Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 1304 (ALL)

Anil Kumar Gautam v. State of UP

2020-11-10

SARAL SRIVASTAVA

body2020
JUDGMENT : 1. Heard Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Ram Dayal Tiwari, learned counsel for the petitioner and learned Standing Counsel for respondent nos.1 to 4. 2. The brief facts of the case are that petitioner while working as Lekhpal was suspended by Up-Ziladhikari, Bansgaon, Gorakhpur by order dated 06.10.2018 in contemplation of enquiry. The charge sheet was issued on 24.01.2019 against the petitioner. In the charge sheet, four charges were levelled against the petitioner. 3. The main charge against the petitioner was that he made wrongful entries in respect of certain gatas in fasli year 1424-1429F. Besides this, the other charge against the petitioner was for causing loss to the State Government to the tune of Rs.5 crores. 4. The Tehsildar, Sadar, Gorakhpur was appointed as Enquiry Officer, who conducted the enquiry and found all the charges against the petitioner proved. Thereafter, the Enquiry Officer submitted its enquiry report to the Disciplinary Authority on 12.07.2020. 5. The Disciplinary Authority/S.D.M., Bansgaon, Gorakhpur on 16.07.2020 issued second show-cause notice alongwith enquiry report to the petitioner and granted him one week time to submit an objection against the enquiry report. 6. The petitioner on 22.07.2020 submitted objection against the enquiry report to the Disciplinary Authority/S.D.M., Bansgaon, Gorakhpur. The Disciplinary Authority/S.D.M. Bansgaon, Gorakhpur found the charges against the petitioner proved, and consequently, he passed an order on 27.07.2020 dismissing the petitioner from service, which is impugned in the present petition. 7. Learned Standing Counsel has raised a preliminary objection against the maintainability of the writ petition as the petitioner has the statutory remedy of appeal under Rule 11 of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as 'Rules, 1999') which provides that an appeal shall lie to the next higher authority from an order passed by the Disciplinary Authority. 8. To the preliminary objection of the learned Standing Counsel, Sri M.D. Singh Shekhar learned Senior Counsel for the petitioner submits that present is a case where impugned order has been passed in violation of principles of natural justice since the Enquiry Officer did not fix any date, time and place for conducting the enquiry, and further the Enquiry Officer did not summon anyone to prove the reports against the petitioner and opportunity of cross-examination was not given to the petitioner. In support of his contention, he has placed reliance upon paragraph 21 of the writ petition which is being extracted here-in-below:- “That the Enquiry Officer submitted the report dated 12.7.2020 without any oral hearing and without fixing the date, time and place to the petitioner for his defence. The Enquiry Officer has not summoned anyone to verify the report, as such opportunity of cross examination has never been given to the petitioner. True copy of the enquiry report dated 12.7.2020, is being filed herewith and marked as Annexure-15 to the present writ petition.” 9. Thus, he submits that alternative remedy is not an absolute bar to entertain a writ petition where impugned order has been passed in violation of principles of natural justice, and thus, the writ petition against the impugned order is maintainable and this Court may entertain the same. 10. I have considered the rival submissions of the parties and perused the record. 11. Before adverting to the merits of the case, it would be relevant to refer Rules, 11, 12 & 13 of Rules, 1999 which are being extracted herein below:- "11. Appeal. -(1) Except the orders passed under these rules by the Governor, the Government servant shall be entitled to appeal to the next higher authority from an order passed by the disciplinary authority. (2) The appeal shall be addressed and submitted to the appellate authority. A Government servant preferring an appeal shall do so in his own name. The appeal shall contain all material statements and arguments relied upon by the appellant. (3) The appeal shall not contain any intemperate language. Any appeal, which contains such language may be liable to be summarily dismissed. (4) The appeal shall be preferred within 90 days from the date of communication of impugned order. An appeal preferred after the said period shall be dismissed summarily. 12. Consideration of Appeals. -The appellate authority shall pass such order as mentioned in clauses (a) to (d) of Rule 13 of these rules, in the appeal as he thinks proper after considering. (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and (c) Whether the penalty is excessive, adequate or inadequate; 13. Revision. (a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and (c) Whether the penalty is excessive, adequate or inadequate; 13. Revision. -Notwithstanding anything contained in these rules, the Government may of its own motion or on the representation of concerned Government servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules; and (a) confirm, modify or reverse the order passed by such authority; or (b) direct that a further inquiry be held in the case, or (c) reduce or enhance the penalty imposed by the order; or (d) make such other order in the case as it may deem fit;" 12. Rule 11(1) of Rules, 1999 provides that except the orders passed by the Governor, under these rules, an employee can file an appeal to the next higher authority from an order passed by the disciplinary authority. 13. Rule 11 (2) of Rules, 1999 provides that appeal shall contain all material statements and arguments. 14. Rule 11 (3) of Rules, 1999 provides that appeal may not contain any intemperate language and if it contains such language, the appeal may be liable to be dismissed summarily. 15. Rule 11 (4) of Rules, 1999 provides limitation for filing the appeal is 90 days from the date of communication of the order. 16. Rule 12 of Rules, 1999 provides that the appellate authority is empowered to pass such order as mentioned in clauses (a) to (d) of Rule 13 of Rules, 1999. It also provides elaborately how the appeal is to be considered by the appellate authority. 17. Rule 13 of Rules, 1999 provides the power of revision and also orders which could be passed by the appellate authority under Rule 12 as well as revisional authority. 18. Reading of Rule 11,12 & 13 of Rules 1999 makes it amply clear that Rules,1999 provides the manner in which the appeal is to be considered by the appellate authority and what order can be passed by the appellate authority. 19. 18. Reading of Rule 11,12 & 13 of Rules 1999 makes it amply clear that Rules,1999 provides the manner in which the appeal is to be considered by the appellate authority and what order can be passed by the appellate authority. 19. At this stage, it would be apt to refer judgments of Apex Court wherein Apex Court has held that when a statutory forum is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory provision. 20. In the case of Nivedita Sharma Vs. Cellular Operators Association of India and Others 2011 (14) SCC 337, against an order passed by the State Commission under the Consumer Protection Act, 1986, the respondent-Cellular Operators Association approached the High Court. The High Court entertained the writ petition and allowed it. Against the order of High Court, an appeal was preferred by the appellant-Nivedita Sharma before the Apex Court. The Apex Court held that there are certain exceptions where the High Court can entertain a writ petition even if an alternative remedy is provided, but it should not be done as a matter of course particularly when an effective alternative remedy is provided. Paragraphs 15 & 16 of the said judgment are being extracted herein below:- "15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556 , it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge. 16. It can, thus, be said that this Court has recognized some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for rederssal of grievance still hold field." 21. In the case of Thansingh Nathmal and Others Vs. In the case of Thansingh Nathmal and Others Vs. Superintendent of Taxes, Dhubri and Others AIR 1964 SC 1419 the Apex Court has held that ordinarily, the High Court should not entertain a petition for a writ under Article 226 where the petitioner has an equally efficacious remedy. Paragraph 7 of the said judgment is being extracted hereinbelow:- "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed. The appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Art. 226 and sought to re-open the decision of the taxing authorities on questions of fact. The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." 22. Now, in the case in hand, the argument of learned Counsel for the petitioner that if there is breach of principles of natural justice, the alternative remedy is not an absolute bar to the maintainability of the writ petition is being tested on the anvil of the principles laid down by the Apex Court in the aforesaid cases. 23. In the instant case, the petitioner has stated in paragraph 21 of the writ petition that the Enquiry Officer conducted the enquiry without fixing any date, time and place for conducting the enquiry. A bald assertion has been made in paragraph 21 of the petition regarding violation of principles of natural justice. At this point, it would be pertinent to refer to the objection of the petitioner against the enquiry report before the Disciplinary Authority, which is appended as Annexure 17 to the writ petition. 24. A perusal of the objection filed by the petitioner to the second show-cause notice dated 16.07.2020 reveals that challenge to enquiry report was not laid by the petitioner on the ground that Enquiry Officer did not fix any date, time and place for conducting the enquiry and Enquiry Officer did not summon any witness to verify the reports, and opportunity of cross-examination was not given to the petitioner. This plea has been set up for the first time in the writ petition. Further, no assertion has been made in the writ petition as to what prejudice was suffered by the petitioner by the aforesaid act of enquiry officer. 25. This plea has been set up for the first time in the writ petition. Further, no assertion has been made in the writ petition as to what prejudice was suffered by the petitioner by the aforesaid act of enquiry officer. 25. There is no quarrel to the proposition of law that alternative remedy is not a bar to entertain a writ petition where there has been violation of principles of natural justice. 26. However, it is also settled in law that an appeal, generally speaking, is a rehearing by a superior authority/court on both law and fact. In the instant case, the petitioner has not challenged the enquiry report in his objection against the second show-cause notice on the ground of violation of the principle of natural justice. Since petitioner is raising the plea of violation of principles of natural justice for the first time in the writ petition, and the question whether the Enquiry Officer had fixed any date, time and place for conducting the enquiry is essentially a question of fact, this issue can very well be raised by the petitioner in appeal, which can be considered by the appellate authority under Rule12 of Rules, 1999 as it is empowered to consider all factual aspect of the matter. 27. It is further relevant to mention that Appellate Authority is vested with the powers to confirm, modify or reverse the order passed by the disciplinary authority; or it may direct that further inquiry be held in the case; or it may reduce or enhance the penalty imposed by the order; or it may make such other order in the case as it may deem fit. 28. Thus, it is apparent from the reading of Rules 11, 12 & 13 of Rules, 1999 that it provides a complete mechanism to disseminate justice if any injustice has been caused by the disciplinary authority, therefore, this Court finds it appropriate to relegate the petitioner to the remedy of appeal under the Rules, 1999. Hence, the writ petition is not maintainable and accordingly, dismissed on the ground of alternative remedy. 29. However, in the interest of justice, it is provided that if petitioner prefers any appeal within a period of eight weeks from today, the appellate authority shall consider it on merits without entering into the question of limitation.