Shiv Prasad Awasthi vs District Administrative Committee, U.P. and Another

N.K. Mehrotra, J.—Heard Shri K.S. Bajpai learned Counsel for the Petitioner and Shri A.R. Khan Advocate for the opposite parties.

This is a writ petition for issuing a writ of certiorari for quashing the impugned dismissal order dated 27.2.2003 as contained in Annexure-1 and further for a writ of mandamus commanding the opposite parties to give all the consequential benefits to the Petitioner and reinstate the Petitioner in service and pay him salary with full back wages.

Shiv Prasad Awasthi is a Member of U.P. Primary Agricultural Co-operative Credit Societies Centralised Services and his services are governed by the Rules known as U.P. Primary Agricultural Co-operative Credit Societies Centralised Services Rules, 1976 (hereinafter referred to as the ''Rules'') and the Regulations known as U.P. Primary Agricultural Credit Societies Centralised Services Regulations, 1978 (hereinafter referred to as the ''Regulations'').

The Petitioner has been dismissed from service by conducting the disciplinary inquiry under Regulation 59 of the aforesaid Regulations. The Petitioner did not prefer an appeal as provided under Regulation 60 of the aforesaid Regulations and instead he has filed this writ petition to quash the impugned dismissal order.

At the time of hearing on admission, the learned Counsel for the opposite party has raised preliminary objections for entertaining the writ petition without availing the alternative remedy by way of appeal. The case of the Petitioner is that since no inquiry at all has been conducted before issuing the notice for dismissal and there is a violation of principles of natural justice, therefore, the writ petition can be entertained. In support of this contention, the learned Counsel for the Petitioner has referred decision in Gujarat University v. N.U. Rajguru and Ors. AIR 1998 SC 66, in which it has been held that ''it is not permissible to invoke the jurisdiction of High Court under Article 226 of the Constitution of India by-passing the machinery designated by the Act for determination of the election dispute. Ordinarily, the remedy provided by the statute must be followed before the authority designated therein. But there may be cases where exceptional or extraordinary circumstances may exist to justify the by-passing of the alternative remedies.

Learned Counsel for the Petitioner has further referred a decision in Nanhoo Mal and Others Vs. Hira Mal and Others, . The ratio of this judgment is that the election of the president of the Municipal Board can be challenged only by an election petition presented according to the provision of the Act and the writ jurisdiction of the High Court is excluded.

The Petitioner has further referred another decision of Hon''ble Supreme Court in L. Hirday Narain Vs. Income Tax Officer, Bareilly, . Besides the other principles laid down in this decision the relevant ratio for the purpose of this case is that if the High Court entertains the writ petition after giving hearing on merit, the petition cannot thereafter be rejected on the ground that statutory remedy was not availed of.

The Petitioner has also referred a decision of the Hon''ble Supreme Court in Whirlpool Corporation v. Registrar of Trade, Marks, Mumbai 1999 (2) AWC 2.54 (SC) (NOC) : (1998) 8 SCC 1. It was held in this case that under Article 226 of the Constitution of India, 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 to impose 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 atleast three contingencies ; namely where the writ petition has been filed for the enforcement of any fundamental rights or where there has been a violation of principle of natural justice or where the order or proceedings are held without jurisdiction or the vires of the Act is challenged.

Similarly in Assam Apex Handicraft and Marketing Co-operative Society Ltd. and Another Vs. State of Assam and Others, , as referred by the Petitioner, the same view has been taken by the Hon''ble Supreme Court that it is a well recognised principle that where an order is passed in flagrant violation of the principles of natural justice, alternative remedy would be no bar.

So far as the law referred by the learned Counsel for the Petitioner is concerned, there can be no dispute that alternative remedy is not the absolute bar in entertaining the writ petition under Article 226 of the Constitution of India and when there is a violation of the principles of natural justice or a fundamental right of the Petitioner, it can be entertained but in the instant case, I find that the Petitioner states that that no inquiry was conducted at all while the opposite parties contend that the inquiry was conducted, full opportunity was given and the procedure prescribed under Regulation 59 of the aforesaid Regulations has been strictly followed. So these are the disputed questions of facts which cannot be decided here as a Court of appeal. All these disputed questions of fact can be looked into in a efficacious remedy before the appellate authority under Regulations 60 of the aforesaid Regulations. It is not denied that the High Court under writ jurisdiction, will not act as a Court of appeal and the disputed facts can be ascertained by the appellate authority only in an appeal.

Therefore, the proper and efficacious remedy to the Petitioner is to prefer an appeal and the discretionary relief under Article 226 of the Constitution of India should not be granted unless the facts are ascertained by the appellate authority at the time of hearing of the appeal.

There is an apprehension to the Petitioner that the appeal will not be heard and disposed of expeditiously, but for that purpose, direction can be issued to the appellate authority to expedite the disposal of the appeal within a period of eight weeks from the date of the presentation of the appeal. Appellate authority is also to be directed that the appeal shall be disposed of by recording a finding on every contention raised by the Petitioner in appeal and it shall not be dismissed on the ground of limitation if it is preferred within a period of two weeks from this date.

In view of the above, the writ petition is dismissed at the admission stage on the ground of availability of efficacious remedy by way of appeal under Regulation 60 of the aforesaid Regulations with the direction to the appellate authority, regional administrative committed to hear and dispose of the appeal against the impugned order if it is preferred within a period of two weeks from this date, by a speaking order, meeting every contention raised in the memo of appeal, expeditiously within a period of eight weeks from the date an appeal is presented.