Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 248 (PAT)

Ram Pari Devi v. State Of Bihar

2005-03-03

NAVIN SINHA

body2005
Judgment 1. Heard learned Counsel for the petitioner and learned Counsel for the State. 2. The original petitioner having been deceased was substituted by his widow by order dated 23.11.2000. 3. It would appear that by the impugned order dated 28.4.1989 at Annexure 6 the original writ petitioner was visited with the punishment of stoppage of three increments with cumulative effect. It is not in dispute that in law this would constitute a major punishment. Reference may conveniently be made to 2004(3) PLJR 552 . 4. This Court records with appreciation that the learned Counsel for the State took a very clean and reasonable stand in the facts and circumstances of the present case, that there had been no regular departmental proceedings, meaning thereby service of a memo of charges, leading of evidence, examination of witnesses, marking of exhibits etc. followed by issuance of a second show cause notice before this major punishment came to be imposed. 5. Though the learned Counsel appearing on behalf of the State would contend that the procedure under Rule 55A of the Civil Services (Classification, Control and Appeal) Rules were followed, this Court would hold that the aforesaid being applicable only in a case if minor penalty would not come to the aid of the respondents to sustain the impugned order. 6. Learned Counsel for the State however sought to oppose the present writ application to submit that the impugned order being dated 28.4,89, the writ application came to be instituted belatedly in December 1999 i.e. after nearly ten years. Learned Counsel for the State however sought to submit that the impugned order was also appealable under Rule 56 of the Civil Services (Classification, Control and Appeal) Rules. Thus combined with the two factors of delay and that the order was appealable, the writ application ought to be dismissed notwithstanding the nature of the order. 7. Learned Counsel for the petitioner sought to contend that the order being without jurisdiction the issue of delay or availability of alternative statutory remedy was insignificant. 8. This court upon considering the submissions on behalf of the parties arrives at a finding of fact that before imposition of a major penalty upon the petitioner the procedure contained in the Civil Services (Classification, Control and Appeal) Rules were not followed. The result would be that the order dated 28.4.89 would be without jurisdiction which would operate from its nativity. The result would be that the order dated 28.4.89 would be without jurisdiction which would operate from its nativity. The question of delay may have been relevant had the order been passed in accordance with law. To hold otherwise by accepting the submissions on behalf of the respondents would tantamount to this Court putting its seal of approval on the impugned order which was contrary to law. The availability of an alternative statutory remedy would hardly be of much significance in a factual situation such as the present. It is settled law that refusal of a writ court to entertain a writ application on the ground of availability of alternative remedy is a rule of discretion. Where this Court finds in a given factual situation that relegating the petitioner to the alternative remedy would a mere formality and would result in unnecessary harassment to the petitioner, this Court would be loath in dismissing the writ petition on the said ground. This Court thus holds that the availability of alternative remedy to the petitioner under Rule 56 of the Civil Services (Classification, Control & Appeal) Rules in the present obtaining factual situation is not a bar to the maintainability of the present writ application, This Court would place reliance for,the purpose on AIR 1995 SC 22 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors.) para 15 of which would hold: "15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora or case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." Upon consideration of the developments in law in this regard para 20 would hold that: "20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed is shown to have no jurisdiction or had purported to usurp jurisdiction without any legal foundation." 9. Coming to the issue of delay, learned Counsel for the State has placed reliance on a judgement reported in 2000(6) SCC 562 to submit that in a delay of five to six years the Supreme Court has held that it was sufficient to dismiss the writ application. It was emphasised that the said judgement arise out of service matter relating to dismissal from service. He also placed reliance upon two other judgements reported in AIR 1997 SC 2249 and 1994 (Suppl.) 2 SCC 195. 10. This Court would find from the judgement relied on behalf of the respondents in 2000(6) SCC 562 (Life Insurance Corporation of India & anr vs. Jyoti Chandra Biswas) para 6 of the same, relevant for the present purpose would hold: "6. The order terminating the services of the respondent was passed on 28.1.1969. The writ petition was filed challenging the said order on 25.3.1975, almost after a period of six years. There was no explanation in the writ petition whatsoever for this inordinate delay. The respondent sought for his re-employment in the Corporation by his letter dated 9.1.1974 almost after a period of five years from the date of termination of his services, it only indicated that he accepted the order of termination of his services, if not expressly but impliedly. In the writ petition no ground was raised as to deprivation of a right of appeal to the respondent against the order of the termination of his services. In the writ petition no ground was raised as to deprivation of a right of appeal to the respondent against the order of the termination of his services. It is not the case of the respondent that he was denied any opportunity offending principles of natural justice An inquiry was held pursuant to the charge-sheet witnesses were examined and even the respondent examined three witnesses on his behalf. The enquiry officer looking to the evidence brought on record found, the respondent guilty of the charges. It was also not shon that any prejudice was caused to him in the inquiry. The disciplinary authority concurring with the findings recorded by the enquiry officer, after giving further opprotunity to the respondent,pass order terminating the services of the respondent. These being the facts and circumstances of the case, in our opinion the learned Single Judge was right in dismissing the writ petition. We find that the order of the learned Single Judge is a detailed and considered one. We find it difficult to accept the observations made by the Division Bench of the High Court extracted above that the order passed by the learned Single Judge was laconic. When there was no explanation whatsoever given by the respondent in the writ petition for delay of about six years, the learned Single Judge was right in saying so and dismissing it. When the ground that the respondent was deprived of a right to appeal was not taken before the Single Judge either in the writ petition or in arguments, the Division Bench was not right and justified in saying that the learned Single Judge did not assign any reason whatsoever in support of his judgement in this regard. We fail to understand how such a non-existing ground could be considered by the learned Single Judge." (emphasis by underlining, mine) 11 In the present case, the factual position is quite converse. Surely the petitioner has been prejudiced. In the circumstances, this Court would hold that the delay would be no bar to the consideration of the case of the petitioner. Each case would have to be considered on its own facts in so far as the question of delay be concerned. The consideration for condonation of delay would basically rest in exercise of the discretionary powers of this Court to be exercised in accordance with law in the given factual foundation of the case. Each case would have to be considered on its own facts in so far as the question of delay be concerned. The consideration for condonation of delay would basically rest in exercise of the discretionary powers of this Court to be exercised in accordance with law in the given factual foundation of the case. In the facts and circumstances of the present case this Court holds that notwithstanding the delay the background of the impugned order and the nature of the relief sought this Court would be loath to reject this application merely on the ground of delay. 12. On the basis of aforesaid discussions this application is allowed. The petitioner would therefore be entitled to the amount withheld by reasons of the impugned order but without interest. Let the respondent no. 2 pass necessary consequential orders within a period of three months from the date of receipt or production of a copy of this order.