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2009 DIGILAW 816 (JHR)

Tribhuwan Prasad Singh v. Bharat Coking Coal Ltd.

2009-05-21

D.K.SINHA, GYAN SUDHA MISRA

body2009
Order This appeal has been preferred by an employee of the Bharat Coking Coal Limited against the order dated 3.9.2008 passed by the learned Single Judge in W.P.(S) No. 598 of 2008, by which the writ petition preferred by him was dismissed. 2. The petitioner/appellant herein had filed a writ petition initially for quashing the charge framed against him on 28.3.2007 alleging embezzlement of approximately Rs. 30,000/- for which, a departmental enquiry was initiated and he was put under suspension. Finally after the departmental enquiry was concluded, the petitioner was dismissed from service. Simultaneously, a criminal case also had been lodged against the appellant .and the same also resulted into his conviction. Consequently, the petitioner was dismissed from service in pursuance to the findings recorded in the departmental proceeding as also by the criminal Court which had upheld the charge of embezzlement lodged against the appellant. 3. The petitioner/appellant herein filed a writ petition before the learned Single Judge and the learned Single Judge after hearing the counsel for the parties, took notice of the fact that the petitioner's service had been finally terminated after conclusion of the departmental enquiry and hence, the same did not require interference. Besides this, the learned Single Judge also took note of the fact that the petitioner/appellant had an alternative remedy of appeal before the appropriate forum and without availing the same, the writ petition was filed. The learned Single Judge further analyzed the evidence as to whether the charge levelled against the appellant was substantially proved or not and in the process, observed to the effect that the appellant was guilty of the charge, which was held to have been proved in the departmental proceeding. 4. Learned counsel for the appellant assailed the order passed by the learned Single Judge on several grounds. But the preliminary question arose as to whether the writ petition could have been allowed to be filed bye-passing the alternative remedy of appeal before the department itself. Having been confronted with this question, it was submitted that the learned Single Judge although took note of the fact that an alternative remedy was available to the petitioner/appellant, the fact remains that the learned Single Judge has also expressed his opinion on the merit of the findings recorded in the departmental proceeding and therefore, it is his contention that even if the appellant prefers an appeal, the observations made by the. learned Single Judge is bound to influence the appellate forum. 5. We find substance in the aforesaid contention only to the extent that if the learned Single Judge took the view that the appellant had an alternative remedy, then in that event, the appreciation of the findings recorded in the departmental proceeding should not have been made, •when it was noticed that the petitioner/ appellant had filed the writ petition without exhausting the alternative remedy. At this juncture, we deem it appropriate to record that a mandatory provision while filing a writ petition is to the effect that any person filing a writ petition has to make a declaration that he has no other alternative and efficacious remedy than to file a writ petition under Article 226 of the Constitution, which in our opinion, is not an empty ritual as he has to bear serious repercussion in the event of failure to establish the same as the petitioner is not expected to approach the Court under Article 226 for issuance of an appropriat~ writ without exhausting the alternative and efficacious remedy available to him under law. 6. In the instant matter, the appellant had clearly a remedy of appeal against the enquiry report, by which he had been dismissed from service. In spite of this, the petitioner filed a writ petition before the learned Single Judge and also incorporated an averment that he has no other alternative and efficacious remedy which clearly is not correct. What prompted the petitioner to bye-pass the appellate forum is not clear, yet the petitioner cannot be allowed to approach the appellate forum and file a writ petition by passing the appellate forum as that would clearly be in contravention of the rules laid down in regard to the departmental proceeding. However, we find force in the submission that once the petitioner was precluded from filing a writ petition on •the ground that he has an alternative remedy, then the merit of the matter was not required to be examined by the Court under its writ jurisdiction. 7. However, we find force in the submission that once the petitioner was precluded from filing a writ petition on •the ground that he has an alternative remedy, then the merit of the matter was not required to be examined by the Court under its writ jurisdiction. 7. In that view of the matter, we modify the order passed by the learned Single Judge to only the extent that if the petitioner/appellant prefers an appeal against the order of dismissal based on the enquiry report, then the appellate authority shall decide the appeal on merit without being influenced in any manner with the observations made by the learned Single Judge in the impugned order. 8. This appeal, accordingly, is dismissed, subject to the aforesaid modification.