JUDGMENT 1. - Petitioner has challenged the inquiry proceedings being held against him on the basis of charge sheet dated 30th December, 1987 and prayed that the punishment of termination from service be declared as illegal, void and violative of Articles 14 and 16 of the Constitution of India and may be set aside with a further declaration that the petitioner be treated as continuing in service. It has also been prayed that the respondents be strained from terminating the services of the petitioner on the basis of findings of the inquiry officer or on the basis of the decision of the Government. 2. Petitioner joined service on being appointed as C.A.S. with effect from April 30, 1981. He was served with a memorandum dated 30th December, 1987 for his alleged absence without getting the leave sanctioned from the competent authority. The petitioner denied the charge levelled against him vide his reply, Annexure-2. By order dated 1.3.1988 of the Government, the petitioner was informed that inquiry will be held against him and Additional Commissioner-II, Departmental Inquiries, Rajasthan, Jaipur was appointed as Enquiry Officer. According to the petitioner, no oral evidence was adduced on behalf of the department. In rebuttal, he examined Dr. D.N. Verma, the then Chief Medical and Health, Officer, Jhalawar and Dr. M.C. Jain and one Shri Prem Prakash Mundra. The departmental representative submitted his comments and the petitioner submitted his explanation. Thereafter, no further date was fixed and the inquiry was concluded. The Enquiry Officer is said to have submitted his report and in that he has held the petitioner guilty of the charges levelled against him. 3. Apprehending termination of his service, the petitioner filed a civil suit in the Court of Additional Munsif and Judicial Magistrate No. 2, Jaipur City, Jaipur. He also filed an application under Order 39, Rules 1 and 2 C.P.C. On this application, the learned Munsif and Judicial Magistrate passed an order on January 6, 1990 directing the parties to maintain status-quo. Since the petitioner was still in service, no order of punishment by way of termination of service was passed by the Government. While this stay order was still continuing, the petitioner moved an application on 26th March, 1991 for withdrawal of the suit with liberty to file fresh legal proceedings before a competent court. Since the petitioner was still in service, no order of punishment by way of termination of service was passed by the Government. While this stay order was still continuing, the petitioner moved an application on 26th March, 1991 for withdrawal of the suit with liberty to file fresh legal proceedings before a competent court. This application was allowed by the learned Additional Munsif and Judicial Magistrate No. 2, Jaipur on that very day. Thus, the civil suit filed by the petitioner stands withdrawn and now the petitioner has filed the present writ petition, on March 30, 1991. Petitioner has enclosed a copy of the reply filed on behalf of the respondents in the court of Additional Munsif and Judicial Magistrate, Jaipur, in which it has been stated that the Government has taken a decision to terminate the service of the petitioner on the basis of departmental inquiry held against him. 4. Learned counsel for the petitioner has challenged the inquiry proceedings on various grounds including the one of violation of the principles of natural justice and has also argued that the action threatened to be taken against the petitioner is clearly discriminatory and arbitrary. He has stated that a number of doctors who were charged with the allegation of absence without sanction of leave were given much lesser punishment than the one which is proposed to be imposed on the petitioner. 5. Learned counsel for the petitioner strenuously urged that mere filing of the suit and withdrawal of the same does not disentitle the petitioner to claim relief by way of writ petition under Article 226 of the Constitution of India. Petitioner had filed suit on the basis of apprehended injury and when the threat has become real, he had applied for withdrawal of suit with liberty to take other legal proceedings. His fundamental rights are at stake and therefore, this writ petition should be entertained by this court. He argued that withdrawal of the suit on the basis of application, in which there was specific prayer for permission to avail remedy in other legal proceedings would mean that the Court had impliedly granted permission to avail any other remedy including the remedy by way of writ petition under Article 226 of the Constitution of India. He argued that withdrawal of the suit on the basis of application, in which there was specific prayer for permission to avail remedy in other legal proceedings would mean that the Court had impliedly granted permission to avail any other remedy including the remedy by way of writ petition under Article 226 of the Constitution of India. He also argued that when there is a case of threatened injury, the writ petition can be entertained even before the actual injury is inflicted on the petitioner. 6. Learned counsel for the petitioner has placed reliance on the decisions in Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321 , Caltex (India) Ltd. v. Commissioner of Sales-tax, AIR 1971 M.P. 162 , Chandra Dev v. State of A.P., 1977 Lab IC 1720 , Aryaveer Saxena v. State of U.P., 1979 (1) SLR 42 , Savitri Devi v. Municipal Corporation, Delhi, 1979 (2) SLR 540 , D.C.M. Ltd. and another v. Engineer, RSEB 1987 (2) RLR 1 , Bharat v. Ram Pratap AIR 1985 All 61 and Radha Krishna v. State of Rajasthan, AIR 1977 Raj. 131 7. I have given my thoughtful consideration to the submissions of the learned counsel for the petitioner. In my opinion, it is not a fit case for exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. A departmental inquiry was initiated against the petitioner in the year 1987. He participated in the inquiry proceedings, which continued for almost about 2 years. At that stage, he had not Challenged the jurisdiction of the Government to initiate disciplinary action against him. As soon as the inquiry proceedings were concluded by the inquiry officer, he filed a civil suit in a competent civil court challenging the inquiry proceedings. He applied for grant of temporary injunction and the learned Court issued temporary injunction in his favour. This injunction order continued for a period of over one year and 2 months. The Government could not pass order against the petitioner in view of the injunction order passed by the competent civil court. In reply to the injunction application, the Government has simply stated that the inquiry has been held against the petitioner. on the basis of charge sheet given to him by memorandum dated 23.12.1986. He has been given full opportunity of defending himself and thereafter, a decision had been taken to remove him from service. 8. In reply to the injunction application, the Government has simply stated that the inquiry has been held against the petitioner. on the basis of charge sheet given to him by memorandum dated 23.12.1986. He has been given full opportunity of defending himself and thereafter, a decision had been taken to remove him from service. 8. It is true that the petitioner applied for withdrawal of the suit and according to him, in the application he had stated that he may be permitted to withdraw the suit with liberty to file fresh legal proceedings before the competent court and it is also true that this application of the petitioner was allowed by the learned Munsiff and Judicial Magistrate No. 2, Jaipur City, Jaipur. However, the fact remains that the petitioner had chosen to avail remedy before the competent civil court with full consciousness and knowledge of his rights. He had thought that the remedy of civil suit for declaration and injunction is an effective remedy available to him for redressal of his alleged grievance. In fact, he got the advantage of the injunction order passed by the learned Civil Court for more than 1 year and 2 months. No extra ordinary development has taken place, which warranted the petitioner to rush to this court inspite of the fact that the injunction order passed by the civil court in his favour was still operative. A litigant has a right to chose the forum for redressal of his grievance, but it is certainly not his sweet will and fancy to chose a particular forum for redressal of his grievenace, take benefit of the order passed by that particular forum and then give up that remedy in the minds at his will and invoke extra ordinary jurisdiction of the High Court. It is not the case of the petitioner that the Civil Court is not competent to give relief to an aggrieved party in a case like the one filed by the petitioner. In fact any such a argument will be wholly untenable. The Civil Court is fully competent to give appropriate relief to any aggrieved person, if any injury is caused to his civil rights. Of course, in granting relief to any party, the court will act in accordance with the statutory provisions and the settled principles of law. In fact any such a argument will be wholly untenable. The Civil Court is fully competent to give appropriate relief to any aggrieved person, if any injury is caused to his civil rights. Of course, in granting relief to any party, the court will act in accordance with the statutory provisions and the settled principles of law. It is not open to a litigant to first invoke jurisdiction of a civil court, apply for grant of temporary injunction before the Civil Court and then invoke extra ordinary jurisdiction of the High Court merely because at subsequent point of time, he feels that he may not get relief from the civil court. 9. This tendency amongst the litigants to first avail remedy of a civil court and give up that remedy according to his/her/its sweet will, cannot in any manner be appreciated. In fact, such tendencies deserve to be discouraged. 10. The question relating to the scope of jurisdiction of the High Court under Article 226 of the Constitution of India in the context of availability of equally efficacious alternative remedy has become a subject matter of debate and pronouncements in large number of cases pronounced by the Apex Court and by various High Courts including this High Court. The principle which can be deduced from the various pronouncements is that ordinarily the High Court should not interfere in a matter where the aggrieved party has equally efficacious remedy available to it under the law before any forum. The party must be left to agitate the grievance before that forum. Exceptions to this broad rule of alternative remedy have been carved out in cases where there is violation of principles of natural justice or where vires of provisions of any statute or Rules is under challenge. It is equally well settled principle of law that availability of alternative remedy is no bar to the maintainability of the petition despite availability of alternative remedy. It is only a question of sound exercise of this discretion. 11. In cases where a party has an alternative remedy by way of suit or by way of an appeal and it has itself considered the remedy to be effective and efficacious and has thought it proper to avail the same, in such cases the court will not exercise discretion of entertaining a writ petition despite availability of alternative remedy. 11. In cases where a party has an alternative remedy by way of suit or by way of an appeal and it has itself considered the remedy to be effective and efficacious and has thought it proper to avail the same, in such cases the court will not exercise discretion of entertaining a writ petition despite availability of alternative remedy. Choice was available with the party at the initial stage. It is option to approach the High Court under Article 226 of the Constitution of India and submit that other remedy is not efficacious but having exercised its option to avail alternative remedy, the party cannot be permitted to give up that remedy in the minds and invoke extra ordinary jurisdiction of the High Court. It will be sheer abuse of the process of the court and mockery of the system of rule of law if a party which has chosen to avail remedy of suit before a competent civil court is although at one time it thought that remedy of civil suit is efficacious, subsequently it has changed its mind and now considered the remedy to be inadequate, ineffective or not efficacious. The Civil Courts are as competent as High Court as to give relief to a party whenever it finds the breach of civil rights as also the fundamental rights. Therefore, it will be a sound exercise of discretion not to entertain the petition filed on behalf of a party, where it had availed the remedy by way of suit or by way of appeal, prosecuted it for some time and then changed its mind to abandon that remedy so as to invoke the extra ordinary jurisdiction of the High Court. 12. In Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321 their Lordships of the Supreme Court had declined to interfere with the order of the High Court passed under Article 226 of the Constitution of India, whereby a writ was issued in the matter despite pendency of appeal filed by the petitioner before the High Court. In doing so, their Lordships observed as under "It is true that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. In doing so, their Lordships observed as under "It is true that the High Court would not ordinarily entertain a petition under Article 226 of the Constitution where an alternative remedy is open to the aggrieved party. Though that is so, the High Court has jurisdiction to grant relief to such a party, if it thinks proper to do so in the circumstances of the case. In the present case, the High Court has chosen to exercise discretion in favour of the respondents and it would not be right for us to interfere with the exercise of that discretion, unless we are satisfied that the action of the High Court was arbitrary or unreasonable." 13. This case has no direct bearing to the question involved in the present writ petition. In that case the High Court had exercised discretion in favour of a party inspite of availability of alternative remedy. After lay down general principle against invoking of extraordinary jurisdiction under Article 226 of the Constitution, the Supreme Court refused to interfere where the High Court had exercised discretion in favour of petitioner. 14. In Caltex (India) Ltd. v. Commissioner of Sales-tax, AIR 1971 M.P. 162 a Division Bench of the High Court held that discretionary remedy under Article 226 should not be refused on the ground of availability of alternative remedy by way of suit in a case where the petitioner without laches sought relief under Article 226 of the Constitution of India. 15. In Chandra Dev v. State of U.P., 1977 Lab IC 1720 , a Division Bench of the Allahabad High Court observed as under "It is undoubtedly true that the existence of alternative remedy is a relevant circumstance for considering as to whether we should exercise our discretion under Article 226 of the Constitution. But the mere existence of and alternative remedy or the fact that the petitioner has resorted to such a remedy does not constitute a bar to the exercise of other power under Article 226 of the Constitution. Petition was entertained by this court even though such a remedy existed and the petitioner had resorted to it. This being so, as we are of the view that the order passed does not appear to be justified in law, we are not inclined to refrain from granting relief to the petitioner." 16. That was a case of compulsory retirement of the petitioner. This being so, as we are of the view that the order passed does not appear to be justified in law, we are not inclined to refrain from granting relief to the petitioner." 16. That was a case of compulsory retirement of the petitioner. The Court had found that the retirement was based on un communicated adverse remarks and was, therefore, invalid and after recording that finding the Court made the aforesaid observations in the context of the plea that the petitioner had already sought relief by making a reference under Section 4 the Service Tribunals' Act. 17. In Aryaveer Saxena v. State of U.P., 1979 (1) SLR 42 , the Allahabad High Court rejected the contention that it should not interfere with the order of suspension and that the High Court should only question the order of the Tribunal where it had refused to give relief. The Court held that the petitioner is entitled to approach the court under Article 226 even if he has an alternative remedy. In that case, the Court had found that the petitioner had exhausted an alternative remedy available to him and, therefore, there was no bar in quashing the order of suspension. The court also found that since a period of 3 years had passed from the date of order of suspension it was inexpedient to remand the case to the Tribunal. 18. In Savitri Devi v. Municipal Corporation, Delhi, 1979 (2) SLR 540 , a learned Single Judge of Delhi High Court rejected the preliminary objection raised on behalf of the Corporation against the maintainability of the writ petition on the ground that civil suit filed by the petitioner had been dismissed as withdrawn. In that case the Court had found that the suit for injunction had become in fructuous in view of the reversion order, which had been passed by the respondents. 19. In D.C.M. Ltd. and another v. Asstt. Engineer, RSEB, 1987 (2) RLR 1 , a Division Bench of this Court overruled the preliminary objection of existence of later native remedy of arbitration or civil suit and while doing so, it observed as under : 'The existence of alternative remedy of arbitration or of civil suit does not forbid exercise of power under writ jurisdiction and can be only a ground for refusal to exercise that discretionary power. As already stated, relief has been granted in the writ petition and. that is not challenged. This fact considerably reduces the weight of such an objection. In our opinion, this alone is sufficient to reject this preliminary objection at the stage of appeal against the decision of the writ petition on merits by a Single Bench. Moreover, the petitioner's case is based on invalidity of the aforesaid Clause 16(c) inter alia on the ground that it is violative of Article 14 of the Constitution. In a case like the present where the grievance made is of violation of the fundamental right of equality, refusal to exercise power under Article 226 of the Constitution can be only in extraordinary circumstances exist in the present case. That apart, the point involved for decision does not require decision of any disputed question of fact and the conclusion on merits has to be reached on facts beyond controversy and appearing from the record. There is no controversy that one of the two suits filed by the petitioners was withdrawn after the writ petition was filed. According to Dr. Singhvi the civil suit is based on different grounds and not the validity of Clause 16 (c). If that be so, then petitioner would be driven to file another suit hereafter, in case the preliminary objection is upheld. At any rate, a civil suit cannot be called an efficacious alternative remedy in the present case. In our opinion, it would be wholly inappropriate to decline exercise of power under Article 226 of the Constitution in the present case on the ground of existence of any alternative 'remedy to the petition. This preliminary objection is, therefore, rejected." 20. A bare perusal of the observations made by the Division Bench clearly show that availability of an alternative remedy is by itself not a bar to the exercise of jurisdiction under Article 226 of the Constitution of India. That can only be a ground for refusal to exercise discretionary power. The court found that partial relief had been given by the learned Single judge in the writ petition and that was not even under challenge, and the objection of later native remedy raised at the stage of appeal did not warrant rejection of the petition. That can only be a ground for refusal to exercise discretionary power. The court found that partial relief had been given by the learned Single judge in the writ petition and that was not even under challenge, and the objection of later native remedy raised at the stage of appeal did not warrant rejection of the petition. The Court also observed that the case*of the petitioner was based on invalidity of Clause 16 (c) of the agreement on the ground that it violates Article 14 of the Constitution. In that situation, the court found that the Civil Suit cannot be said to be an alternative remedy. 21. In Bharat v. Ram Pratap, AIR 1985 All. 61 , a Division Bench of Allahabad High Court had considered the scope of Order 23 Rule I CPC and held that there where an application was moved by the plaintiff under Order 23 Rule 1 CPC (old) for withdrawal of suit with liberty to file fresh suit and such application is allowed by the Court even without expressly passing the order granting permission to file fresh suit, the order would be construed to be one granting withdrawal of the suit with liberty to file fresh suit. This case is of no help to the petitioner because the principle laid down by the Allahabad High Court applied only to fresh suit and it has nothing to do with the filing of a writ petition after withdrawal of a suit by an application containing prior for filing fresh litigation. 22. In Radha Krishna v. State of Rajasthan and others, AIR 1977 Rajasthan 131 , a Division Bench of the Court had made the following observations : ''There can be no doubt as to the principles applicable to a suit. The Court has undoubtedly no power apart from Order 23, Rule 1, CPC to allow a suit to be withdrawn with liberty to file a fresh once, and the power has to be exercised subject to the conditions prescribed therein. When leave is granted to the plaintiff to withdraw from the suit with liberty to bring a fresh suit, the order must not be one dismissing the suit with liberty to bring a fresh suit, but one granting permission to the plaintiff to bring a fresh suit. Where. leave is refused the Court should simply dismiss the application. When leave is granted to the plaintiff to withdraw from the suit with liberty to bring a fresh suit, the order must not be one dismissing the suit with liberty to bring a fresh suit, but one granting permission to the plaintiff to bring a fresh suit. Where. leave is refused the Court should simply dismiss the application. It should not make an order disposing of the suit on the assumption that the plaintiff would withdraw the suit under sub-r. (1) if the application was refused. The court cannot split up application under sub-r. (2) of O. 23, R. 1, CPC into two parts, one for withdrawal of the suit, and the other for permission to file a suit and allow the former, and refuse the latter." 23. The above referred judgements do not, in any way, help the petitioner. 24. In K.S. Rashid and Sons v. Income-Tax Investigation, 1954 SCR 738 , which is one of the earliest cases, the Supreme Court had observed that the remedy provided under Article 226 of the Constitution is a discretionary one and the High Court has always discretion to refuse to grant any writ, if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. 25. In Union of India v. T.R. Verma, 1958 SCR 499 , again their Lordships of the Supreme Court reiterated that petition under Article 226 of the Constitution should not generally be entertained by the High Court where an alternative of equally efficacious remedy is available. The same principle has been reiterated in Than Singh Nathmal and Others v. Superintendent of Taxes, 1964 (4) SCR 654 26. In Sarguja Transport Service v. S.T.A.T. Gwalior, AIR 1987 SC 88 , their Lordships of the Supreme Court, made the following observations : "In order to prevent a litigant from abusing the process of the court by instituting suit again and again in the same cause of action without any good reason, the Code of Civil Procedure insists that he should obtain permission of the court to file fresh suit after establishing either of the two grounds mentioned in Order 23, Rule 1(3). The principle underlying above rule is founded on public policy but it is not the same as the rule of res judicata. The principle underlying above rule is founded on public policy but it is not the same as the rule of res judicata. This principle underlying Order 23, Rule I should be extended in the case of administration of justice the cases of withdrawal of writ petition not on the ground of res judicata, but on the ground of public policy. That would also discourage the litigant from indulging in Bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke extra ordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While withdrawal of writ petition filed in a High Court without permission to file fresh writ petition may not bar other remedy like a suit or petition under Article 32 since such withdrawal does not amount to res judicata. Remedy under Article 226 should be deemed to have been a bond one by the petitioner in respect of the cause of action relied on in the writ." 27. The ratio of the above observations of their Lordships of the Supreme Court is that as a principle of public policy the court must not permit a party to again and again raise the same issue in the court of law. Although that case related to the filing of second writ petition after withdrawal of the earlier one. However, in my opinion, it would be most appropriate to apply the principle laid down in the aforesaid case to the facts of the cases like the present one. 28. The petitioner's case is peculiar in itself. He had not only filed a civil suit, but had also applied for injunction against the threatened termination of service as a result of disciplinary inquiry. He was successful in the Civil Suit, inasmuch as an interim injunction was granted in his favour and the respondents were prevented from passing any final order on the disciplinary action taken against the petitioner. He took advantage and, benefit of the order of the civil court for more than 1 year and 2 months. The petitioner had thought the remedy of civil suit and injunction to be an effective efficacious alternative remedy and availed the same and in fact enjoyed the benefits of temporary injunction passed in his favour. Nothing has changed thereafter. He took advantage and, benefit of the order of the civil court for more than 1 year and 2 months. The petitioner had thought the remedy of civil suit and injunction to be an effective efficacious alternative remedy and availed the same and in fact enjoyed the benefits of temporary injunction passed in his favour. Nothing has changed thereafter. It appears that on the basis of reply filed by the respondents or otherwise the petitioner felt that the injunction order passed by the Civil Court may not continue any longer and, therefore, he thought it proper to withdraw the suit and take a chance to get stay from the High Court in exercise of extra ordinary jurisdiction. In my opinion, there is no ground whatsoever for entertaining the writ petition of the petitioner merely because the petitioner has raised a plea of alleged violation of Articles 14, and 16 of the Constitution of India. He is not entitled to plead that the writ petition should be entertained by the court as a matter of course. 29. That is yet another reason why this petition should not be entertained by this Court. The respondent as per the petitioner's own saying' has so far not passed any order on the basis of disciplinary proceedings. He has neither been dismissed nor removed from service. No other punishment has been imposed on him. Whatever points the petitioner had raised in the civil suit or may like to raise before this court, he is entitled to raise the same before the Government because, as per the law laid down by their Lordships of the Supreme Court in Union India v. Mohd. Ramjan Khan, JT (1990) 4 SC 456 and in Tej Karan v. State of Rajasthan and others, 1991 (1) Western Law Cases (Raj.) 102. the Government is bound to give a copy of the inquiry report to the petitioner and also an opportunity to make a representation before any major penalty specified in Rule 14 of the C.C.A. Rules, 1958 is imposed on the petitioner. The Government is certainly expected to consider the representation of the petitioner before passing any order in the disciplinary inquiry held against an employee. There is no reason to think that the Government will not objectively apply its mind before passing any order adversely affecting the petitioner. 30. The Government is certainly expected to consider the representation of the petitioner before passing any order in the disciplinary inquiry held against an employee. There is no reason to think that the Government will not objectively apply its mind before passing any order adversely affecting the petitioner. 30. Thus in my opinion there is no ground for entertaining this writ petition and consequently, the same is dismissed summarily.Writ Petition Dismissed Summarily. *******