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2006 DIGILAW 471 (CAL)

MS. MEENA SARDAR v. THE LIEUTENANT GOVERNOR

2006-07-31

ASHIM KUMAR ROY

body2006
Before Ashim Kumar Roy, J. ( 1 ) THE Judgment of the Court was as follows : this is an application under Article 226 of the Constitution directed against an order of termination passed by the respondent No. 4 whereby the petitioner, a Home Guard, was terminated from the roll of A and N islands Home Guards organization with immediate effect. ( 2 ) HEARD Mr. B. K. Das, learned Advocate appearing for the petitioner and Mr. A. K. Ray, learned senior Advocate appearing on behalf of the respondents. Considered the materials on record. ( 3 ) AT the very outset Mr. Ray appearing on behalf of the respondent authorities raised a preliminary objection about the maintainability of this application. According to Mr. Ray, against the impugned order of termination the petitioner ought to have moved before the Central Administrative Tribunal and this Court has no jurisdiction to entertain a writ application directly where the petitioner has not exhausted his remedy lying before the learned Tribunal. Mr. Das to resist such point strongly relied on an unreported decision of a circuit Bench at Port Blair of this Hon'ble Court, passed in connection with wpct No. 073 of 2003. ( 4 ) I have carefully gone through the decision and found the Division bench has held as follows : - "under section 14 of the Administrative Tribunal Act the Central administrative Tribunal has jurisdiction in relation to the recruitment matter concerning recruitment to any civil service or a civil post under the Union and alt service matters pertaining to service in connection with the affairs of the Union, concerning a person appointed to any civil service or post or a person whose service has been placed at the disposal of the Central govemmandnt. The Home Guards Act does not provide for a recruitment process. The engagement as Home Guards is not an engagement in service or an engagement to a civil post under the Union. Therefore, we do not find that the respondents could maintain the claim before the learned Central Administrative Tribunal for the grievances ventilated by them. " In view of the aforesaid decision, the submissions made on behalf of the respondent authorities stand rejected. Therefore, we do not find that the respondents could maintain the claim before the learned Central Administrative Tribunal for the grievances ventilated by them. " In view of the aforesaid decision, the submissions made on behalf of the respondent authorities stand rejected. ( 5 ) NOW, coming to the main issue involved in this case, I found the only grievance as has been agitated before this Court by the learned Advocate of the petitioner is that the respondent authority without giving any opportunity of hearing to the petitioner, terminated her service and removed her name from the roll of A and N Islands Home Guards Organization. ( 6 ) IN the instant case, the service conditions olithe petitioner as Home guard under the employment of A and N Islands Home Guards Organization are controlled under the A and N Islands Home Guards Regulation, 1964. The petitioner has been asked to show cause by the respondent No. 4, by a Show-Cause notice dated 2nd June, 2006, as to why she shall not be discharged from the roll under Rule 13 (2) of the A and N Islands Home Guards Regulation, 1964, on the various allegations mentioned in the said Show-Cause notice being Annexure 'p-5' to the writ petition. In response to such Show-Cause notice the petitioner has duly replied which is Annexure 'p-6' to the writ petition. However, it is the definite case of the writ petitioner that by the impugned order No. 205 dated July 4,2006 the respondent No. 4 discharged the petitioner from the roll of the A and N Islands Home Guards Organization with immediate effect, without affording her any opportunity of hearing before passing the impugned order. ( 7 ) MR. Das challenging such termination on the ground of violation of principle of natural justice, relied on an unreported decision of Circuit Bench at port Blair of this Hon'ble Court, in MAT 007 of 2006. The relevant portion from the said decision is extracted below : - "we are of the view that whatever may be the procedure this must conform to the norms and principle of natural justice. The provision for opportunity of hearing is provided however, opportunity of hearing in our opinion taking successive steps, to wit, is to examine, consider and deal with, the point raised by the delinquent and then render decision. The provision for opportunity of hearing is provided however, opportunity of hearing in our opinion taking successive steps, to wit, is to examine, consider and deal with, the point raised by the delinquent and then render decision. In their representation it has been specifically alleged on actual and legal aspect that there was no warrant to issue Show-Cause notice alleging neglect in discharging in duty. It is also alleged that desertion of the place of posting or absence does not call for any disciplinary action within the said regulation. It is further alleged that at the relevant time there was no order or command to be carried out, question of neglecting to discharge duty did not or could not arise. In the representation it has been stated that they were compelled to leave the said place under the circumstances and the ground mentioned were absolutely on account of natural calamity and beyond their control. " ( 8 ) IT maybe mentioned in the instant case, in her representation the petitioner specifically denied all the allegations made against her, more particularly, the allegations of an affairs with another Home Guard and also specifically urged that due to her illness she was unable to attend her duties. She further denied that she, ever in writing, informed the respondent authorities that she has no cordial relation with her parents and also stated that she was compelled to leave the place actually for her treatment. However, from the order passed by the respondent authorities it is never clear on what basis the contention raised by the writ petitioner was abandoned. ( 9 ) I found that the impugned order has been passed by the respondent no. 4 in exercise of the power conferred on him under Section 13 (1) of the andaman and Nicobar Islands Home Guards Regulation, 1964, although the provisions of Regulation 13 (2) of the said Regulation specifically provided that no order under sub-section (1) shall be passed unless the member of the Home guards affected by such order is given an opportunity to be heard in his defence. In my view, not only the respondent authority by denying the petitioner an opportunity of hearing before discharging him from the roll has acted in complete disregards and violation of the principle of natural justice but such order is also in clear contravention of statutory provisions embodied in Clause 13 (2) of the andaman and Nicobar Islands Home Guards Regulation, 1964, which provides for an opportunity of hearing to a delinquent before passing of any order of termination from service against him. ( 10 ) LASTLY, I found from the Andaman and Nicobar Islands Home Guards regulation, 1964 that Regulation 15 provides for an appeal before the commandant against an order of Area Commandant. As such, a question arose in my mind that when there is a provision of appeal in the statute itself, by way of an alternative remedy, whether the petitioner without exhausting such remedy can invoke the writ jurisdiction of this Hon'ble Court for necessary relief. ( 11 ) IN order to appreciate the scope of a writ Court, in a situation in hand, the Apex Court held, in the case of Whirlpool Corporation v. Registrar of trade Marks, Mumbai and Ors. reported in (1998)8 SCC 1 , as follows : - "15, Under Article 226 of the Constitution, the High Court, having regard to (he 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 flights 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. " ( 12 ) I found the ratio of the aforesaid decision is squarely applicable to the facts and circumstances of the instant case where the impugned order passed in clear violation of the principle of natural justice. As such, the provision of the appeal in the statute cannot operate as a bar on the ground of availability of alternative remedy. As such, the provision of the appeal in the statute cannot operate as a bar on the ground of availability of alternative remedy. ( 13 ) I, therefore, set aside the impugned ordenand direct the petitioner to be reinstated in her service, however, without any payment of back wages. The disciplinary authority is given liberty to proceed afresh preferably by holding a de novo enquiry after giving full opportunity to the petitioner to adduce her evidence to refute the allegation made against her, itf she so desires. At the same time the disciplinary authority will also be at liberty to rely on any report, evidence or document by supplying the same to the delinquent beforehand and the person on whose report and evidence the respondent authorities proposes to rely upon, such persons must be presented for cross-examination by the petitioner. I further direct an independent officer who has nothing to do with this matter be appointed as enquiry officer in terms of the Regulation. If so desires the delinquent be provided with a law knowing person i n her assistance but not a lawyer, unless the respondent authorities sought assistance from a law knowing person. The de novo disciplinary proceeding shall be concluded within a period of five months from the date of receipt of communication of the order and notice of hearing be given to the petitioner at least four weeks in advance. I further make it clear the order which will be passed must be a speaking and reasoned order. ( 14 ) THIS application stands allowed without any order as to costs.