be dismissed with heavy costs.
6. We find that the purpose for withdrawal of the first Original Application was because there was some error. If the learned Advocate for Applicants committed a further error of not seeking permission from the Tribunal to file a fresh Original Application, the litigant would suffer an irreparable loss.
7. It is trite that a party, who seeks withdrawal of a proceeding, should seek leave of the Court to file a fresh proceeding in the same cause. Order XXIII of the CPC contains a Chapter ‘Withdrawal and Adjustment of Suits’. Sub-Rule 3 of Order XXIII states that where the Court is satisfied that a suit must fail by reason of some formal defect, may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim.
8. It is obvious that the Advocate for the Applicants brought it to the notice of the Tribunal that he desired to withdraw the Original Application because there was an error on his part. He took the blame of such error. Unfortunately, the Advocate did not refer to Order XXIII Rule 1 of the CPC and make a request to the Tribunal to grant leave to file a fresh Original Application in the same cause.
9. The fact situation before us is that a litigant would lose a precious and valuable right of challenging the purported illegal act of an Employer, on account of a mistake committed by a lawyer and a lawyer’s mistake should not result in jeopardizing the legal right of a litigant. We are, therefore, of the view that this case has to be dealt with pragmatically and a lenient view has to be taken, otherwise a litigant, for no fault on his part, would lose a valuable right of knocking the doors of the Court as against a purported act of injustice.
10. In view of the above, this Petition is allowed. The impugned order dated 23.03.2026 is quashed and set aside. Original Application No.378 of 2026 shall stand restored to the file of the learned Central Administrative Tribunal, Kolkata Bench.
11. The parties before us are at liberty to take a print out of this order from the official website of the High Court at Calcutta and produce the same before the learned Tribunal, and cause an appearance before the Tribunal on 14th October, 2026.
12. Rule is made absolute in the above terms. (OM NARAYAN RAI, J.) (RAVINDRA V. GHUGE) Chief Justice