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2024 DIGILAW 1149 (ALL)

Sanjay Kumar Singh v. State of Uttar Pradesh

2024-04-29

ABDUL MOIN

body2024
JUDGMENT : ABDUL MOIN, J. 1. Heard learned counsel for the petitioner and Sri Saharsh Srivastava, learned Additional Chief Standing Counsel appearing for the respondents. 2. Instant petition has been filed challenging the order of removal dated 12.01.2024, a copy of which is Annexure-2 to the writ petition. 3. A preliminary objection has been taken by Sri Saharsh Srivastava, learned Additional Chief Standing Counsel that the petitioner has an alternative and statutory remedy of filing an appeal against the order impugned. 4. However, learned counsel for the petitioner states that as the order impugned is patently without jurisdiction having been passed by the Sub Divisional Magistrate, who is not the appointing authority rather the appointing authority is the District Magistrate. Further, the order impugned has been passed in gross violation of principles of natural justice and consequently placing reliance on the judgment of the Apex Court in the case of Harbanslal Sahnia and another vs. Indian Oil Corporation Limited and others, AIR 2003 SC 2120 and a Division Bench judgment of this Court passed in Special Appeal No. 73 of 2012 in re: Rajendra Prasad Upadhyaya vs. State of Uttar Pradesh and others decided on 29.03.2012, the contention is that as the order impugned is patently without jurisdiction and in gross violation of natural justice as such the statutory and alternative remedy of appeal would not be an absolute bar in this Court entertaining the petition. Reliance has also been placed on the judgment of this Court in the case of Smt. Manju Devi vs. State of Uttar Pradesh and others passed in Writ-C No. 29150 of 2018 decided on 28.08.2018. 5. Whether the remedy of statutory appeal would be an absolute bar for entertaining a petition has been considered threadbare recently by the Supreme Court in the case of M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer Cum Assessing Authority and others passed in Civil Appeal No. 5393 of 2010 wherein the Apex Court vide judgment and order dated 01.02.2023 after considering its earlier judgments has held as under: “4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. 5. A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in 1958 SCR 595 (State of Uttar Pradesh vs. Mohd. Nooh) had the occasion to observe as follows: “10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury’s Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). 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 and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.” 6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights. (ii) where there is violation of principles of natural justice. (iii) where the order or the proceedings are wholly without jurisdiction. (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision reported in 2021 SCC Online SC 884 (Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited) has reiterated the same principles in paragraph 11. 8. That apart, we may also usefully refer to the decisions of this Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & Ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. 9. Now, reverting to the facts of this appeal, we find that the appellant had claimed before the High Court that the suo motu revisional power could not have been exercised by the Revisional Authority in view of the existing facts and circumstances leading to the only conclusion that the assessment orders were legally correct and that the final orders impugned in the writ petition were passed upon assuming a jurisdiction which the Revisional Authority did not possess. In fine, the orders impugned were passed wholly without jurisdiction. Since a jurisdictional issue was raised by the appellant in the writ petition questioning the very competence of the Revisional Authority to exercise suo motu power, being a pure question of law, we are of the considered view that the plea raised in the writ petition did deserve a consideration on merits and the appellant’s writ petition ought not to have been thrown out at the threshold. 10. Reliance placed by the High Court on the decision in Titagarh Paper Mills (supra), in our view, was completely misplaced. The respondent Electricity Board had levied coal surcharge on the appellant company in terms of an agreement. Such agreement contained an arbitration agreement in clause 23. Instead of pursuing its remedy in arbitration, the appellant company unsuccessfully invoked the writ jurisdiction. This Court was approached whereupon it was held that in view of the issues raised, there was no reason why the appellant company should not pursue its remedy in arbitration, having solemnly accepted clause 23 of the agreement, and instead invoke the extraordinary jurisdiction of the high court under Article 226 of the Constitution to determine questions which really form the subject matter of the arbitration agreement. This decision could not have been of any relevance having regard to the issue presented for resolution before the High Court by the appellant, particularly when the disputes inter se were not referable to arbitration.” 6. From perusal of the aforesaid judgment in the case of Godrej Sara Lee Limited (supra), it emerges that the Hon’ble Supreme Court has carved out the distinction between the ‘maintainability’ of a writ petition and ‘entertainability’ of a writ on the ground of alternative remedy. 7. The Hon’ble Supreme Court has held that the ‘maintainability’ of a writ petition goes to the root of the matter and the mere fact that the party invoking jurisdiction of the High Court under Article 226 of the Constitution has not pursued the alternative remedy of appeal or revision, would not oust the jurisdiction of the High Court and render the writ petition being ‘not maintainable’. 8. So far as the ‘entertainability’ of the writ petition is concerned, Hon’ble Supreme Court has held that the question of “entertainability” is entirely within the realm of discretion of the High Courts, writ remedy being discretionary and a writ petition despite being maintainable may not be entertained by a High Court for various reasons or relief could be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. 9. The Apex Court has again reiterated the principles of law laid down by it earlier in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 wherein the Hon’ble Apex Court has held that a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute in the following exceptions namely (a) where the writ petition seeks enforcement of any of the fundamental rights, (b) where there is violation of principles of natural justice, (c) where the order or the proceedings are wholly without jurisdiction, or (f) where the vires of an Act is challenged. The same principle of law has been laid down in the earlier judgment of Hon’ble Apex Court in the case of Harbanslal Sahnia (supra) and the Division Bench judgment of this Court in the case of Rajendra Prasad Upadhyaya (supra). 10. The same principle of law has been laid down in the earlier judgment of Hon’ble Apex Court in the case of Harbanslal Sahnia (supra) and the Division Bench judgment of this Court in the case of Rajendra Prasad Upadhyaya (supra). 10. In the instant case, as already indicated above, the petitioner has approached the writ Court directly without filing of an appeal, as per rules, on the ground that (a) the order impugned is patently without jurisdiction and (b) that the order is patently violative of the rules of natural justice. 11. Considering the aforesaid two grounds as have been raised on behalf of the petitioner, the Court thus proceeds to examine as to whether the order impugned is without jurisdiction and in gross violation of the rules of natural justice so as to entertain the writ petition despite alternative remedy of appeal. 12. So far as the order being without jurisdiction is concerned, learned counsel for the petitioner contends that the appointing authority of the petitioner is the District Magistrate while the order impugned has been passed by Sub Divisional Magistrate and as the order has been passed by a lower authority than the appointing authority the said act would render the order being without jurisdiction. 13. In this regard, learned counsel for the petitioner has invited the attention of this Court towards the appointment order of the petitioner as Collection Amin dated 20.08.1997, a copy of which is Annexure-3 to the petition. Placing reliance on the said appointment order which in fact has been issued by the Sub Divisional Magistrate but the said order also indicates that the select list has been approved by the District Magistrate, the argument of learned counsel for the petitioner is that as the select list has been approved by the District Magistrate consequently even if the appointment order has been issued by the Sub Divisional Magistrate it is the District Magistrate who is the appointing authority of the petitioner. 14. The aforesaid argument of learned counsel for the petitioner apart from being patently fallacious is also patently misconceived considering the fact that admittedly the services of the petitioner are governed by the Uttar Pradesh Collection Amins Service Rules, 1974 (hereinafter referred as the ‘Rules, 1974’). Rule 19-A of the Rules, 1974 categorically indicates that the appointing authority of a Collection Amin is the Sub Divisional Magistrate. Rule 19-A of the Rules, 1974 categorically indicates that the appointing authority of a Collection Amin is the Sub Divisional Magistrate. Thus, considering the provisions of Rule 19-A of the Rules, 1974 vis-a-vis the appointment order of the petitioner dated 20.08.1997 which in fact has been issued by the Sub Divisional Magistrate and the removal order of the petitioner has also been issued by the Sub Divisional Magistrate consequently it cannot be said that merely because the select list had been approved by the District Magistrate, consequently it is the District Magistrate who would become the appointing authority of the petitioner. Thus, the aforesaid argument is rejected. It is held that the appointing authority of the petitioner is in fact the Sub Divisional Magistrate as per Rules, 1974. 15. So far as the ground that the order has been passed in gross violation of rules of natural justice, reliance has been placed on the judgment of Apex Court in the case of Krushnakant B. Parmar vs. Union of India passed in Civil Appeal No. 2106 of 2012 decided on 15.02.2012 to contend that as one of the charges against the petitioner was his unauthorized absence consequently the disciplinary authority was required to prove that the absence is willful and in absence of such finding the absence would not amount to misconduct and as such the disciplinary authority has patently erred in law in removing the petitioner from service on the ground that the petitioner was unathorisedly absent. 16. Apart from the fact that in case the disciplinary authority may have arrived at a wrong finding by not considering the relevant records it cannot be said that the said finding would be patently violative of rules of natural justice. 17. Even otherwise, a perusal of the inquiry report dated 23.06.2023, which is part of Annexure-18 to the writ petition, would indicate that the competent authority has considered the medical certificate of the petitioner to specifically arrive at a finding that the said medical certificate does not inspire confidence as there is a difference in date in the medical certificate pertaining to the start of medical leave. 18. 18. Thus, merely because the inquiry officer/disciplinary authority may have arrived at a finding which was at the variance with what has been indicated in the medical certificate and thereafter has gone to hold that the petitioner was willfully absent, the same cannot be said to be violative of rules of natural justice. 19. So far as the further argument of learned counsel for the petitioner that the order is also in gross violation of rules of natural justice as the witnesses who were indicated in the charge sheet were never called to appear before the inquiry officer, the Court may only observe that mere calling or not calling the witnesses cannot be construed that the order impugned is in violation of rules of natural justice rather the same may amount to procedural irregularity which can always be looked into by the appellate authority. 20. Another ground which has been taken by the petitioner in support of his argument of the order being violation of rules of natural justice is that the reply as filed by the petitioner dated 11.12.2023 has not been considered. The said argument is also found patently fallacious inasmuch as a perusal of the order impugned dated 12.01.2024 would indicate that the reply of the petitioner has in fact been considered. Obviously, it cannot be the case of the petitioner that his reply should have been considered in a particular manner and the petitioner should have been exonerated of all the charges inasmuch as it is always the discretion of the disciplinary authority to take a view which could be erroneous but the same would not result into the said order being rendered in gross violation of the rules of natural justice. 21. So far as the judgment in the case of Smt. Manju Devi (supra) is concerned, the writ Court had proceeded on the ground that the order impugned had been passed without an effective opportunity of hearing to the petitioner. 22. In the instant case, it is not that the petitioner has not been heard rather his case is that the reply that had been filed by him has not been considered in its proper perspective. Thus, the judgment of this Court in the case of Smt. Manju Devi (supra) would be of no help to the petitioner. 23. 22. In the instant case, it is not that the petitioner has not been heard rather his case is that the reply that had been filed by him has not been considered in its proper perspective. Thus, the judgment of this Court in the case of Smt. Manju Devi (supra) would be of no help to the petitioner. 23. Keeping in view the aforesaid discussion, this Court finds that the principles of law as laid down by the Apex Court in the case of Godrej Sara Lee Limited (supra) of entertaining a writ petition are not made out. Accordingly, the writ petition is dismissed leaving it open to the petitioner to pursue the remedy of appeal as per rules.