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1988 DIGILAW 813 (RAJ)

Nathu Singh v. Rajasthan State Roadways Transport Corporation

1988-11-17

M.C.JAIN

body1988
JUDGMENT 1. - This writ petition has been filed for quashing the order (Anx. 4) dated May 4, 1985 of the Regional Manager, Rajasthan State Road Transport Corporation (hereinafter referred to as 'the Corporation), Jodhpur (Respondent No. 3) by which the petitioner has been dismissed from the service. The facts of the case may be summarised thus. 2. The petitioner was appointed as a conductor by the Regional Manager, Bikaner, in the year, 1979. In the year 1982, he was served with a charge-sheet (Anx. 2) by the Regional Manager, Corporation, Jodhpur. He moved an application (Anx. 3) on July 12, 1982 requesting him for providing copies of the relevant documents or to allow their inspection to enable him to file the reply of the charge-sheet. Neither the copies of the desired documents were supplied nor their inspection was allowed to him. As such he could not file the detailed reply to the charge-sheet. The respondent No. 3 appointed Enquiry Officer and he proceeded ex parte against him. He was not supplied a copy of the enquiry report. The respondent No. 3 passed the order (Anx. 4), dismissing him from the service, agreeing with the enquiry report. On knowing the order (Anx. 4), appeal (Anx. 5) was filed by him before the General Manager, Corporation, Jaipur (respondent No. 2). He moved application (Anx. 7) before him for the early disposal of his appeal. The appeal is still pending. 3. It has been contended by the learned Counsel for the petitioner that the petitioner could not file the reply to the charge-sheet as he was neither provided with the copies of the relevant documents, nor their inspection was allowed to him despite oral and written requests and he was greatly prejudiced. He further contended that the Disciplinary Authority passed the order (Anx. 4) dismissing the petitioner without providing its copy to the petitioner, his order is not a speaking order and it simply contains that he agrees with the enquiry report. He lastly contended that petitioner's appeal has not so far been decided despite his written request for its early disposal and the petitioner is out of employment since them. 4. In reply, it has been contended by the learned Counsel for the respondents that the documents desired by the petitioner were prepared by him, he was well aware with them and neither their copies nor their inspection was necessary. 4. In reply, it has been contended by the learned Counsel for the respondents that the documents desired by the petitioner were prepared by him, he was well aware with them and neither their copies nor their inspection was necessary. He further contended that the petitioner did not participate in the enquiry despite several notices and its order (Anx. 4) is a speaking order. He lastly contended that the writ petition is not maintainable as the petitioner has availed the alternative remedy by filing an appeal against the order (Anx. 4). 5. It is clearly admitted by the respondents in their reply to the writ petition that the copies of the documents referred to in the charge-sheet (Anx. 2) were neither supplied nor their inspection was allowed to the petitioner. It is not denied in the reply that the enquiry report was not given before the order (Anx. 4) was passed by the respondent No. 3, dismissing the petitioner from the service. It is also not denied in the reply that the appeal against the order (Anx. 4) has not been decided so far. It is simply stated in the order (Anx. 4) that the Enquiry Officer found all the three charges proved against the petitioner on the basis of the oral evidence of Sri Shrikrishna Agrawal, accountant and the documents produced before him and he agreed with the conclusions of the Enquiry Officer. It is well settled law that no document can be read against a charge-sheeted person unless its copy is provided or its inspection is allowed to him. For filing reply to the charge-sheet, the inspection of the documents relied upon in the charge-sheet was necessary though they were prepared by the petitioner himself. The dismissal order (Anx. 4) has been passed on the basis of the enquiry report. It has not been passed on independent examination of the evidence on record. As such supply of a copy of the enquiry report was necessary for proper drafting of the memorandum of appeal. The non-supply of the copies of the documents relied upon in the charge-sheet and the enquiry report to the petitioner has seriously prejudiced him. The principles of natural justice have been violated. On this ground alone, the dismissal order (Anx. 4) deserves to be quashed. 6. It is correct that the petitioner has availed of the alternative remedy by filing appeal (Anx. The principles of natural justice have been violated. On this ground alone, the dismissal order (Anx. 4) deserves to be quashed. 6. It is correct that the petitioner has availed of the alternative remedy by filing appeal (Anx. 5) against the dismissal order (Anx. 4). It is clear from the memo of appeal and the certificate of posting (Anx. 6) that die appeal was filed in May, 1985 before the General Manager, Corporation, Jaipur (respondent No. 2). Admittedly, the appeal has not been decided so far. It has been observed in Hammer Metal Karamchari Union v. M/s. Metal India Products, L.I. Cases 92 (All.) as follows : "6. Learned Counsel for the plaintiff respondent has contended that the petitioners are not entitled to any relief as they had already availed of the alternative relief of revision, had filed the petition after considerable lapse of time, were in contempt and had come to this Court with false assertions. There is no merit in these objections. Once it is held that the court has no jurisdiction to proceed with the matter, the question of alternative relief cannot stand as a bar to the exercise of the jurisdiction of this court under Article 226 of the Constitution. Secondly, the revision is not as efficacious a remedy as is available through the writ jurisdiction of this Court. Thirdly, the revision filed by the petitioners has remained pending so long without any decision, while the writ petition filed much after the filing of the revision has already come up for decision. In the present case time is of importance. The availability of a speedy remedy cannot therefore be denied to the petitioner because of the pendency of the revision. Fourthly, the respondent himself had objected to the maintainability of the revision before the District Judge. In the case of " State of Uttar Pradesh v. Mohammad Nooh", (A.I.R. 1958 S.C. 86) it was held that there was no rule with regard to certiorari as there was in the case of Mandamus that it will lie only where there was no equally effecting remedy. The Supreme Court approved of the observations in the Halsbury's Laws of England, (3rd Edn. Vol. The Supreme Court approved of the observations in the Halsbury's Laws of England, (3rd Edn. Vol. 11, p. 130) to the effect that the pendency of the revision or availability of an alternative remedy is only a matter which can be taken into consideration by the Court in refusing the writ but that is not a ground on which the jurisdiction of this Court to issue the writ may be challenged. When the Court finds that the Subordinate Court is proceeding without any jurisdiction, the Court will not deny to the petitioner the relief on the ground of pendency of the revision, particularly when the order to be passed in revision by the Subordinate Court will itself be liable to be considered by this Court in the exercise of its revisional jurisdiction." Reference of Ashwani Kumar v. C.T.O., 1958 Cal. 289 (18) and M/s. Varghese & Co. v. Joint C.T.O, 1967 (2) M.L.J. 134 (137) may also be made here. As such the writ petition cannot be dismissed on the ground of availing of the alternative remedy. 7. The petitioner has also prayed that in view of the nature of the charges framed against him, no further enquiry be held on the same charges which relate to the year 1982. It is clear from a perusal of the charge-sheet (Anx. 2) that the charges are of very serious nature. They relate to the fabrication of documents and embezzlement of the amounts collected by the petitioner from the passengers as fare. It has been stated in the opening para (A) of the reply to the writ petition that the previous conduct was not good and the integrity was also not above board. Three instances of misconduct have been enumerated in it. In the rejoinder-affidavit, these averments have not totally been denied. Under these facts and circumstances, this prayer of the petitioner cannot be allowed. 8. Consequently, the writ petition is partly allowed. The dismissal order (Anx. 4) is quashed. The petitioner is re-instated with half back wages. The respondents arc at liberty to hold fresh enquiry against the petitioner in respect of tire charges mentioned in Annexure 2, in accordance with law. No order as to costs.Petition party allowed. *******