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2011 DIGILAW 1055 (MP)

Brij Mohan Singh v. State Of M. P.

2011-09-06

SUJOY PAUL

body2011
JUDGMENT ( 1. ) HEARD. This order shall also govern the disposal of W.P No.5672/2011, 5673/ 2011,5674/2011,5675/2011,5676/2011,5677/2011,5678/2011,5679/2011 and 5681/2011. The facts are taken from W.P No.5671/2011. 1. Learned counsel for the petitioner submits that earlier by an order dated 17.08.2009 a punishment was inflicted on the petitioner without giving him any opportunity by the Disciplinary Authority/Collector. Against this order, petitioner preferred an appeal under Rule 23 of M.P. C.S (CCA) Rules, 1966 (hereinafter referred to as 'Rules of 1966'). The Commissioner/Appellate Authority passed an order dated 07.12.2009 (Annexure P/3). The Appellate Authority accepted the appeal partially and quashed the order dated 17.08.2009 (Annexure P/2). The Appellate Authority remitted the matter back to the Disciplinary Authority to give opportunity to the petitioner and then proceed further. Thereafter, a show cause notice dated 07.04.2010 (Annexure P/4) was issued to the petitioner. In turn, petitioner submitted his reply (Annexure P/5). The Disciplinary Authority passed the impugned order dated 05.05.2011 and inflicted the punishment. This order is under challenge in this petition. ( 2. ) LEARNED counsel for the petitioner fairly admits that this order dated 05.05.2011 is appealable under rule 23 of the said Rules. However, by placing reliance on 2009 (2) SCC 630 (Committee of Management and Another Vs. Vice Chancellor and Others) learned counsel submits that the availability of alternate remedy is not a bar for this Court to exercise the power and jurisdiction under Article 226 of the Constitution. He further submits that the Collector has passed a nonspeaking order and such order runs contrary to the law laid down by this Hon'ble Court in the case of Mahila Rukhmani Primary Consumer Co-operative Society Vs. State of M.P and Others reported in ILR (2011) MP 354. I have heard learned counsel for the parties and perused the record. ( 3. ) RULE 23 of RULEs of 1966 reads as under:- "23. Orders against which appeal lies:- Subject to the provisions of RULE 22, a Government servant may prefer an appeal against all or any of the following orders, namely:- (i) an order imposing any of the penalties specified in RULE 10 whether made by the disciplinary authority or by any appellate or reviewing authority; The aforesaid RULEs of 1966 are complete code and provide in house redressal of grievance. On earlier occasion, when petitioner preferred an appeal against Annexure P/2, the Appellate Authority redressed his grievance, therefore by no stretch of imagination it can be said that efficacious remedy is not available to the petitioner. ( 4. ) IT cannot be disputed that despite availability of alternate remedy, this Court can exercise its powers and jurisdiction under Article 226 of the Constitution of India. However, there is a self imposed restraint on this Court while deciding regarding exercise of power under Article 226 of the Constitution of India. Supreme Court in the following judgments has held as under:- In case of Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 , it is held as under:- "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." (Emphasis added) ( 5. ) IN case of Harbanslal Sahnia v. INdian Oil Corpn. Ltd., (2003) 2 SCC 107 : M.P. State Agro INdustries Development Corpn. Ltd. v. Jahan Khan, (2007) 10 SCC 88 , it is held as under:- "suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. IN an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged." ( 6. ) IN case of Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd., (2005) 8 SCC 242 , it is held as under: - "However, there cannot be any doubt whatsoever that the question as to when such a discretionary jurisdiction is to be exercised or refused to be exercised by the High Court has to be determined having regard to the facts and circumstances of each case wherefor, no hard-andfast rule can be laid down." In case of U.P. State Spg. Co. Co. Ltd. v. R.S. Pandey, (2005) 8 SCC 264 , it is held as under:- "Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute." (Emphasis added) ( 7. ) IN case of United Bank of INdia v. Satyawati Tondon, (2010) 8 SCC 110 , it is held as under:- "we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of selfimposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance." ( 8. ) IN case of Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782 , at page 789 "23. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of INdia is not available if an efficacious alternative remedy is available to any aggrieved person. (Sadhana Lodh v. National INsurance Co. ) IN case of Kanaiyalal Lalchand Sachdev v. State of Maharashtra, (2011) 2 SCC 782 , at page 789 "23. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of INdia is not available if an efficacious alternative remedy is available to any aggrieved person. (Sadhana Lodh v. National INsurance Co. Ltd., (2003)3 SCC 524 , Surya Dev Rai v. Rani Chander Rai (2003) 6 SCC 675 and SBI v. Allied Chemical Laboratories (2006)9 SCC 252 ). 24. IN City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala (2009)1 SCC 168 , this Court had observed as under: - "30. The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether: (a) the petitioner has any alternative or effective remedy for the resolution of the dispute; (b) the person invoking the jurisdiction is guilty of unexplained delay and laches; (c) ex facie barred by any laws of limitation; (d) grant of relief is against public policy or barred by any valid law; and host of other factors." On the question of maintainability of the writ petition, the Apex Court in (2011) 2 SCC 575 (Transport and Dock Workers Union and others vs. Mumbai Port Trust and another) held as under: - "In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellants by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles." (Emphasis added) ( 9. ) IN view of the aforesaid legal position, it is clear that the discretionary jurisdiction of this Court under Article 226 of the constitution is not required to be exercised in a routine manner as held in U.P. State Spg. Co. Ltd (supra). ) IN view of the aforesaid legal position, it is clear that the discretionary jurisdiction of this Court under Article 226 of the constitution is not required to be exercised in a routine manner as held in U.P. State Spg. Co. Ltd (supra). The writ petition can be entertained if it is shown that there is something more in a case, something going to the root of the jurisdiction of the Officer, something which would show that it would be a case of palpable injustice to the writ petitioner if he is forced to adopt the remedies provided by the statute, no interference is warranted here as petitioner has not shown any such reason, which attracts aforesaid principle laid down by the Supreme Court in the aforesaid matters. Apart from this, in the recent judgment of Supreme Court in Transport and Doc Workers Union (Supra) the Supreme Court has again discouraged the tendency of adopting an over liberal approach and unnecessarily adding to their load of arrears. Accordingly, I find no reason to entertain the petition. Petitioner is at liberty to prefer an appeal under the Rules of 1966. IN the interest of justice it is made clear that, if, the petitioner prefers an appeal within fifteen days from the date of receipt of certified copy of this order, the competent Appellate Authority shall consider and decide his appeal on merits and impediment of delay will not come in the way of the petitioner. ( 10. ) WITH the aforesaid observation, petition stands disposed of. - No order as to costs.