Ragho Singh vs Union of India (UOI) and Others

Udai Pratap Singh, J.—By this writ application, the petitioner has challenged the order of dismissal contained in Annexure 3 and the enquiry report contained in Annexure-4.

The petitioner was Civil Overseer in B.C.C.L. in Junkunder Open Cast Project (J.O.C.P.) in the year 1975. He was promoted to the post of Senior Overseer in the year 1979. In September 1981, he was served with a charge-sheet containing two allegations (a) that on 10-9-1981 at about 10.20 p.m. the petitioner alongwith Barma Singh and Angad Singh had gone to one Nunu Gope the driver of a Diesel Jeep, snatched away the key and after travelling a distance of 45 Kms. returned the Jeep at about 3 a.m. and (b) that on 11-9-1981 at about 3 p.m. he abused, threatened and assaulted Sri R. P. Majumdar, a Senior Welfare Officer of JOCP with the help of Angad Singh Barma Singh and Suresh Nonia all Union workers. He was suspended with immediate effect pending the domestic enquiry. He filed his show cause before the enquiry officer, respondent No. 5, denying the allegations. He participated in the enquiry. The witnesses were examined and cross examined and the enquiry report dated 7-12-1981 (Annexure-4) was submitted before the Management. The impugned order contained in Annexure 3, dated 23-11-1982 was passed by the disciplinary authority. On the basts of the report of the enquiry officer, the disciplinary authority concurred with the findings of the enquiry officer and found the charges levelled against the petitioner proved beyond doubt. The charges being serious in nature, the nature of punishment warranted the order of dismissal.

Mr. K. D. Chatterjee. learned Counsel appearing for the management has raised a preliminary objection regarding the maintainability of the writ petition. A counter affidavit has been filed on behalf of respondent Nos. 4 and 5 and the Deputy Personnel Manager of the B.C.C.L. has sworn the said counter affidavit It is contended that the question raised in the writ petition is fit for adjudication before the Industrial Tribunal. Since it raises an industrial dispute on the face of the allegation. The parties would be at liberty to lead evidence, before the industrial tribunal for the proper adjudication of the dispute. Further, there are basic disputed questions of fact which cannot be gone into by this Court in exercise of its jurisdiction under Article 226 of the Constitution. There is neither lack of inherent jurisdiction in the authority passing the impugned order, nor there is violation of principles of natural justice. The petitioner was given full opportunity before the domestic enquiry and the witnesses were examined and cross examined before the enquiry report was submitted to the management.

Mrs. Jha, learned Counsel appearing for the petitioner strongly relied on the fact that once the writ petition has been admitted it must be considered on merit. It was submitted that there are two enquiry reports of the same enquiry officer, one contained in Annexure 2 and the other in Annexure-4. By the report contained in Annexure 2 the petitioner has been exonerated but by the report contained in Annexure-4, the petitioner has been found guilty of the charges levelled against him.

It is true that there are two enquiry reports, annexed by the petitioner along with the writ petition but the existence of Annexure-2 has been disputed by the management and in their counter affidavit the existence of such an enquiry report has been categorically denied. In paragraph 15 of the counter affidavit it has been stated that an enquiry report as contained in Annexure 2 had been prepared but the same never submitted before the management and the only enquiry report submitted before the management was Annexure-4. It was this enquiry report contained in Annexure-4, upon which the management proceeded to take action. It has been alleged in the counter affidavit that the so-called report contained in Annexure 2 was found missing and the same had never been communicated to the petitioner. The existence, the possession or the custody of the so-called enquiry report contained in Annexure-2 has been seriously disputed and the theft of that document has been alleged in the counter affidavit. The petitioners counsel could not disclose how the petitioner came in possession of the so-called report con tained in Annexure-2. It has not been stated on affidavit how Annexure 2 was procured and from whom it was obtained.

The basic disputed question of fact whether the so-called report contained in Annexure 2 was a genuine document or whether the enquiry report contained in Annexure-4 submitted before the management on which the impugned action was taken is legal and valid document cannot be decided by me under Article 226 of the Constitution. Precisely for this reason it would be competent for the Industrial tribunal to decide such disputed questions of fact which goes to the root of the matter. If the High Court starts considering such disputed questions of fact in writ jurisdiction under Article 226 of the Constitution, in my opinion, it would be an abnormal exercise of jurisdiction.

The learned Counsel for the petitioner failed to point out lack of inherent jurisdiction in the authority passing the impugned order contained in Annexure-3. It could not be urged that the principles of natural justice was violated in conducting the domestic enquiry.

The proper remedy which is available to the petitioner to ventilate the grievances in respect of the enquiry is to take recourse to Section 10 of the Industrial Disputes Act.

Reference may now be made to a Full Bench decision of the Patna High Court in the case of Dinesh Prasad Mandal v. The Slate of Bihar 1985 (33) B.L.J.R. 2110 wherein ii has been held that-

The Industrial Disputes Act is a self contained Code unto itself, creating and conferring the Industrial rights thereunder and fashioning forums and the remedies for their enforcement as an integrated whole.

When a right stems from a statute, even in derogation of the general law, the remedy of its enforcement, if expressly provided must also be sought for within the same statute. The right and remedy are given uno flatu and one cannot be dissociated from the other.

That reference of industrial disputes for adjudication in exercise of the power of the Government u/s 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of the right or liability created under the Act. In the event of the Government declining to make the reference, the aggrieved party is entitled to approach the High Court by way of writ jurisdiction to show that the action of the Government is not legally sustainable or there has not been any adequate application of mind. In this context the plea that the statutory remedy of a reference is a misnomer is itself a misnomer

The Full Bench of this Court further held that:

That there is no manner of doubt that even the existence of an adequate and efficacious alternative remedy is not and indeed cannot be any inflexible legal bar to the entertainment of a writ petition. The constitutional power of the High Court under Article 226 is untra-melled by any unsurmountable limitation on its exercise.

However, the statutory rule is that the writ Court would entertain the matter only if the adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself and ultimately rendering it inefficacious because it is and was never intended to replace or substitute the ordinary legal remedies expressly provided by the legislature. Therefore on principle itself resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available.

Dealing with the question whether the writ court must intervene in the First instance for any infraction of the right, under the Industrial Disputes Act, the Full Bench held ;

The acceptance of the plea that the writ court itself must intervene the first instance for any infraction of the rights under the Act in essence would render nugatory the extensive machinery for settlement and adjudication of industrial disputes provided under the Act. The writ jurisdiction is not the remedy of the first instance, where others exist. It is the remedy of the last resort, if the legislature, in its wisdom provides a statutory remedy, it is not for the High Court to override and nullify that mandate....

The suitors must exhaust the remedies under the Act before seeking relief in the writ jurisdiction unless the monstrosity of the situation or other exceptional circumstances call for interference by the writ court at the very threshold.

In this view, I am of the opinion that the proper remedy for the petitioner to ventilate his grievance in respect of the existence of the enquiry report, is to take recourse to Section 10 of the ID. Act.

In the result, the writ petition is dismissed, but there will be no order as to costs.