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1988 DIGILAW 948 (ALL)

Kamal Kishore Jaiswal v. Regional Dy. Director

1988-10-10

D.S.SINHA, S.K.DHAON

body1988
JUDGMENT 1. The petitioner has challenged tire legality of the order dated 2.8.1988 purported to have been passed by the Regional Deputy Director (Administration), Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad, Bareilly (hereinafter referred to as 'the Regional Deputy Director). The impugned order states that the services of the petitioner arc being terminated/dismissed on his being given three months' pay in lieu of notice. 2. The respondents No. 1 to 4 are represented by Sri B.D. Mandhyan. A counter - affidavit has been filed and a rejoinder - affidavit has also been filed. Though this petition has not been formally admitted, yet affidavits have been exchanged between the parties. With the consent of the learned counsel for the parties we are proceeding to dispose of the petition finally. 3. From a perusal of the affidavits exchanged between the parties the following facts emerge. 4. On or before 11th January, 1988 the petitioner was working as a Head Clerk in the Krishi Utpadan Mandi Samiti (hereinafter referred to as 'the Samiti). On 11th January, 1988 the petitioner was suspended from service by the Regional Deputy Director pending disciplinary proceedings. An enquiry officer was appointed. A charge - sheet dated 5th April, 1988 was served upon the petitioner on 7th April, 1988. On 18th April, 1988 the petitioner made an application to the enquiry officer praying that copies of certain documents, referred to in the charge - sheet may be given to the petitioner. On 30th April, 1988 the enquiry officer wrote to the petitioner that he could inspect the record. On 28th May, 1988 the petitioner reiterated his demand for the supply of copies. On 27th May, 1988 the enquiry officer sent a communication to the petitioner stating therein that by a communication dated 30th April, 1988 the petitioner had been informed that he could inspect the record and thereafter submit his reply to the charge - sheet within a period of ten days. However, the petitioner did not take any action. The petitioner was given a week's further time to inspect the record and submit his explanation, falling which he was warned there would be no option left but to arrive at the conclusion that he did not intend to inspect the record and had no explanation to offer. The petitioner was also given a warning that if he failed to do the needful, final orders would be passed. The petitioner was also given a warning that if he failed to do the needful, final orders would be passed. The petitioner persisted in demanding the copies of the documents, referred to above. On 2nd July, 1988 the Regional Deputy Director (Administration) of the Samiti sent a communication to the petitioner stating therein that it was not possible to concede to the demand of the petitioner to supply the copies of the documents. However, it was still open to the petitioner to inspect the relevant record. The petitioner was given a reminder that if he failed to submit his reply after inspecting the record it would be presumed that he had nothing to say in the matter and an ex parte order would be passed and if that was done the responsibility would be of the petitioner alone. On 18th July, 1988 the petitioner reiterated the demand for supply of the copies. This was followed by a communication dated 23rd July, 1988 in which a similar request was made. On 10th August, 1988 the petitioner sent a communication to the enquiry officer asking him (the enquiry officer) to nominate a date to inspect the record and thereafter he would submit his reply. (As already stated the enquiry officer had on several occasions asked the petitioner to inspect the record whenever it suited him to do so). Eventually a reply was submitted by the petitioner, the departmental proceedings look place and on the basis of these proceedings, in fact, the Regional Deputy Director on 2nd August, 1988 passed a detailed order wherein he recorded the finding that the petitioner deserved dismissal from service. In the rejoinder - affidavit, this is not controverted, it is stated that the Regional Deputy Director did pass a detailed order on 2nd August, 1988. Three submissions have been made in support of this petition. They are : (1) The detailed order having not been communicated to the petitioner, at any stage, could not be relied upon by the respondents even in these proceedings. In the eye of law the order did not come into existence at all; (2) The disciplinary proceedings stood vitiated as the petitioner was not given the copies of the documents, which were referred to in the charge - sheet; and (3) The Regional Deputy Director had passed the order termination/dismissing the petitioner from service on mala fide considerations. In the eye of law the order did not come into existence at all; (2) The disciplinary proceedings stood vitiated as the petitioner was not given the copies of the documents, which were referred to in the charge - sheet; and (3) The Regional Deputy Director had passed the order termination/dismissing the petitioner from service on mala fide considerations. We shall deal with these submissions seriatim. 5. Re. I: A true copy of the detailed order has been filed as an annexure to the counter - affidavit. It was passed by the Regional Deputy Director, Annexure 1 to the writ petition contains the operative portion of the order of the Regional Deputy Director. Annexure 2 to the writ petition is a copy of the publication in the newspaper 'Amar Ujala of Bareilly dated 13th August, 1988. This too contains the operative portion of the order. It is not the case of the petitioner and it cannot be said that in fact, a detailed order had not been passed by the Regional Deputy Director. The reasons are contained in the detailed order. The operative portion of the order, which had been, communicated to the petitioner, formed part of the detailed order. It is not a case where the order was not communicated at all. Even in the absence of the communication of the detailed order, the entire order became effective the moment the operative portion was communicated lo the petitioner. Reliance is placed upon the case of the State of Punjab v. Amar Singh Harika, reported in AIR 1966 SC 1313 , wherein it was held that the mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. An order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. It was held that the order took effect in that case on a certain date when the petitioner therein came to know about it. The decision in the case of Ram Sukh Shukla v. State of U.P. and others, 1983 Allahabad Weekly Cases 157 has also been cited. It was held that the order took effect in that case on a certain date when the petitioner therein came to know about it. The decision in the case of Ram Sukh Shukla v. State of U.P. and others, 1983 Allahabad Weekly Cases 157 has also been cited. In this case reliance has been placed upon the decision of the Supreme Court in Amar Singh Harikas case (supra). No exception can be taken to the proposition laid down by the Supreme Court in the aforesaid case. That was a case where the order had been kept on the file and not communicated at all. Here, as already indicated, the order was communicated. The respondents took good care to publish the same in the newspaper on 13th August, 1988. The cases, therefore, cited by the learned counsel for the petitioner are not apposite. 6. Re. 2 and 3. - This is not a case where the principles of natural justice were not observed at all. It is the petitioners own case that a charge - sheet was given to him and even according to him he submitted a reply to it. He was given an opportunity to inspect the record as well. So far as the mala fide is concerned the thrust of the alienation is that the Regional Deputy Director passed the impugned order immediately after he came to know that he had been transferred. It is alleged that the said officer received the order of his transfer on 1st August, 1988 arid he passed the impugned order on 2nd August, 1988. It is not the case of the petitioner that the officer passed the order after handing over charge, Prima facie, we are not satisfied that any case of mala fide is made out. However, we are refraining from expressing any opinion either on the question as to whether the petitioner had been really denied opportunity to put forward his case by non - supply of copies of the documents to him or the Regional Deputy Director acted mala fide as the petitioner had a statutory right of appeal to the Mandi Parishad and we feel that the proper remedy of the petitioner is to prefer an appeal. Reliance is placed by the learned counsel for the petitioner upon a decision given by us in the case of Methodist Church in India, Bareilly v. Bareilly Development authority, the summary of which is reported in 1988 Allahabad Law Reports page 37. In that case, we had taken the view the rule of alternative remedy does not oust the jurisdiction of the Court to grant the relief under Article 226 of the Constitution if it is found necessary for promotion of justice and prevention of injustice which is the primary' object of the constitutional provision. In the instant case we feel that it will be difficult, if not impossible, for this Court to adjudicate upon the factual controversy as regards the failure of the respondents to supply copies of the documents to the petitioner as well as the mala fide attributed to the Regional Deputy Director. We feel that by relegating the petitioner to an appeal the cause of justice will be promoted rather than dereated. 7. The petition is dismissed summarily.