Research › Search › Judgment

Uttarakhand High Court · body

2021 DIGILAW 382 (UTT)

Om Prakash v. State Of Uttarakhand

2021-08-03

RAVINDRA MAITHANI

body2021
JUDGMENT Ravindra Maithani, J. - Petitioner was working as a driver in the office of respondent no. 3. He was transferred and appointed to the office of respondent no. 2. Meanwhile, a departmental inquiry was conducted against him and by the impugned order dated 15.07.2021, respondent no. 1 awarded a major penalty of downgrading the pay-scale of the petitioner from Grade Pay Rs. 4200 to Grade Pay Rs. 2800. The petitioner challenges the order dated 15.07.2021 passed by respondent no. 1. 2. It is the case of the petitioner that the inquiry was conducted in a very arbitrary and illegal manner; the petitioner had replied to the authorities that on account of illness, the petitioner could not join his duties in the office; without considering the reply submitted by the petitioner, the impugned order was passed; while passing the impugned order, the provision of Rule 7 of Uttarakhand Government Servants (Discipline and Appeal) (Amendment) Rules, 2010 (for short, "2010 Rules") has been violated, because inquiry officer was appointed on 19.02.2021 and it is he, who served the chargesheet. It is the case that, in fact, it vitiates the impugned order and the proceedings. 3. Heard learned counsel for the parties and perused the record. 4. The grounds to challenge the impugned order include violation of Rule 7 of 2010 Rules and the manner in which the inquiry was conducted. 5. At the very outset, the Court wanted to know from the learned Senior Counsel for the petitioner, as to how and why, this petition should be entertained, which squarely relates to the service matter, in view of the existence of State Public Services Tribunal (for short, "the Tribunal"), as created under the Uttar Pradesh Public Services (Tribunal) Act, 1976 (for short, "the Act"). 6. Learned Senior Counsel for the petitioner would submit that the instant petition is maintainable before this Court. He would submit the following points in his arguments: (I) Alternate remedy is not a bar to entertain a petition under Article 226 of the Constitution of India. (II) In the instant petition, it is the case of the petitioner that the impugned order has been passed in violation of 2010 Rules. In case of violation of statutory rules, it is not necessary for a party to approach the Tribunal. (II) In the instant petition, it is the case of the petitioner that the impugned order has been passed in violation of 2010 Rules. In case of violation of statutory rules, it is not necessary for a party to approach the Tribunal. (III) There is no factual dispute in the instant petition, therefore, it is not necessary for the petitioner to approach the Tribunal. 7. In support of his contentions, learned senior counsel has placed reliance on the principles of law as laid down in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & others, (1998) 8 SCC 1 ; Uday Pratap Singh v. Stat of Uttarakhand & others, (2012) 1 UD 365 and Ram Lal v. State of Uttarakhand & others,2015 2 UD 25. 8. In the case of Whirlpool (supra), paragraphs 14 and 15 of the judgment have been referred to, which are as under:- "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited to any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. 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. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 9. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 9. After discussing the law on the subject, Hon'ble Supreme Court, in the case of Whirlpool Corporation (supra) concluded as hereunder:- "20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to thejurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation." 10. While arguing that violation of Rule 7 of 2010 Rules has already been held by this Court as bad in law, learned Senior Counsel referred to the judgments in the cases of Uday Pratap Singh and Ram Lal (supra). 11. It is true that in the case of Uday Pratap Singh and Ram Lal (supra), the issue which were considered also included violation of Rule 7 of 2010 Rules, but, in both the judgments, this Court did not consider the availability of alternate efficacious remedy before the Tribunal. 12. Learned State counsel would submit that the instant dispute cannot be entertained in view of the existence of the State Public Services Tribunal, as constituted under the Uttar Pradesh Services (Tribunal) Act, 1976. He would refer to the judgment in the case of Bhuvan Chandra Pandey and others vs. State of Uttaranchal and others, 2006 2 UD 439 . 13. At this point of time, learned Senior Counsel for the petitioner would submit that in the case of Bhuvan Chandra Pandey (supra), the dispute was factual and it was not related to violation of any rules. 14. In the case of Bhuvan Chandra Pandey (supra), in fact, a seniority list was under challenge, inter alia, on the ground that it was prepared in defiance to the Rules and in para 9 of it, this Court observed as hereunder:- "9. 14. In the case of Bhuvan Chandra Pandey (supra), in fact, a seniority list was under challenge, inter alia, on the ground that it was prepared in defiance to the Rules and in para 9 of it, this Court observed as hereunder:- "9. It is well settled principle of law that the High Court cannot lose sight of the fact that the matters of alternative remedy has nothing to do with the jurisdiction of the cases, normally the High Court should not interfere if there is an adequate efficacious alternative remedy available. If anybody approaches the High Court without availing the alternate remedy the High Court would ensure that he had made out a strong case or that there exist good ground to invoke the extraordinary jurisdiction. The rule of alternative remedy is essentially a rule of policy, convenience and discretion. When the petitioner files the petition before the High Court he should also state the reasons as to why he thought that the alternative remedy would not be efficacious. The High Court should not bypass the said Tribunal where the government servant is aggrieved by an order of the government pertaining to the service matter within the jurisdiction of the Tribunal." 15. The issue relating to availability of alternate and efficacious remedy has come up before the Hon'ble Supreme Court at numerous occasions. In the case of State of U.P. v. Mohd. Nooh, (1958) AIR SC 86, the Hon'ble Supreme Court observed "the fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law ." 16. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law ." 16. In the case of State of U.P. & another v. Labh Chand, (1993) 2 SCC 495 , the Hon'ble Supreme Court discussed the jurisdiction of the Tribunal as well as the jurisdiction to entertain a writ petition under Article 226 of the Constitution of India, and in para 9 of the said judgment, the Hon'ble Supreme Court observed as hereunder:- "9. When a Statutory Forum or Tribunal is specially created by a statute for redressal of specified grievances of persons on certain matters, the High Court should not normally permit such persons to ventilate their specified grievances before it by entertaining petitions under Article 226 of the Constitution is a legal position which is too well-settled. A Constitution Bench of this Court in Thansigh Nathmal and Ors. v. A. Mazid, Superintendent of Taxes,1964 6 SCR 655, when had the occasion to deal with the question as to how the discretionary jurisdiction of a High Court under Article 226 of the Constitution, was required to be exercised respecting a petition filed there-under by a person coming before it bypassing a statutory alternate remedy available to him for obtaining redressal of his grievance ventilated in the petition, has given expression to the said well-settled legal position, speaking through Shah, J., as he then was, thus": " The jurisdiction of the High Court under Article 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 Article. 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......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 Article 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." (Pages 661- 62)" (emphasis supplied) 17. In the case of Labh Chand (supra), the Hon'ble Supreme Court posed a question in para 10 and answer to it has been given in para 16. These paras 10 and 16 are as hereunder:- "10 ..as the alternate remedy which according to the Division Bench was not availed of by the respondent here before the filing of his earlier Writ Petition, being that available before the Forum of the U.P. Public Services Tribunal, it becomes necessary for us to see whether that Forum did provide to the respondent here a remedy which was both adequate and efficacious. We shall now look intothe relevant provisions of the U.P. Public Services (Tribunals)Act, 1976 (for short 'the Act') creating the U.P. Public Services Tribunal and the rules made thereunder as they would the needed light on the exact nature of the Tribunal, and the adequacy and efficaciousness of the remedy available with it. 16 ..If we have regard to the high status of the members constituting the Tribunal, expertise possessed by such members to consider the claims of employees in matters of their employment, vast powers invested in them to hold exhaustive enquiries and to grant full reliefs in matters relating to their employment, we cannot but hold that that Tribunal is the highest forum created by the Act to give full and complete relief to public servants in matters of their employment, that too, with expedition ." 18. Undisputedly, the issue involved in the instant petition relates to service matters, which begins from appointment till superannuation, as held in the case of State of Madhya Pradesh & others v. Shardul Singh, (1970) 1 SCC 108 . 19. It may be noted that in the case of Whirlpool (supra), challenge was made to a notice, which was issued without jurisdiction. 20. The judgment in the case of Whirlpool (supra) was further referred to in the judgment of Harbanslal Sahnia & another v. Indian Oil Corporation Ltd. & others, (2003) 2 SCC 107 . In para 7 of it, the Hon'ble Court observed as hereunder:- "7. ..the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In para 7 of it, the Hon'ble Court observed as hereunder:- "7. ..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 .." 21. The dispute in Harbanslal Sahnia (supra) was with regard to termination of dealership and availability of arbitration clause. The same judgment has further been noted by the Hon'ble Supreme Court in the case of State of Rajasthan & others v. Lord Northbrook & others,2019 SCCOnline SC 1117, although due to conflicting opinions, the matter was referred to the Larger Bench. 22. In the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others v. Sahngoo Ram Arya & another, (2002) 5 SCC 521 , the Hon'ble Supreme Court further dealt with the issue and observed "when the statute provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that Tribunal has no authority to grant an interim order is no ground to bypass the said tribunal." 23. The issue has also been discussed in the case of L. Chandra Kumar v. Union of India & Ors., (1997) 3 SCC 261 , in which, the Hon'ble Supreme Court interpreted and discussed the scope of Tribunals under the Administrative Tribunals Act, 1985 and the jurisdiction of High Courts and Supreme Court. In para 93 of the judgment, the Hon'ble Supreme Court observed "We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted." 24. The Tribunals have been created under the Act. It does not make any difference that which kind of matters, particularly factual or legal, will be dealt with by the Tribunal. The claims with regard to service matters may be made to the Tribunal as per Section 4 of the Act. The Tribunals have been created under the Act. It does not make any difference that which kind of matters, particularly factual or legal, will be dealt with by the Tribunal. The claims with regard to service matters may be made to the Tribunal as per Section 4 of the Act. Sub-section (1) of Section (4) of the Act is as hereunder:- "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." 25. Instant is one of such matter. The petitioner is aggrieved by the impugned order on various grounds, including that it has been passed in violation of Rule 7 of 2010 Rules. There are factual aspects as well, because it is stated that the inquiry was conducted in arbitrary and illegal manner. Therefore, this Court is of the view that in view of existence of the Tribunal, where the grievances of the petitioner can very well be addressed to, this Court should not entertain the instant petition. 26. In view of the foregoing discussions, this Court is of a view that the petitioner has an alternate efficacious remedy to seek redressal against his grievance before the Tribunal. Therefore, the writ petition may not be entertained under Article 226 of the Constitution of India and it deserves to be dismissed. 27. The writ petition is dismissed in limine.