T. K. RABARI v. STATE — 1988 DIGILAW 65 (GUJ)

A. P. RAVANI, J. ( 1 ) CAN existence of escape route such as emergency exit door or safety valve ever be pleaded as a ground for using the escape route as a State Highway or National Highway ? This in short is the question which arises in this petition. In spite of the fact that there is alternative remedy by way of appeal the petitioner insists that this High Court should exercise its power under Art. 226 of the Constitution of India. ( 2 ) THE petitioner was serving as a Field Assistant with respondent No. 2-Corporation. He has been ordered to be removed from service by order dated 15/12/1986 produced at Annexure-L to the petition. It was alleged that in past when the petitioner was at Chuda Sheep Extension Centre he was served with show-cause notice to explain As to why his services should not be terminated on account of frequent absence and irregularities. The petitioner was given an opportunity of being heard and ultimately as per order referred to hereinabove his services have been terminated. This order is challenged by filing petition under Art. 226 of the Constitution of India. ( 3 ) THERE is no dispute with regard to the fact that the order can be challenged before the appropriate appellate authority constituted under the relevant provisions of the Rules and Regulations of respondent No. 2 But it is submitted that the impugned order is a nullity and therefore this High Court should entertain the petition and should not reject the same on the ground of alternative remedy by way of appeal available to the petitioner. It is submitted that a copy of the report of the Extension Officer was not supplied to the petitioner. In his submission there was no inquiry and therefore it should be held that the order is passed without holding any inquiry against the petitioner and hence it is a nullity. Looking at the impugned order it cannot be said that there was no inquiry. If appears that the show-cause notice was served upon the petitioner. Thereafter there were some proceedings. Whether the inquiry was in conformity with the principles of natural justice and in conformity with the relevant provisions of the Rules and Regulations applicable to the inquiry in question of fact. If appears that the show-cause notice was served upon the petitioner. Thereafter there were some proceedings. Whether the inquiry was in conformity with the principles of natural justice and in conformity with the relevant provisions of the Rules and Regulations applicable to the inquiry in question of fact. To arrive at a conclusive decision as to whether the inquiry is in contravention of the principles of natural justice or in contravention of the provisions of the Rules and Regulations one is required to examine the facts of the case. Ex fact the impugned order does not indicate that no inquiry whatsoever was held and the order is passed in contravention of the principles of natural justice or in contravention of the provisions of the relevant Rules and Regulations. Therefore the contention that the order is a nullity cannot be accepted without further examination of the facts of the case. It is submitted that even when some examination of facts are necessary by this Court that course may be adopted in this case because ultimately if it is found that the impugned order is a nullity no useful purpose will be served by directing the petitioner to go before the appellate authority. In the submission of the learned Counsel for the petitioner the remedy by way of appeal cannot be said to be efficacious and therefore the petition be entertained. The aforesaid contention cannot be accepted. ( 4 ) WRIT jurisdiction under Art. 226 of the Constitution of India is to be exercised sparingly by the High Court much more so when alternative remedy is provided by the legislature and it is available to the petitioner. In the scheme of our Constitution Court is sentinel of the fundamental rights of the people. Court has to safeguard the fundamental rights of the people. This is the bounden duty of the Court. But at the same time pragmatic considerations demand that certain restraints be exercised by the Courts themselves in exercise of these extra clearly powers under Art. 226of the Constitution of India. If this is not done the system itself would collapse. The care which the Court should take is that while exercising this restraint the object of safeguarding the fundamental rights of the citizens should not be frustrated. If this is not done the system itself would collapse. The care which the Court should take is that while exercising this restraint the object of safeguarding the fundamental rights of the citizens should not be frustrated. It may be that while directing a citizen to avail of the alternative remedy he may be put to some more hardship or he may have to wait for a little more time but that cannot be treated as a ground for exercising extraordinary powers under Art. 226 of the Constitution of India. Following aspects are required to be kept in mind while entertaining a matter under Art. 226 of the Constitution of India; even when there is alternative remedy: (A) It should not be forgotten that powers under Art. 226 of the Constitution of India are to be exercised sparingly and the remedy of petition under Art. 226 has not been devised by the framers of the Constitution as an alternative forum for redressal of grievances of the citizens which arise in normal working of the Government and/or statutory corporations. The very phrase extraordinary remedy suggests that it is not to be resorted to for which ordinary remedy is available. (B) The legislature privation for alternative remedy by making necessary provisions in the relevant statute or in the relevant Rules and Regulations. The object of making this provisions is to see that the persons governed by the statues and/or the relevant Rules whenever adversely affected have a royal road to proceed further for redressal of their grievances. Be it noted that in certain cases not providing for appeal may be a ground for striking down the relevant provisions of the Statute or Rules. Therefore the fact that the legislature provides for appeal should be given due weight and ordinarily a litigant should not be permitted to bypass this remedy on the supposed ground of delay and/or some hardship. (C) It is true that availability of alternative remedy is nothing but a rule of convenience. For the sake of convenience the Court may refuse to exercise jurisdiction on the ground of alternative remedy. Similarly for the convenience the Court may exercise extraordinary jurisdiction under Art. 226 even when an alternative remedy is available But this does not mean that this rule of convenience is to be invoked in all cases. For the sake of convenience the Court may refuse to exercise jurisdiction on the ground of alternative remedy. Similarly for the convenience the Court may exercise extraordinary jurisdiction under Art. 226 even when an alternative remedy is available But this does not mean that this rule of convenience is to be invoked in all cases. On the contrary in the present day circumstances when the High Court is flooded with thousands of petitions under Art. 226 of the Constitution of India and when there is heavy backlog of cases awaiting decision the very rule of convenience demands that the litigant be shown their regular channel before they make an attempt to seek order through the extraordinary emergency exit gate or escape route provided by way of petition under Art. 226 of the Constitution of India. A University Professor who works as a Guide for Ph. D. students can certainly said to be well qualified to do the work of a Primary School Teacher. That does not mean that Professors imparting lessons at the post-graduate and Ph. D. level also should be entrusted the work of training the pupils of primary school. There is a world of difference between can and should. Simply because the High Court can entertain a petition it does not mean that in all cases the High Court should entertain such matters. If this distinction is not borne in mind and the ordinary channels for redressal of the grievances of the citizens are not allowed to be fully utilised as intended by the legislature the emergency gate or escape routes would very probably burst out leading to chaos in the system. Therefore the rule of convenience demands that the litigants be not allowed to bypass their normal channel and be not permitted to use the emergency gates and/or escape routes as an ordinary passage. (D) In this connection reference may be made to the observations made by me in the case of nullity Steels and Forgings Ltd. v. Gujarat Electricity Board and Anr. 29 GLR 165 which reads as under:"it is true that existence of alterative remedy does not create absolute bar against entertaining a petition under Art. 225 of the Constitution. (D) In this connection reference may be made to the observations made by me in the case of nullity Steels and Forgings Ltd. v. Gujarat Electricity Board and Anr. 29 GLR 165 which reads as under:"it is true that existence of alterative remedy does not create absolute bar against entertaining a petition under Art. 225 of the Constitution. But it cannot be forgotten that resort to jurisdiction under Art. 226 of the Constitution of India is not intended as an alternative remedy for relief which may be obtained by pursuing the course prescribed under a statute Wherever it is upon to an aggrieved person to move another authority prescribed under the relevant provisions of the statutes it would not be proper for the High Court to entertain petition under Art. 226 or the Constitution of India. To do so would amount to permitting a party to by pass the machinery created by the statutes. . . . . . . . . . . . . The dangers of adopt g such a course cannot be ignored. However industrious intelligent and able assistance may be received by the High Court in a petition under Art. 216 of the Constitution of India the very nature of the proceedings have their limitations. "be it noted that on account of the expertise and the vast experience which the concerned appellate authority would have gained that which could be done by the appellate authority within an hour or so may not be achieved by the High Court even after investing time for days together. Thus even on account of pragmatic considerations it is neither wise nor proper to entertain a petition for resolving the disputes for which separate machinery has been created by a statute itself or under the relevant provisions of the rules. ( 5 ) THE learned Counsel for the petitioner relied upon the decision of the Supreme certain the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidayalaya Sitapur and Others AIR 1987 SC 2186 In that case the Vice Chancellor of the University had taken the matter in review and had passed the order which was challenged before the High Court. The High Court refused to entertain the petition under Art. 226/227 of the Constitution of India. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidayalaya Sitapur and Others AIR 1987 SC 2186 In that case the Vice Chancellor of the University had taken the matter in review and had passed the order which was challenged before the High Court. The High Court refused to entertain the petition under Art. 226/227 of the Constitution of India. In this context the Supreme Court observed that the High Court should not have refused to entertain the petition because the Vice Chancellor had no jurisdiction whatsoever to take the matter in review and thereafter pass the order. In the facts and circumstances of the case it was apparent that the order passed by the Vice Chancellor was a nullity being without jurisdiction. In the instant case that is not the situation. Therefore the observations made in the aforesaid Supreme Court decision do not apply to the facts and circumstances of the present case. ( 6 ) THE learned Counsel for the petitioner also relied upon the decision of this High Court in the. case of Last India Co. v. Official Liquidator of Rajratna Naranbhai Mills Pvt. Ltd. and another 11 GLR 457 True the principles laid down in the maxim Audi Alteram Partem are essential part of natural justice as held by this High Court in the aforesaid decision. But whether the aforesaid principles have been observed or not is a question of fact. This can very well be examined in appeal. Therefore the principle laid down in the aforesaid decision does not apply to the facts and circumstances of this case. ( 7 ) THE learned Counsel for the petitioner relied upon the decision of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. Income-tax Officer Companies District I Calcutta and Another AIR 1961 SC 372 . It was a case under the Income-tax Act. Therein contention was raised that certain question can be raised before the Income tax Officer and it can be shown as to whether the Income-tax Officer had reason to believe before taking action against the Company. In the context of the provisions of the Income-tax Act the Supreme Court observed that the existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ of order prohibiting an authority acting without jurisdiction from containing such action. In the context of the provisions of the Income-tax Act the Supreme Court observed that the existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ of order prohibiting an authority acting without jurisdiction from containing such action. In the aforesaid extracted portion of the Supreme Court decision underlined words always a sufficient reason and acting without jurisdiction are very important. In the instant case it cannot be said that the disciplinary authority had no jurisdiction whatsoever against the petitioner and that the appellate authority cannot go into the questions which are sought to be raised in this petition. Therefore reliance placed on the aforesaid Supreme Court decision also does not help the petitioner. In above view of the matter as the petitioner has alternative remedy by way of appeal the petition is not required to be entertained here. ( 8 ) IN the facts and circumstances of the case it is directed that if the petitioner prefers appeal latest before 30/04/1988 the same shall be entertained without raising any objection as to limitation. Thereafter the appeal shall be decided expeditiously and decision thereon shall be rendered preferably within a period of six months from the date of filing of the appeal. If the decision is not rendered within a period of six months from the date of filing of the appeal it will be open to the petitioner to approach this High Court and seek appropriate direction. Subject to the aforesaid observations and directions rejected. Notice discharged. Rule discharged. .