SARDAR BHIMSINGH s/o UTTAMSING PUJARI v. NANDED SIKH GURUDWARA SACHKHAND SRI HAZUR APCHALNAGAR SAHIB, NANDED
2008-08-04
F.I.REBELLO, SANTOSH BORA
body2008
DigiLaw.ai
JUDGMENT SANTOSH BORA, J, :- Heard counsel for respective parties. 2. Rule. By consent of learned counsel for parties, Rule is made returnable fOI1hwith. 3. By this petition under Article 226 of Constitution of India, petitioner prays far quashing and setting aside order of dismissal dt. 1-6-2007, passed by the Superintendent, Gurudwara Saehkhand Board, Nanded, whereby, petitioner has been dismissed from serviee of Takhat Saebkband Sri Hazur Apchalnagar Sahib, Nanded. Facts giving rise to this petition may be statcd as under:- 4. Admittedly, petitioner - Sardar Bhimsingh Uttamsingh Pujari jOll1ed services of Takhat Saehkhand Sri Hazur Apehalnagar Sahib, Nanded, in the year 1977, as a Clerk. On 12-8-2004, be was placed under suspension by respondent No.2. The order of suspension was passed in the wake of contemplated disciplinary proceedings for alleged misconduct. It is not in dispute that, Junior Assistant Superintendent (Mr. Ranjeetsingh Daleepsingh Chiragiya) was appointed as an Enquiry Officer. Enquiry Officer conducted enquiry. Petitioner was found guilty in respect of three charges. On 15-5-2007, respondent No.2 issued a Show Cause Notice calling upon petitioner to show cause as to why he should not be dismissed from service. 1st charge pertains to conduct of petitioner in abusing staff members, misbehavior and threats to take police action, etc. 2nd charge pertains to action of cutting of threes in the premises of Gurudwara Banda Ghat Sahib, Nanded. 3rd charge pertains to disobedience of the order directing petitioner to vacate quarter occupied by him. Enquiry report disclosed that, in all eight charges were levelled against petitioner. Gurudwara Board examined in all nine witnesses in order to prove the charges so levelled. On 22-5-2007, petitioner offered explanation in writing. He denied the charges. It was, inter alia, contended that, no such incident, as alleged, has ever occurred and allegations were made at the behest of the office bearers of Gurudwara Board. So far as notice of vacating quarter is concerned, it was submitted that, petitioner had approached Civil Court, obtained an interim injunction and ultimately, said suit was dismissed on technical ground and thereafter, he filed appeal in the District Court, which is pending. It is submitted that, petitioner is innocent. He has a family, which consists of three daughters and two sons. Having regard to his long standing service of more than 30 years, proposed punishment i.e. dismissal from service is uncalld for. 5.
It is submitted that, petitioner is innocent. He has a family, which consists of three daughters and two sons. Having regard to his long standing service of more than 30 years, proposed punishment i.e. dismissal from service is uncalld for. 5. Be that as it may, on 1-6-2007 dismissal order came to be passed. It is admitted fact that, on 10-7-2007, petitioner has filed appeal before appellate authority as per Chapter V of the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956 (hereinatler referred to as the Act of 1956, for the sake of brevity). A copy of appeal memo is annexed with petition. Appeal memo shows that petitioner has already set the statutory appellate remedy in motion by filing the said appeal, thereby, raising questions of facts as well as law, praying to quash and set aside the order of dismissal passed on 1-6-2007. 6. Despite of pendency of the appeal, petitioner has approached this Court by instant petition on 29-10-2007 praying for quashing and setting aside the order of dismissal passed on 1-6-2007, raising number of grounds, mainly contending that, punishment is shockingly disproportionate, mandatory procedure was not followed, there was violation of principles of natural justice, the Board did not have power to take such action, and the order runs contra to provisions of the Act of 1956, as also, Rules of 1958 and bye-laws so made. 7. Initially, this Court issued order of Notice Before Admission to the' respondents and they appeared through Adv. Mr. Amol Gandhi. 8. Shri Pravin Mandlik, ld. Senior Advocate, instructed by Mr. Amol Gandhi, Advocate for the respondents, raised a preliminary objection for entertaining this petition on the ground that, order of dismissal dt. 1-6-2007 has already been challenged by filing statutory appeal by petitioner under the Act of 1956 and the same is pending for hearing and thus, petitioner cannot invoke extraordinary writ jurisdiction under Article 226 of the Constitution of India and he prayed for dismissal of petition, on this ground alone. 9. Heard Mr. U. S. Malte, Adv. for petitioner and Shri Pravin Mandlik, learned Senior Advocate, instructed by Mr. Amol Gandhi, Adv. for respondents. 10.
9. Heard Mr. U. S. Malte, Adv. for petitioner and Shri Pravin Mandlik, learned Senior Advocate, instructed by Mr. Amol Gandhi, Adv. for respondents. 10. Gurudwara at Nanded, which is known as "Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib" is one of the famous Gurudwaras in the country and as such, for its proper administration, the then Hyderabad Legislative Assembly, passed "The Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956" (Act of 1956, for short) (Hyderabad Act No, XXXVII of 1956), It was published in the Hyderabad Government Gazette dt. 20-9-1956, Chapter II provides for Establishment of Board and Committee for control of Gurudwara, Chapter III pertains to functions of the Board, the Committee and the Superintendent. Chapter IV contains provisions in respect of finance, Chapter V pertains to the provisions of Appeals and Revisions and it runs as under :- CHAPTER - V APPEALS AND REVISIONS 1) An appeal shall lie to the board from an order passed by the Committee or by the Superintendent under the provisions of this Act. 2) An appeal shall not be admitted unless it is preferred within 60 days from the date of the order appealed from, Provided that an appeal may be admitted after the said period if the appellant satisfies the Board that he had sufficient cause for not preferring the appeal within that period, 3) The order of the Board on appeal shall be final 47. The Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed by or as to the regularity of the proceedings of the Board, the Committee or the Superintendent acting in the exercise of any power or authority conferred by or under this Act, call for and examine the record of any case pending before or disposed of by the Board, the Committee or the Superintendent, as the case may be, pass such order with reference thereto as it thinks fit. Provided that, no order shall be revised unless notice has been given to the parties interested to appear and be heard in support of such order. It is pertinent to note that, section 61 empowers the Government to frame rules for giving effect to the provisions of the said Act.
Provided that, no order shall be revised unless notice has been given to the parties interested to appear and be heard in support of such order. It is pertinent to note that, section 61 empowers the Government to frame rules for giving effect to the provisions of the said Act. Consequently, in exercise of powers conferred by section 61 of the Act of 1956, the then Government of Bombay, framed rules viz, 'The Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Rules, 1958" (hereinafter referred to as the Rules of 1958, for the sake of brevity), On account of State Reorganization in the year 1957, five districts - which were falling in the region commonly known as Marathwada Region - came to be attached to the then Bombay State and accordingly, the Rules of 1956 were framed by the then Bombay State, Chapter IV of the Rules of 1956 pertains to powers of the Board in respect of staff and Rule 14, which deals with power to suspend or dismiss office holder, reads thus :- Rule 14. Power to suspend or dismiss holder. - The Board may suspend or dismiss any office holder including the Superintendent on any of the following grounds namely : - 1) wilfully disobeys lawful orders issued by the Board or the committee or by any authority competent to issue them; 2) is guilty of malfeasance misfeasance, breach of trust or neglect of duty; 3) has misappropriated or improperly dealt with the properties of the Gurudwara; or 4) is of unsound mind or physically unfit to discharge the functions of his office; 5) is guilty of misconduct of such a nature as to render him morally unfit for his office; 6) wilful breach of any rule or incompetence or for any other good or sufficient reasons; Provided that no office holder shall be removed unless he is given an opportunity of showing cause against his removal. Chapter V pertains to the procedure of enquiries and powers of the Board. Section 62 of the Act of 1956, empowers Gurudwara Board to make bye-laws. Accordingly, bye-laws are framed viz. "Takhat Slui Hazur Sahib Bye-Laws, 1975" (hereafter referred to as the Bye-laws of 1975 for the sake of brevity). The Government of Maharashtra has granted previous sanction for the said bye-laws. The Bye-laws are published as per sub-section (3) of the section 62 of the Act of 1956.
Accordingly, bye-laws are framed viz. "Takhat Slui Hazur Sahib Bye-Laws, 1975" (hereafter referred to as the Bye-laws of 1975 for the sake of brevity). The Government of Maharashtra has granted previous sanction for the said bye-laws. The Bye-laws are published as per sub-section (3) of the section 62 of the Act of 1956. The Bye-law 24 is relevant and it pertains to disciplinary matter. It reads thus 24. Disciplinary matters. - In regard to disciplinary matters, the provisions the Bombay Civil Services (Conduct, Discipline and Appeals) Rules, shall apply in relations to the Employees of the Board insofar as they are not in consistent with the provisions of the Act, or rules framed thereunder, as they apply in relations to Government servants, within the limitation prescribed by the Rule 15 of the Nanded Sikh Gurudwara Sachkhand Slui Hazur Apchalnagar Sahib Rules, 1958. While dealing with these matters the Board shall follow these provisions with the modifications that the powers exercised by Government shall be exercised by the Board, the powers exercised by the Head of the Department shall be exercised by the Chairman and other powers exercisable by the Head of Officer shall be exercised by the Superintendent." 11. It is pertinent to note that, aforesaid provisions of the Act, the Rules and the Bye-laws, clearly show that, petitioner has a remedy of appeal for challenging the order of dismissal dt. 1-6-2007. The appeal is a statutory right. As stated hereinabove, petitioner has already filed appeal and challenged order of dismissal dt. 1-6-2007. In the appeal, petitioner has set out all the available grounds, raising questions of facts and law in respect of non-observance of mandatory procedure while holding departmental enquiry as also non-observance of principles of natural justice and also challenged the constitution of the Administrative Committee. It is significant to note that, order of dismissal was passed on 1-6-2007 and statutory appeal has been filed on 10-7-2007, whereas, this petition under Article 226 has been filed on 29-10-2007 i.e. just four months after the filing of the appeal. 12. It is well settled that, right of an appeal is a statutory appeal. When such a remedy is provided by a statute, an aggrieved person or a party has to file an appeal for redressal of grievance. Normally, an appellate authority is entitled to consider a question of fact as well as law.
12. It is well settled that, right of an appeal is a statutory appeal. When such a remedy is provided by a statute, an aggrieved person or a party has to file an appeal for redressal of grievance. Normally, an appellate authority is entitled to consider a question of fact as well as law. An appellate authority may entertain a grievance as regards jurisdiction and authority of an officer who passed an order under challenge. As a remedy of an appeal is wide, a grievance as regards constitution of the Committee, non-observance of procedure prescribed in law for holding enquiry and all allied matters can very well be gone into by an appellate authority. A grievance as regards non-observance of principles of natural justice, fairness as well as non-application of mind by disciplinary authority can also be made before an appellate authority. Besides remedy of an appeal, said Act of 1956 also provides a remedy of a revision under section 62, which is parimateria with provisions of section 115 of Code of Civil Procedure. When a remedy of a revision is provided by the statute, remedy of a judicial review; by way of a writ petition under Article 226 or 227 of the Constitution of India, for redressal of grievance as regards dismissal order; can be denied. 13. It is true that, a remedy by way of extraordinary writ jurisdiction under Article 226 of the Constitution can be availed and in an exceptional case, this Court may entertain a petition. But, in the facts and circumstances of this case, despite the fact that petitioner has already filed an appeal and the appeal is pending for consideration before competent appellate authority, petitioner has filed this petition under Article 226, which, in our opinion, deserves to be rejected in limine, only on the ground that it is wholly misconceived. 14. Accordingly, writ petition stands rejected. However, in the facts and circumstances of this case, we direct the appellate authority/respondent No. 1 to decide pending appeal of petitioner, as expeditiously as possible and in any case, within a period of four months from today. Rule discharged. No order as to costs. Writ petition dismissed