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1999 DIGILAW 931 (RAJ)

Murli Manohar Mathur v. State of Rajasthan

1999-07-27

V.G.PALSHIKAR

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Honble PALSHIKAR, J.–By this petition, the petitioner seeks certain reliefs by way of issuance of writ under Article 226 of the Constitution of India on specious plea that High Court has plenary powers and unlimited jurisdiction under Article 226 of the Constitution of India and it can entertain such petitions inspite of the fact that alternate remedy is available. (2). Taking into consideration the fact that several such cases are filed at Jaipur Bench of this Court, inspite of the fact that there is authoritative pronouncement of this Court in the case of Gopi Lal Teli vs. The State of Rajasthan and others (1), wherein a larger Bench of five Hon. Judges of this Court has laid down in unequivocal terms as under:- ``(40). After giving our thoughtful consideration to the facts and submissions made at the Bar and in view of catena of cases decided by the Apex Court on the question referred to us, we are of the opinion that the answer to the question referred by the learned Single Judge is in negative and we are further of the view that the ratio laid down by the Full Bench of this Court in Smt. Indus case (supra) and the Division Bench in Rajasthan Pul Nigams case (supra) do not lay down correct law and we specifically over rule the aforesaid decisions. We are of the opinion that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of na- tural justice, the normal course is to persue the remedy provided under the Act and exercise of power under Article 226 of the Constitution of India in such cases should be sparingly exercised. (3). This judgment unfortunately is ignored. The binding effect of the larger Bench judgment as a precedent is undisputed in view of Article 141 of the Constitu- tions of India and this Court whether sitting in Single Bench, Division Bench or Full Bench is bound by the dicta of that judgment. Judicial discipline requires that judgment is scrupulously followed in letter and spirit. Unfortunately it is followed only in letter and ignored in spirit. Judicial discipline requires that judgment is scrupulously followed in letter and spirit. Unfortunately it is followed only in letter and ignored in spirit. It is not cited at the Bar on the specious grounds that it pertains to I.D. Act only and inspite of the authoritative pronouncement wherein, writ petitions are filed and entertained at Jaipur Bench even if equally eff- icacious and adequate remedy more speeder than a writ is available. In my opinion such state of affairs should not exist hereafter. What has been laid down in Gopi Lals case is a general proposition of law in relation to entertainment of a writ petition or exercise to writ jurisdiction in cases where adequate remedy before the special forum is statutorily made available. In the circumstances, it would be nece- ssary in the present case to take into consideration this legal position and determine the question of exercising extra ordinary jurisdiction of this Court under Article 226 when equally efficacious and speedy remedy before an alternate forum of competent jurisdiction is available. The fact that arrears in the High Court are huge, also can not be lost sight of. (4). It is also necessary to keep in mind the purpose of having hierarchy of Courts and Tribunals for adjudicating the claims of rival parties and entire system of administration of justice is geared to deliver justice to as many as possible, as early as possible and as just as possible. This being the aim, the provision of number of remedies before the competent or special forums or Tribunals is liable to be con- sidered in its proper perspective. (5). The Supreme Court of India has in the case of K.S. Rashid & Son vs. Income Tax Investigation Commission and others (2), has observed as under:- ``For the purpose of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary rem- edy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. (6). Such suitable relief is provided in the State of Rajasthan right since 1976 when the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 was promulgated. (6). Such suitable relief is provided in the State of Rajasthan right since 1976 when the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976 was promulgated. In this connection, it would be worthwhile to note the purpose and objective of this enactment which reads as under:- (I) Statement of Objects and Reasons: The proposal to Constitute Administrative Tribunals to decide service matters was under consideration of the State Government for a long time. Service matters are broadly of two types: One type relating to disciplinary proceedings and the other relating to the rules of recruitment and other conditions of service. So far as the disciplinary matters are concerned, the Classification, Control, and Appeal Rules made provisions for Departmental Appeal or Review. As regards the other service matter, the present practice is only of making representation to the Government. In both the cases an aggrieved government servant can approach the Civil Courts, by way of Suits and the High Court or Supreme Court by means of writ petitions. The ordinary Civil Courts take a considerable time in deciding the service matters which is expensive and burdensome to both the Government servant and the Government. The suggestion of establishing Administrative Tribunals has been from time to time considered by the Law Commission as well as by other eminent authorities. In view of the need for satisfactory and early final decision and to stop a flood of litigation in the Civil Courts, the State Government has decided to constitute Administrative Tribunals to decide appeals from the order of competent authority and to bar the jurisdiction of the Civil Courts in Service matters. These Tribunals would provide an independent forum for decision in service matter and would be more economical both to the Government servant and the Government. It will also lessen the burden of judicial courts and enable them to concentrate on other judicial matters. (7). It will thus be seen that creation of Service matters Appellate Tribunal in the State of Rajasthan was with the specific purpose to create a competent Tribunal for speedy disposal of the grievances of the citizens within the State of Rajasthan. This Tribunal is in existence since 1976. Section 2(c) of this Act defines what a government servant means. Clause (f) of Section 2 defines what a service matter means. This Tribunal is in existence since 1976. Section 2(c) of this Act defines what a government servant means. Clause (f) of Section 2 defines what a service matter means. It would be necessary for effective adjudication of the present writ petition to consider this definition at length. (f) ``Service matter means any one or more than one of the following matters relating to a Government servant:- (i) Seniority; (ii) Promotion; (iii) Confirmation; (iv) Fixation of pay; (v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a government servant, otherwise than as a penalty; (vi) Cases of reversion while officiating in a higher service, grade or post to lower service, grade or post otherwise than as a penalty; (vii) With-holding the pension or denying the maximum pension otherwise than as the penalty; (viii) Any other matter notified by the Government; (8). From the above definition of Service Matter, it would be seen that except for disciplinary proceedings, all other matters pertaining to service condition of a government servant are liable to be adjudicated before the Tribunal. Taking into consideration the width of service matters, it has been laid down by this Court in Jiwan Das vs. State of Rajasthan (3), that an appeal can be filed before the Tribunal for claiming relief in as used relation to any of the matters included definition of service matter, even though there is no written order which could be assailed or impugned in the appeal. The word ``appeal as used in this enactment is in its generic sense. It is an appeal to the Tribunal to give justice to the Government servant in relation to the service matter where according to the government servant injustice is caused to him. (9). It is with the existence of this Tribunal with such width of jurisdiction and power that an alternative remedy of efficacious and speedy nature is created in the State of Rajasthan. Unfortunately, however,by and large there is tendency of ignoring existence of this Tribunal and this Court should exercise its jurisdiction under Article 226 of the Constitution of India inspite of the fact that alternative remedy of speedy nature exists. Unfortunately, however,by and large there is tendency of ignoring existence of this Tribunal and this Court should exercise its jurisdiction under Article 226 of the Constitution of India inspite of the fact that alternative remedy of speedy nature exists. The observations of Supreme Court of India in the case of Union of India vs. T.R. Verma (4), may be usefully repeated: ``It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that re- medy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs. Municipal Board Kairana ( 1950 SCR 566 = AIR 1950 SC 163 (A)), the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226, unless there are good grounds therefor. (10). This aspect was also considered by the larger bench in relation to Industrial Disputes Act and it was observed by the larger bench as under:- ``Without being misunderstood and without showing any disrespect to the aforesaid two decisions in Smt. Indus case (supra) and Rajasthan Pul Nigams case (supra), large number of writ petitions have been filed without taking recourse of adequate, efficacious remedies contained in the Act for violation of the provisions of Chapter V-A of the Act and these two judgments have, in fact, opened flood gate for filing large number of writ petitions arising out of industrial disputes directly in the High Court without availing alternative remedy. (11). The larger bench then proceeded to over-rule the two judgments of this Court and the Rajasthan Pul Nigams case which in the opinion of the larger bench resulted in opening flood gate for filing number of writ petitions directly in the High Court without availing alternative remedy. This dicta is applicable mutatis mutandi to cases in which remedy under the Tribunals Act of 1976 is available. This dicta is applicable mutatis mutandi to cases in which remedy under the Tribunals Act of 1976 is available. The whole purpose of writing this judgment is to painfully bring out the ignoring of a binding precedent of this Court in the matter of filing of writ petition without availing alternative remedy. The Supreme Court of India has lateron observed in the case of Danda Rajeshwari vs. Bodavula Hanumayamma and others (5), as under:- ``the High Court exercising its power under Article 226 of the Consti- tution declined to interfere in the election disputes since alternative remedy of filing election petition and adjudication has been provided in the relevant statutory rules. Far from saying that the High Court has no jurisdiction, the High Court exercised self-restraining in exercise of the power under Article 226 and directed the parties to avail of al- ternative remedy. (12). The emphasis laid down by the Supreme Court on the High Court exercising self-restrain in the matter of exercise of jurisdiction under Article 226 in the face of alternative remedy has a binding effect as law laid down by the Supreme Court by way of Article 141 and it may not be proper for this Court to ignore the jud- gment in Gopal Telis case by saying that it pertains to Industrial Disputes Act or ignore the case of Supreme Court that it refers to election petition. What has been laid down by the Supreme Court of India and this Court in Gopal Telis case is that when alternative remedy of efficacious and speedy nature is available to the litigant, he should exhaust that remedy first and approach this Court for exercise of its jurisdiction under Art. 226 in case necessary. Whenever the litigant chooses to short circuit this course and approaches this Court directly by way of writ, without availing the alternative remedy, this Court should exercise self restraint in exercising the power under Art. 226 in favour of such a litigant. In my opinion, therefore, it would be improper exercise of the jurisdiction under Art. 226 to entertain directly a writ petition in cases covered by the definition of Government servant and Service Matter in Section 2 of the Appellate Tribunals Act, 1976. That brings me to the facts of the present case. The dispute in the present case is squarely covered by the definition of Service Matter. That brings me to the facts of the present case. The dispute in the present case is squarely covered by the definition of Service Matter. There is no reason why the petitioner should not approach the Tribunal by way of alternative remedy. In the present case the powers of the Tribunal are limited or restricted in any manner. In such circumstances, there is no reason why the parties should not be relegated to the alternative remedy. Hence the petition is rejected for availability of alternate remedy. (13). The necessity of approaching the statutory forum without directly coming to the High Court for exercise of its writ jurisdiction can not be over stated. The normal practice should be that only in exceptional cases writ jurisdiction of this Court may be tried. However, this raises another question of importance as to what should happen to the grievances made in the petition by the petitioner who either by ignorance of law of by illadvice has come in this Court directly without approaching the Tribunal. Should he be left without remedy? The answer is obvious. In such circumstances, the employees seeking justice should not be left remedyless Hon. Supreme Court has observed in Danda Rajeshwaris case reported in (supra), that in cases where the High Court declines to exercise its jurisdiction under Article 226 of the Constitution of India, it has the power to direct the party concerned to appro- ach the appropriate forum and request the appropriate forum to take up disposal of matters on merits without going into the question of limitation. The Supreme Court in this case was dealing with the contention that the remedy of election petition is statutory remedy for pursuing the remedy of election dispute, which limitation was prescribed by the statute itself and by judicial order the limitation can not be nullified. The Supreme Court while rejecting this contention, observed that such can be a case where the High Court lacks the jurisdiction to entertain the writ petition but not where the High Court has jurisdiction under Article 226 to decline it to exercise it for the existence of proper alternate remedy giving better avenue to the petitioner and one further remedy by way of challenging the decision of High Court if adverse to the petitioner in the High Court. In such circumstances, the High Court can issue such direction. (14). In such circumstances, the High Court can issue such direction. (14). Taking into consideration this aspect of law, I deem it just and proper to direct that the petition as is already filed in this Court, be treated appeal and be transmitted to the Tribunal for adjudication only on merits without considering the question of limitation. (15). The Registrar is requested to see that papers of this petition are transferred to the Tribunal at Jaipur, as soon as possible.