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2008 DIGILAW 129 (UTT)

Hare Ram Gupta v. State of Uttarakhand

2008-03-26

J.C.S.RAWAT, V.K.GUPTA

body2008
Judgment V.K. Gupta, C.J. By this common judgment, both these petitions are being disposed of together. 2. In both these petitions, mainly and primarily, the orders placing the petitioners under suspension have been challenged. It is the admitted case of the petitioners that the petitioners have straightway approached this Court by invoking this Court's extra-ordinary writ jurisdiction under Article 226 of the Constitution of India without having first availed of the alternative remedy of approaching the Uttarakhand State Public Service Tribunal in terms of Section 4 of the U.P. Public Services (Tribunal) Act, 1976 ('1976 Act' for short). 3. At the very threshold, a preliminary objection has been raised by the respondents about the maintainability of these petitions in this Court on the ground that since the petitioners, in both the cases, had the alternative remedy of approaching the Tribunal under Section 4 of 1976 Act and the said alternative remedy being efficacious, these writ petitions may be dismissed on this ground alone and the petitioners be directed to approach the Tribunal 4. The learned counsel for the petitioners, in both the cases, have made two-fold submissions in support of their contention that the writ petitions are maintainable in this Court. Their first contention is that the Tribunal has no jurisdiction to entertain a claim petition under Section 4 of 1976 Act with respect to a suspension order. The second submission, which also is in the nature of an alternative submission, is that if it is held that the Tribunal has the jurisdiction to entertain the claim petition under Section 4 with respect to a suspension order, the alternative remedy is not at all efficacious and it is illusory, inasmuch as, in terms of sub-section (5-B) of Section 5 of 1976 Act, the Tribunal has no power as well as the jurisdiction to grant any interim relief with respect to an order of suspension, the petitioners are left with no option but to approach this Court directly by invoking this Court's writ jurisdiction under Article 226 of the Constitution of India because the relief claimed by the petitioners cannot be effectively granted to them unless the operation of the suspension orders, in both the cases, is stayed. 5. Sub-section (1) of Section 4 of 1976Act (this sub-section alone, being relevant for our purposes), which deals with the issue of the Tribunal entertaining claim petitions, reads thus: "4. 5. Sub-section (1) of Section 4 of 1976Act (this sub-section alone, being relevant for our purposes), which deals with the issue of the Tribunal entertaining claim petitions, reads thus: "4. Reference of claim to Tribunal. - (1) Subject to the other provisions of this Act, a person who is or has been a public servant and is aggrieved by an order pertaining to a service matter within the jurisdiction of the Tribunal, may make a reference of claim to the Tribunal for the redressal of his grievance." 6. Section 5 of 1976 Act relates to the powers and procedure of the Tribunal and contains various stipulations and provisions with respect to the exercise of the power by the Tribunal in deciding the claim petitions and the various aspects of the procedure to be applied and adopted by it for disposing of such claim petitions. Whereas sub-section (5-A) of Section 5 restrains the Tribunal from granting any interim order except in compliance with the stipulations contained in Clauses (a) and (b) thereof (but, in effect and substance, proviso to Clauses (a) and (b) being read together with these two clauses, clothing the Tribunal with the power of granting interim relief), sub-section (5-8) of Section 5 puts a total embargo and operates as a complete bar with respect to the jurisdiction of the Tribunal in granting any interim relief or passing any interim order, whether by way of injunction or stay, with respect to certain types and categories or orders mentioned therein such as suspension, dismissal, removal etc. etc. In other words, as per sub-section (5-8) supra, the Legislature has completely and clearly prohibited and barred the Tribunal, unequivocally and without any reservation, in granting any interim order with respect to the cases I categories of cases mentioned in this sub-section. etc. In other words, as per sub-section (5-8) supra, the Legislature has completely and clearly prohibited and barred the Tribunal, unequivocally and without any reservation, in granting any interim order with respect to the cases I categories of cases mentioned in this sub-section. For ready reference, sub-sections (5-A) and (5-8) of Section 5 of 1976 Act are reproduced hereunder, which read thus: "(5-A) No interim order (whether by way of injunction or stay or in any other manner) shall be passed by the tribunal on or in any proceedings relating to any reference unless (a) copies of such reference and application for interim order, along with all documents' in support of the plea for such interim order are furnished to the party against whom such petition is filed, and (b) at least fourteen day's time is given to such party to file a reply and opportunity is given to it to be heard in the matter: Provided that the Tribunal may dispense with the requirements (a) and (b) and may, for reasons to be recorded, make an interim order, as an exceptional measure, if it is satisfied that it is necessary so to do for preventing any loss to the petitioner which cannot be adequately compensated in money, but any such interim order shall, if it is not vacated earlier, cease to have effect on the expiry of the period of 14 days from the date on which it is made unless the said requirements have been complied with before the expiry of the said period and the Tribunal has continued the operation of that order. (5-8) Notwithstanding anything in the foregoing sub-sections, the Tribunal shall have no power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant, and every interim order (whether by way of injunction or stay or in any other manner), in respect of such matter, which was made by a Tribunal before the date of commencement of this sub-section and which if in force on that day, shall stand vacated." 7. In the case of Public Service Tribunal Bar Association Vs. In the case of Public Service Tribunal Bar Association Vs. State of U.P. and another reported in (2003) 4 see 104, their Lordships of the Supreme Court were dealing with the vires of various provisions of 1976 Act, including sub-section (5-8) of Section 5. Even while upholding the constitutional vires of the challenged provisions of the 1976 Act, including subsection (5-8) of Section 5, in the course of the observations made in para 39 of the said judgment, with particular reference to cases relating to the suspension orders, it was observed as under: "39. ........................... The legislature in its wisdom thought it proper not to confer the power to grant interim relief on the Tribunal. The State Legislature had the legislative competence to constitute a Services Tribunal and it was for it to define the parameters of the jurisdiction of the Tribunal. An employee is not left without any remedy. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court by filing petition under Article 226 or 227 of the Constitution of India. In an extreme and rare case where the order is passed mala fide or without following the procedure under the law then the employee can certainly approach the High Court under Article 226 of the Constitution for interim relief. The High Court in such an extreme and rare case may in its wisdom stay the operation of the said order. In the case of suspension, reduction in rank or reversion, the relationship of employer and employee remains. Normally, the suspension is made during a contemplated or a pending enquiry. During the suspension period the employee is entitled to the suspension allowance. If the suspension continues for an indefinite period or an order of suspension is passed mala fide then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution of India. In case the order of reduction in rank or reversion is set aside then the employee can be compensated by adequately moulding the relief while giving the relief at the final stage. Power of the Tribunal to grant interim relief has been taken away qua certain matters not completely. In case the order of reduction in rank or reversion is set aside then the employee can be compensated by adequately moulding the relief while giving the relief at the final stage. Power of the Tribunal to grant interim relief has been taken away qua certain matters not completely. The power has been taken away in matters where the grant of the said relief at the interim stage would result in giving the relief which would normally be given while disposing of the case finally. Simply because in rare cases of microscopic number a case is made out for stay of orders of suspension, transfer, reduction in rank, reversion or termination dismissal and compulsory retirement and the employee is liable to approach the High Court for interim stay by itself is no ground to strike down a law enacted by the legislature which is within Its competence to enact." 8. In the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another reported in (2002) 5 SCC 521, while dealing with the specific issue of a writ petition under Article 226 of the Constitution of India not being maintainable directly in the High Court and the writ petitioner being sent first to the Tribunal under Section 4 of 1976 Act, their Lordships observed and held as under: "12. Mr. Sunil Gupta, learned counsel appearing for the petitioner contended that the remedy before the Tribunal under the U.P. Public Services (Tribunals) Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instance itself. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the Tribunal. In the said view of the matter, the appeals are dismissed. No costs." 9. A combined reading of the observations made in Public Services Tribunal Bar Association case (supra) and the observations made in Sahngoo Ram Arya (supra), both extracted and quoted above, clearly suggests to us, without any manner of doubt, that, first and foremost, the Tribunal under 1976 Act, while exercising its jurisdiction under Section 4, has the power to receive, entertain and decide and dispose of a claim petition challenging a suspension order and, secondly, because of this jurisdiction and power vesting in the Tribunal, a writ petition under Article 226 of the Constitution of India is not maintainable in the High Court directly inasmuch as a person, aggrieved of a suspension order, has the alternative and efficacious remedy of approaching the Tribunal. The presence and existence of such a power, therefore, operates as a self-imposed bar as far as the exercise of jurisdiction by the High Court in entertaining writ petitions directly is concerned. The fact that, under sub-section (5-B) of Section 5 of 1976 Act, the Tribunal has no power to grant any interim order with respect to a suspension order, does not militate against the jurisdiction of the Tribunal and does not permit the person aggrieved to approach this Court directly. In a given case where, in view of its peculiar facts and circumstances, a person desires or wishes to obtain an interim relief qua the operation or continued operation of a suspension order, on such relief being declined by the Tribunal, such a person has the remedy of approaching this Court under Article 226 of the Constitution of India against the order declining the interim relief by the Tribunal even while the claim petition, filed by such person under Section 4 of 1976 Act, is still pending before the Tribunal. 10. 10. For the foregoing reasons, therefore, we have no hesitation in holding that these writ petitions are not maintainable. The writ petitions are accordingly dismissed only on the ground of non-maintainability in view of the observations made as above, but with liberty to the petitioners to approach the Tribunal in terms of Section 4 of 1976 Act. If, in the meanwhile, by operation of any law, the claim petitions might have become time-bared, the petitioners would be at liberty to apply for condonation of the delay. The pendency of these writ petitions in this Court shall be considered as a good enough ground for condonation of the delay.