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Judgment
In this writ petition, the petitioner, an employee of the respondent State Transport Corporation Unit-I, Kumbakonam prays for the issue of writ
of mandamus directing the respondent to reinstate the petitioner in service with all attendant benefits including the continuity of service.
This court initially ordered Notice of motion on 2.2.1999 and subsequently ordered issue of Rule Nisi on 1.7.99. The sole respondent entered
appearance and also filed counter. The writ petitioner has also filed a reply affidavit. With the consent of counsel for either side, the writ petitioner
itself is taken up for final disposal, when the application filed by the writ petitioner for directions came up for consideration.
Heard Mr. R. Krishnamoorthy, learned Senior Counsel appearing for Mr.V. Ayyadurai for the petitioner and Mr. A.L. Somayaji, learned
Senior Counsel appearing for Mr. T. Arulraj.
In this case, the court has to consider the factual matrix in detail as well as certain earlier proceedings and therefore this Court has to set out the
facts in detail.
I. PETITIONER''S CASE:
The petitioner, a Junior Superintendent in the Accounts Section in the respondent Corporation was attending the work relating to repayment of
loan to the Tamil Nadu Transport Development Finance Corporation and Provident Fund. However, he was directed to look after additional work
of cash collection, whenever there was shortage of employees in that section. The petitioner was put in-charge of cash collection for about five
working days during April/May, 1983 and there was no shortage nor [here was any omission on his part in the said work.
Subsequcnlly, it was found by the respondent management that one Rajagopalan, who is regularly in-charge of cash collection has defalcated
cash accounts and misappropriated substantial funds. As the petitioner was in charge of cash collection for few days a charge memo was issued.
The charge framed against the petitioner being that the petitioner had failed to find out and report the alleged fraud, misappropriation and
malpractice committed by the said Rajagopalan. The peiitioner was placed under suspension on 23.11.1983 and charge memo was issued on
30.11.1983 for having neglected and failed to report about the defalcation of the said Rajagopalan. With respect to the said charge an enquiry was
conducted and a penalty of dismissal from service was imposed in terms of the standing orders. However, as an Industrial dispute was pending
during the relevant period, before the Industrial Tribunal, the respondent filed I.D.No.622 of 82 and sought for approval from the said Tribunal u/s
33(2)(b) of the Industrial Disputes Act for the imposition of punishment of dismissal from service.
After detailed enquiry, the said Industrial Tribunal by its order dated 13.7.1984 refused to grant approval holding that no malpractice or
misconduct been established against the petitioner and that there is no legal evidence to sustain the solitary charge and to conclude that the
petitioner is guilty of the imputations. Instead of reinstating the petitioner, the respondent challenged the order passed by the Industrial Tribunal by
filing W.P.No.8849 of (984. Simultaneously the writ petitioner herein had also filed W.P.No.33l8 of 1984 challenging the order of dismissal and
for consequential relief of reinstatement. After contest, the writ petition filed by the employer was dismissed on 18.12.1987 and the order of the
Industrial Tribunal was confirmed by this Court.
This Court dismissed both che writ petitions. But in W.P.No.3318 of 1984 filed by the petitioner herein seeking to quash the order of dismissal
dated 5.3.1984 and to direct the respondent to reinstate the peiitioner, this Court held that there is no need to quash the impugned order once over
as the writ petition filed by the respondent management stands dismissed and that of the Induslrial Tribunal stands confirmed. In that view this court
held that it is not necessary 10 issue a separate order in the writ petition filed by the writ petitioner herein as the writ petition filed by the respondent
stands dismissed and the order of the tribunal stands affirmed and as there is nothing further remains to be quashed.
The respondent - management preferred W.A.No.322 of 1988 before the Division Bench and the same was also dismissed confirming the
common order passed in the writ petitions. Pending the writ appeal, there was a direction to the respondent management to deposit a sum of
Rs.40,000 and the petitioner was permitted to withdraw the same. The Division Bench ultimately dismissed the writ appeals by order dated
10.3.1998. As against the judgment of the Division Bench in W.A.No.322 of 1988, the respondent also moved a SLP before the Apex Court and
admittedly the same also stands rejected in limitie. The respondent had not chosen to furnish the details of the order passed by the Supreme Court.
Thereafter, the petitioner had been repeatedly demanding reinstatement and he had also been demanding for settlement of backwages. The
petitioner had made repeated demands for reinstatement with backwages. The respondent had been keeping silent. The refusal on the part of the
respondent to reinstate the petitioner despite the orders of the Labour Court and this Court is highly arbitrarily, illegal and abuse of law. In the
absence of prior approval u/s 33(2)(b) of the Industrial Disputes Act, which is a mandatory provision, the order of dismissal, if any passed by the
respondent stands quashed and the petitioner is deemed to be in continuous employment through out and therefore, he is also entitled for payment
of backwages and arrears since the date of termination. The respondent instead of acting as a model employer has indulged in harassing the
petitioner by putting him out of employment and arbitrarily denying his livelihood. Hence, the present writ petition.
Pending the writ petition, the petitioner had sought for a direction directing the respondent to pay backwages amounting to rupees Eight Lakhs
as on 31.12.1998 and continue to pay salary at the rate of Rs.9,000 per month.
II RESPONDENT''S CASE:
In the counter affidavit filed by the respondent, there is no controversy with respect to the factual matrix narrated or particulars detailed above.
In the counter it has been further stated that a criminal prosecution is pending and the petitioner is facing grave criminal charges u/s 408, 420 477A
read with Section 34 and 120B of I.P.C. in C.C. No,28 of 1987, 325 of 1987 and 50 of 1988 on the file of the Chief Judicial Magistrate, even as
of today.
According to the respondent, the prosecution of the criminal case is nearing completion. It is incorrect to contend that the petitioner has nothing
to do with the misappropriation by Rajagopalan and the petitioner''s plea of innocence cannot be accepted. It is further pointed out that the
petitioner is not a worker under standing orders and therefore, the procedure adopted by the respondent management in moving for approval
before the Industrial Tribunal in view of the pending industrial dispute l.D.No.62 of 1982 is uncalled for and inconsequential and the Tribunal
should have dismissed the approval petition as not maintainable instead of rejecting it on merits as if it is maintainable.
It is also pointed out and contended by the respondent that the order passed by the learned Single Judge, Division Bench of this Court as well
as the Supreme Court upholding the order of Industrial Tribunal are erroneous without jurisdiction and inconsequential. The order of dismissal,
according to the respondent is valid and binding and there is no requirement at all to move the Industrial Tribunal for approval u/s 33(2)(b) of the
Act. Hence all the further proceedings are inconsequential and of no consequence. The petitioner is not entitled to reinstatement or for any
direction in view of the pending criminal prosecution and he will be deemed to be under suspension.
The respondent further pleaded that in accordance with the rules, the suspension order can be passed when criminal charges are pending
against an employee of respondent Corporation and the criminal prosecution which is under progress are grave and involve moral turpitude. The
respondent prayed for dismissal of the writ petition.
III. DETAILS OF REPLY AFFIDAVIT:
The writ pelitioner had filed a reply affidavit denying certain on the averments, set out in the counter-affidavit and in particular the alleged
abatement or association with Rajagopalan. The petitioner succinctly reiterated the contentions set out in the affidavit filed in support of the writ
petition and further submitted that the petitioner had neither been placed under suspension nor had been paid any subsistence allowance and he is
being harassed to unimaginable and untold hardship.
The respondent is estopped from contending that the approval proceeding is a nullity or invalid or inconsequential or there was no requirement
at all. It does not lie in the mouth of the respondent to contend that the approval applied for is misconception at this point of time and such
contention is a clear mockery of the whole system. According to the petitioner he is deemed to have been restored and continue in service
continuously and there is no justification to deny him the employment and the refusal to take him back to duty is illegal, arbitrary and uncalled for.
Further till this date no order of suspension had been passed after rejection of the approval petition on the ground that a criminal prosecution is
pending against the pelitioner. As a further consequence, it is claimed that the petitioner is deemed to be in service and he is entitled to all the
benefits and such a direction has to be issued to the respondent to take the petitioner back to service with all arrears of salary, increment and
attendant benefits. It is also contended by the writ petitioner that there is no justification for the respondent to deny employment and livelihood to
the petitioner and that too without suspending him from service despite the judicial order passed by this Court. The earlier pronouncement and
judicial pronouncement binding the parties are being flouted by the respondent.
Heard Mr. R. Krishnamoorthy, learned senior counsel for Mr. V. Ayyadurai, counsel for the petitioner and Mr.A.L.Somayaji, learned senior
counsel appearing for Mr. T. Arul Raj counsel for the respondents.
IV POINTS:
The following points arise for consideration,
(A) Whether the petitioner is still an employee deemed to be in service with all rights and privileges attached to the post?
(B) What is the scope and effect of earlier inter party proceedings?
(C) Whether the writ petitioner is deemed to have been be placed under suspension pending criminal prosecution?
(D) Whether the petitioner is entitled to the reliefs prayed for?
(E) To what relief, if any?
As already pointed out there is no controversy with respect to the factual matrix and earlier proceedings between the parties and their finality.
All the above points could be considered together. Mr.R. Krishnamuithy, learned senior counsel reiterated the averments and advanced the
contentions in support of the petition and submitted that the petitioner is entitled to the reliefs prayed for. It was further contended that all the five
points are to be answered in favour of the petitioner. Mr.A.L. Somayaji learned senior counsel fairly stated that it is not open to the respondent at
this point of time to contend that the order rejecting approval by Labour Court is either uncalled for or inconsequential or non-est of unwarranted,
so also the further proceedings before this court and the Supreme Court. However, it was vehemently contended that the present writ petition
seeking the relief of Mandamus directing the respondent Corporation to reinstate the petitioner with all service benefits is not maintainable and the
relief of mandamus prayed for is misconceived.
As Mr.A.L. Somayaji, learned senior counsel appearing tor the respondent fairly stated that the earlier proceedings cannot be gone into or
reopened nor it could be the subject matter of discussion. Hence, the first point has to be answered in favour of the writ petitioner and the earlier
proceedings before the Labour Court and writ proceedings before this Court are binding on the parties and it is well open to the petitioner to work
out his remedies on that basis in this writ petition.
The learned senior counsel further contended that even accepting that the order of rejection of approval application u/s 33(2)(b) is Final and
binding, it cannot be assumed nor it follows automatically that the petitioner is deemed to be in service or entitled to be taken back to duty or
service and the petitioner has to work out his remedies under the provisions of the Industrial Disputes Act by instituting appropriate proceedings or
raising a dispute.
According to Mr. A.L. Somayaji, the learned senior counsel for respondent, the remedy of writ under Article 226 is misconceived and not
maintainable nor it is a substitute for regular proceedings and this Court will decline to exercise the discretionary remedy of mandamus in favour of
the petitioner, on the facts of the case and when he is still facing prosecution before the Criminal Court.
It is also further contended by Mr. A.L. Somayaji. learned senior counsel for the respondent that the earlier writ petition filed by the writ
petitioner having been dismissed by this Court the present writ petition is barred by the principle of res judicata. Mr. A.L. Somayaji, the learned
senior counsel further contended that the order u/s 33(2)(b) declining approval is only on a prima-facie consideration either to grant or decline
approval and it would be mean that the order of termination had been set aside or the petitioner has been restored or the petitioner is deemed to
have been reinstated back to service with all benefits.
Mr. A.L. Somayaji, learned senior counsel for the respondent also referred to the pending criminal case and as such the petitioner is not
entitled to be reinstated at this point of time and this Court has to direct the writ petitioner to work out his remedies before the Labour Court or
such other forum as may be available to the petitioner under the Industrial Disputes Act or any other provision of law. This contention of the
learned counsel for the respondent cannot be sustained and it is born out of misconception or frustration.
As already pointed out there is no factual controversy. The charge framed against the petitioner being his alleged failure to report about the
embezzlement or malpractice or the misappropriation by Rajagopalan, co-employee. The order of termination passed by the respondent has not
been approved by the Industrial Dispute Tribunal and the approval applied for by the respondent management u/s 33(2)(b) stands dismissed. The
writ petition filed by the respondent- management also stands dismissed and it had been confirmed by the Division Bench of this Court as well by
the Apex Court. Yet the respondent had neither reinstated the petitioner nor passed any orders or orders taking the petitioner back to duty or
extinguishing the rights of the petitioner to the post in any manner known to law and thereafter suspending him nor even an order to the effect that
the petitioner is deemed to be under suspension been communicated in view of pending criminal prosecution nor any order whatsoever had even
been passed by the respondent until today.
Further even after filing this writ petition and service of notice, no such order has been passed by the respondent and the respondent till this
date had declined to restore the petitioner or reinstate the petitioner nor it had chosen to pass orders of suspension nor it had paid subsistence
allowance or any other emoluments since 5.3.1984 onwards excepting payment of Rs.40,000 as per the interim orders of the Division Bench of
this Court.
It is useful to refer to the material portion of the orders passed by the learned single judge as well a the Division Bench of this Court as there is
some controversy with respect to the late of earlier writ petition filed by the petitioner herein.
Sathiadev, J. while disposing of the above writ petitions by a common order held that in respect of the imputations and the charge made against
the writ petitioner herein no reasonable man could ever come to the conclusion that the petitioner is guilty of imputations or the charge framed
against him. The learned judge held thus:
Hence, under such circumstances, no reasonable man could ever come to the conclusion thnt this employee could be held guilty of the charges
framed against him. That was the reason why Tribunal had held that no legal evidence exists to hold him guilty of the charges and refused to grant
approval. This being a permissible approach which could be made by a Tribunal it had not committed any illegality, and therefore, W.P.No.8849
of 1984 is dismissed. No. Costs"".
Sathiadev, J. while holding that no reasonable person could hold that the petitioner is guilty of imputations and charge framed against him held
that there is no need to pass separate order in W.P.No.3318 of 19S4. This Court had upheld the order of the Tribunal and therefore, the
impugned order of termination gets effaced. In this respect the learned Judge held thus:
As tor W.P.No.3318 of 1984 is concerned, in the light of the decision rendered in W.P.No.8849 of 1984, there is no need to quash the
impugned order herein, because by upholding the order of the Tribunal, this impugned order gets effaced and as no court would pass a futile order,
this writ petition is dismissed. No Costs"".
The above portion of the earlier order makes it abundantly clear that this court not only affirmed the proceedings of the Labour Court, but also
held that the very order of dismissal passed by the first respondent gets effaced and therefore there is no necessity to issue a writ. The learned
judge had used the expression ""effaced"" which means wiped out. The order of dismissal stands quashed and there is nothing further for the writ
petitioner herein to work out or seek for any further remedy. In my considered view, the resultant position being that the petitioner is deemed to
have been restored to the position that existed prior to 5.3.1984 and since then onwards the writ petitioner herein is deemed to be in continuous
service for all purposes as admittedly no order whatsoever had been passed by the respondent either suspending the writ petitioner herein or an
order which would result in the petitioner being divested of his right to continue in the post in a manner known to law by the respondent.
Sathyadev, J. while dismissing the writ petition filed by the respondent and confirming the orders of the Industrial Tribunal, Madras and after
going into the merits of the imputations or charge as well as the order of dismissal dated 5.3.1984 held that it is not required to allow the earlier
writ petition filed by the petitioner herein as they very order of dismissal dated 5.3.1984 stands effaced and nothing survives for making the Rules
Nisi absolute.
As against the orders of Sathyadev. J. in W.RNo.3318, 8849 and 8922 of 1984, the respondent Corporation preferred W.A.Nos.321 and
322 of 1988 etc.,
The Division Bench of this Court while dismissing the Writ Appeals held thus:
In our view, the learned single judge has kept into account these principles also in analysing and appreciating the challenge made against the order
of the Tribunal below, when the learned Judge categorically held that thee evidence sought to he relied upon is neither a legally acceptable material
nor would they even if accepted, lead to the conclusion arrived at the management. As noticed earlier, the learned single judge also was of the view
that the basis of the charge itself was not on a firm ground; but on nebulous materials and assumptions and that any rate in respect of one of the
workers, it as even a vague charge. Such indictions made by the learned single judge on considering the overall materials placed on record and
also the orders of the Tribunal, which has been the subject matter of challenge before the learned single judge, cannot be a vitiating factor involving
any excessive exercise undertaken to go into the merits of the charges themselves. In our view, what the Tribunal appears to have really and
substantially done and the learned single judge ultimately did was to find out only the existence or otherwise of a prima facie case, including going
into the manner of the framing of the charge as well as the basis of the charge and consequently, we are unable to agree with the learned counsel
for the appellant that there has been any violation of any of the principles laid down in the rulings referred to and relied upon by the
petitioners/appellant. Consequently, we see no merit in these writ appeals and the writ appeals fail and shall stand dismissed.
In other words, the Division Bench confirmed the orders passed by Sathyadev, J. in all the writ petitions. Resultantly, the order passed by
Sathyadev, J. on all fours is in favour of the writ petitioner herein, and there was no occasion for the writ petitioner herein to take up the matter on
appeal. As against the Division Bench Judgment of this Court, the SLP by preferred by the respondent herein has been rejected in limine. Hence,
the above proceedings reached finality and it is binding on the parties to the present writ petition.
Mr. A.L. Somayaji. learned senior counsel also contended that the earlier writ petition filed by the petitioner herein stands dismissed and
therefore, the present writ petition is barred by principles of resjudicata as well. As already pointed out in the earlier round of litigation this Court
had sustained the contention putforward by the petitioner herein and also held that the impugned proceedings therein against the writ petitioner
herein stands effaced and therefore, there is nothing further remains to be quashed. The effect of such declaration is that the writ petitioner is never
deemed to have been dismissed from service and therefore, it is unsustainable to contend that the present writ petition is barred by the earlier
order, muchless by [he principles of res judicata.
It is unsustainable to contend that the earlier writ petition filed by the petitioner herein was dismissed or rejected. But on the other hand, the
decision of the learned single judge as affirmed by the Division Bench will not constitute rejection of the petitioner''s claim and in fact whatever the
petitioner claimed had been upheld as the impugned order of dismissal stands effaced.
On a consideration, this Court holds that the earlier order passed by this Court holds good and hinds the parties herein and the writ petitioner
who is deemed to be in service is entitled to the reliefs prayed for by him.
It was nextly contended that the petitioner cannot seek the relief of mandamus by approaching this Court and seek for restoration or restitution
of his earlier position prior to the order of dismissal dated 5.3.1984 and also seek for consequential directions for payment of service benefits such
as arrears of salary, revision of pay, promotion etc., as criminal prosecutions arc pending against the petitioner. Further it was pointed out that the
petitioner has to work out his remedies by invoking the provisions of the Industrial Disputes Act.
It was lastly contended that the petitioner is deemed to have been placed under suspension in view of the pending criminal prosecutions against
him, which prosecution is nearing completion. The above contentions could now be taken up for consideration together.
Concedingly, after the order passed by the Industrial Tribunal refusing to approve the dismissal of the writ petitioner as well as after the order
passed by Sathyadev, J. in the earlier round of writ petitions as affirmed by the Division Bench of this Court, no further step had been taken by the
respondent all these years nor an order had been passed either suspending the petitioner or keeping the petitioner away from officer or atleast
intimating the petitioner that he is deemed to have been suspended in view of the pending criminal prosecutions.
It is to be pointed out that the respondent had chosen to frame charges for alleged mis-conduct and had also imposed the maximum penalty of
dismissal from service, which had since been effaced by judicial pronouncements in the earlier round of litigation. No service rule or standing order
had been pointed cut by Mr.A.L. Somayaji, learned senior counsel that consequent to the orders of the Industrial Tribunal or this Court holding
that the penalty of dismissal stands effaced, the petitioner is not restored to position anterior to dismissal. No such provision exist and therefore, the
counsel for the respondent is unable to sustain his plea that the petitioner is deemed to have been placed under suspension.
Interestingly, the petitioner had been prosecuted simultaneously and the prosecution is still going on. Having dismissing the petitioner which had
since been effaced by the earlier orders passed by this Court, it is also not open to the respondent to place the petitioner under suspension or
proceed against him and it is not as if this Court had given liberty to the respondent to proceed afresh or denovo from a particular stage. As such
the order of penalty imposed against the writ petitioner herein stands effaecd and therefore, the petitioner cannot be once again proceeded in
respect of the same imputations or charges.
Even accepting that the petitioner is facing criminal prosecution and it is for specific criminal offences. Assuming that the writ petitioner could be
placed under suspension on that score there cannot be deemed suspension unless the respondent had passed a specific order placing the petitioner
under suspension, after the rejection of the SLP by their Lordships of the Apex Court. Hence, it is clear that the respondent had not passed any
order nor issued any directions to keep the petitioner away from office nor it could be held that the petitioner is placed under suspension and his
right to the office had been suspended nor he has no right to attend the office. Such a contention raised by the learned counsel for the respondent
cannot be countenanced.
Right from the date of the order passed by Sathyadev, J. the petitioner had been writing and demanding the respondents to forthwith take him
back to continue. But the respondents always kept the petitioner out of office and had not chosen to either take him back to duty nor had chosen
to place him under suspension, which course, if at all would have been the accepted choice. Unfortunately, the respondent had not done either of
them. The Criminal prosecution is under progress and continue to be pending even as on today. Merely because there is criminal prosecution, it
cannot be said that the petitioner is deemed to be under suspension or he has to be kept out of office automatically when no orders of suspension
or alike had been passed by the respondent in this behalf.
One of the contentions that was vehemently argued and pressed by Mr.A.L. Somayaji, learned senior counel being that the writ petitioner
should be directed to raise an industrial dispute and work out his remedies and the petitioner cannot invoke the writ jurisdiction of this Court under
Article 226. Such a contention cannot be countenanced as the petitioner who has got the right to continue in office or post had been illegally and
arbitrarily deprived of his right to hold the post and continue in office and discharge the functions by refusal on the part of the respondents to
restore him to duty and the respondent also declined to accept the services offered by the petitioner herein. It is true that the writ petitioner could
raise an industrial dispute but it is not a must nor it is an essential requirement or a must on the facts of the case and in the light of earlier
proceedings.
The writ petitioner is an employee of Government undertaking and it is amenable to writ jurisdiction of this court. This court could very well
issue appropriate writ and it is not only unjust but also hypertechnical to direct the petitioner to raise an industrial dispute at this point of time and
moreover when the respondent is amenable to wnt jurisdiction and the acts of the respondent is highly arbitrary, ex facie illegal and in excess of
jurisdiction.
On [he facts of the case, the writ of mandamus prayed for is the appropriate writ. For the issuance of writ of mandamus, two pre-conditions
namely a clear legal right to the performance of a particular act or duty at the hands of the respondents and it must appear that the law affords no
other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought to be enforced. If
positive obligation exists mandamus cannot be denied on the ground that the same could be enforced by raising an industrial dispute, which is a
long drawn process.
The judicial control over the fast expanding maze of bodies affecting rights of the people should not be put into water-tight compartment. It
should remain flexible to meet the requirements of variable circumstances.
The mandamus is not only discretionary but it is a very wide remedy which should be made easily available to reach injustice wherever it is
found and technicalities should not come in the way of granting relief. The very object of mandamus is to prevent disorder from a failure of justice
and it should be granted in all cases where law has established no specific remedy and where injustice warrants the writ of mandamus is regarded
as one of the highest and speediest remedies, which is provided for under Article 226.
It is true that a mandamus is not a writ of right but its issuance unquestionably lies on the sound judicial discretion of the court. The mandamus
is classed as a legal remedy, its issuance is largely controlled by equitable principles. Nothing has been pointed out by the respondent to deny the
discretionary remedy of mandamus on the facts of the present case nor the petitioner is guiity of suppression or misstatement of material facts nor
there is a particular remedy under the Industrial Disputes Act. Further, despite the earlier orders passed under Article 226, the respondent had not
chosen to implement the same and being a public authority, the respondent should have acted reasonably and fairly and restored the petitioner to
duty or taken back him to duty. Thus the respondent had deliberately failed and hence the relief of writ of mandamus prayed for in the present writ
petition is the proper and just remedy.
This Court while exercising the writ jurisdiction could very well infer that there is gross miscarriage of justice or flagrant violation of law and
render justice. The writ of mandamus is an extraordinary relief and it is intended to be issued for a definite act fruitful purpose being rendering
substantial justice. It is not as if the relief prayed for in the present case is for trifling reasons.
The administrative decision on the part of the respondent not to restore back the petitioner is not only an illegality but also an irrationality and
processual impropriety as the respondent endeavours to defeat the earlier orders passed by this court and renders the earlier adjudication a futile
one, which is not permissible. This Court will not be justified in allowing the petitioner to be defeated or allow the respondent to by pass or
circumvent the earlier orders and indirectly render it futile or nugatory.
As a rule of practice and it has been the consistent view of this court that mandamus will not ordinarily be issued where there is another
adequate, specific and legal remedy competent to afford relief upon the same subject matter. To deny or refuse the mandamus there must exist a
specific remedy and adequate remedy too.
Their Lordships of the Supreme Court in Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S.
Jagannathan and Another, laid down that in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass
an order or give directions.
In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, it
has been held that when once there is no other equally convenient remedy, mandamus cannot be denied and the law relating to mandamus has
made the most spectacular advance. In this respect, the Apex Court held thus:
The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy of prerogative writs in England started
with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in
pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission to review the existing remedies for the judicial
control of administrative acts and commission with a view to evolving a simpler and more effective procedure."" The Law Commission made their
report in March 1976 (Law Com No.73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section
31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the
scope of this ""Judicial review"".
At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, also declaration and injunction. Even
damages. The procedure was much more simple and expeditious. Just a summons instead of writ. No formal pleadings. The evidence was given by
affidavit. As a rule no cross-examination, no discovery and soforth. But there were important safeguards. In particular, in order to qualify, the
applicant had to get the leave of a judge. The statute is phrased in flexible terms. It gives scope for development. It uses the words ""having regard
to"". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to have regard to it.
So the previous taw as to who are and who are not public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect
of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing"". (See
- The Closing Chapter - by R.No. Rt. Hon. Lord Denning P.122)"".
There, however, the prerogative writ of mandamus confirmed only to public authorities to compel performance of public duty. The public authority
or them means every body which is created by statute and whose powers and duties are defined by statute. So Government departments, local
authorities, police authorities and statutory undertakings and corporations as all public authorities. But there is no such limitation for our High
Courts to issue the writ in the nature of mandamus. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative
writs. This is a striking departure from the English law. Under Article 226. Writs can be issued to any person or authority. It cart be issued ""for the
enforcement of any of the fundamental rights and for any other purpose"".
When the order of termination had already been effaced by a judicial pronouncement of this Court, it follows that the order of penalty of
dismissal is deemed never to have been made and the petitioner is deemed to be in service for all purposes with all consequential and attendant
benefits and rights.
It would have been sufficient, if the writ petitioner had initiated contempt proceedings immediately after the termination of the earlier writ but
the petitioner had been approaching the respondent, which the respondent had taken advantage of. As the earlier orders had not been carried out
a fresh writ could very well be issued to the respondent. Hence the writ petition is also maintainable. It is a denial of his right not only to
employment but also denial of livelihood.
The learned counsel for the writ petitioner also persuaded this court not only to allow all consequential directions but also award substantial
damages and a compensation to the writ petitioner. It is further prayed by the writ petitioner that as has been held by the Apex Court in Victor Oil
Company Ltd. v. Amarnathdas and others, 1961 (II) LLJ 113, wherein it has been held that the failure to reinstate the workman concerned, the
workman is entitled to salary from the date of illegal orders of termination or dismissal and compensation for forced unemployment from the said
date of illegal dismissal or termination.
The learned counsel for the writ petitioner also referred to a decision of this court in The Director of School Education and Others v.
V.Gnanaraj and others, 1991 W.L.R. 94 where the Division Bench held that this Court while exercising the powers under Article 226 is not
scuttled down to the exact prayer projected in the writ petition and it could always take note of subsequent events for purpose of giving complete,
affective and appropriate reliefs to the parties and the facts exposed and the points involved and resolved can certainly guide the court to give the
appropriate reliefs to the parties and the jurisdiction of this court under Article 226 is involved only in furtherance of justice.
Though the learned counsel for the writ petitioner relied upon the decision of the Apex Court reported in Abhijit Tea Company Pvt. Ltd. Vs.
Terai Tea Co. (P) Ltd. and Others, , wherein the Apex Court came down heavily on a parly who had failed to implement the orders of the
Supreme Court.
In Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, the Apex Court held
thus:-
Under Article 226 of the Constitution, every High Court has the power to issue to any person or authority, including in appropriate case, any
Government, throughout the territories in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas
corpus, mandamus, quo warranto and certiorari or any of them, for the enforcement of the Fundamental Rights conferred by Part III of the
Constitution or for any other purpose. In Dwarka Nath Vs. Income Tax Officer, Special Circle D-ward, Kanpur and Another, this court pointed
out the Article 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power to issue
prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injuslice wherever it is found and to
mould the reliefs to meet the peculiar and complicated requirements of this country. In Hochtief Gammon Vs. State of Orissa and Others, this
Court held that the powers of the courts in England as regards the control which the judiciary has over the Executive indicate the minimum limit to
which the courts in this country would be prepared to go in considering the validity or orders passed by the Government or its officers.
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise
or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such
discretion mala fide or on irrelevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the
policy for implementing which such discretion has been conferred. In all such cases and in any other fit and a proper case a High Court can, in the
exercise of its jurisdiction under Article 226, issue of a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to
compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper
case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or
the public authority should have passed or given had it properly and lawfully exercised its discretion.
In the result, all the points (A) to (D) are answered in favour of the petitioner and against the respondent. This Court further holds that the
petitioner is deemed to have been in service continuously since 5.3.1984 onwards and deemed to be discharging his functions as an employee of
the respondent and he is entitled to all arrears of salary with annual increments and all attendant and concomitant benefits for the said period and till
date of reinstatement. There will be a direction directing the respondent to work out the money value of the same and pay the arrears within 12
weeks from today.
In the circumstances, there will be a further direction directing the respondent to forthwith reinstate the petitioner in service with all attendant
and consequential benefits. However, at the same time as criminal prosecution is pending against the writ petitioner, liberty is given to the
respondent to place the petitioner under suspension subject to payment of full salary at the present rate of scales payable.
Further liberty is given to the writ petitioner to institute appropriate proceedings before a Competent Court or forums or file a writ petition for
damages after termination of the pending criminal prosecution and work out his remedies.
The writ petition is allowed with costs of Rs.3500. Consequently, W.M.P.No.2118 of 1999 is closed.