Telangana High Court
Mohammad Sanaullah Khan, vs The State Of Telangana on 2 February, 2024
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THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.44393 of 2018
ORDER:
This writ petition is filed seeking the following relief :-
"...... to issue a Writ or order more particularly one in the nature of Writ of Mandamus declaring the proceedings in F.No.E1/17/2016, dated 13/06/2018 as being illegal, arbitrary, violative of Articles 14 and 21 of the Constitution of India and consequently set aside the proceedings in F.No.E1/17/2016 dated 13/06/2018 and direct the respondent No.2 to reinstate the petitioner into service and to permit him to discharge his duties as Senior Assistant.......".
2. Heard learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents.
3. Brief facts of the case are as follows :-
The petitioner joined the 2nd respondent organization on 21.07.1987 as a Court clerk, and since then he has been discharging his duties to the utmost satisfaction of his superiors without any complaint. Pursuant to the strike call notice given by the General Secretary of Telangana State Wakf Board Employees Welfare Association for non-payment of salaries for the month of April, 2015, he was constrained to participate in a One-day strike on 04.05.2015, which is the legitimate right of employees for the works extracted from them.2
4. Learned counsel appearing for the petitioner submits that there is no irregularity or illegality on the part of the petitioner in participating in the strike, along with other employees ventilating their grievance. The 2nd respondent placed the petitioner and three other employees under suspension vide proceedings dated 05.05.2015 for participating in the strike.
5. Learned counsel appearing for the petitioner further submits that all the suspended employees have approached this Court by way of filing W.P.Nos.15750, 15621 and 26970 of 2015. While so, vide interim order dated 05.06.2015, this Court suspended the proceedings impugned in W.P.Nos.15750 of 2015 and 15621 of 2015. Further, vide interim order dated 25.08.2015 in W.P.No.26970 of 2015, which is filed by the petitioner herein, this Court passed the interim order. Pursuant to the above said interim orders passed by this Court, immediately the petitioners in the other two writ petitions were reinstated into service. The petitioner was not immediately reinstated into service.
6. Learned counsel appearing for the petitioner further submits that the 2nd respondent has conducted a departmental enquiry, and a show-cause notice was issued by framing the following charges :-
"(a). That he has instead of maintaining Law and order in the premises of the O/o of the APSWB, Haj House, Nampally, he has 3 supported the pen down strike illegally and created a law and order problem and instigated other employees of the Board to participate in pen down strike. Thus he has violated Rule (4) of A.P. Civil Services (Conduct Rules) 1964. As such, he has violated Rule (4) of A.P. Civil Services (conduct) Rules 1964.
(b). That he has provoked other employees of the State Waqk Board to go on pen down strike and provocation caused disruption of power supply of the entire Haj House Building.
(c). That his unlawful behaviour and disturbance in the office is obviously detrimental to the interest of maintenance of discipline in Govt.
offices and it amounts to grave misconduct on his part, which amounts to violation of Rule-3 of A.P.
(d). That he has not only wrongfully restrained the above Officer Janab Mohd Jalaluddin Akbar, I.F.S, Director of Telangana State Minorities Welfare Department in taking over Charge but also used criminal force to the public officer in execution of his duty and raised slogans. As such, the delinquent's action amounts to dereliction of duty and violation of provision of Rule-3 Civil Services (Conduct) Rules, 1964.
(e). That the delinquent along with others have demonstrated in front of the Haj House of 5-5-15 and gave slogan against the above officer and such slogan were exceeded their permissive parameters. As such the delinquent has violated the Rule 5 of AP Civil Services (Conduct) Rules 1964."
7. Learned counsel appearing for the petitioner further submits that the petitioner has submitted his explanation, not being satisfied with the explanation, the 2nd respondent has appointed an Enquiry Officer. After conducting an elaborate enquiry, the Enquiry Officer has submitted the report holding that charge Nos.1 and 5 are proved and, accordingly, the 2nd respondent has issued a show-cause notice dated 06.03.2017 stating that as charge Nos.1 and 5 are held proved, 4 as to why imposition of punishment of reducing the post to that of lower grade in service shall not be imposed in terms of Reg.32(V) of A.P.Wakf Board Regulations.
8. Learned counsel appearing for the petitioner submits that pending the first enquiry in File No.49/ADB/2013 Z-11, dated 13.07.2016, the petitioner was once again placed under suspension on the ground that he was engaged in activities prejudicial to the interest of the security of the Wakf Board and that the 2nd respondent intended to initiate disciplinary proceedings for causing damage to the Waqf Institution in Thimmapur, Khanapur Mandal, with a malafide intention to take control over the administration of Masjid-E- Mohammadia by changing the location of Idgah from Sy.Nos.181 to 182 are contrary to Waqf records and the Survey Commission Report. The petitioner has submitted his explanation to the charge memo, and the Enquiry Officer has submitted his report stating that he was not responsible in any manner and recommended for survey by the Assistant Director, Survey and Land Records, Abilabad District. The 2nd respondent has issued the impugned proceedings dated 13.06.2018 contrary to the show-cause notice dated 06.03.2017. The second enquiry is concluded as the enquiry officer has submitted his enquiry report and recommended for survey by the Assistant Director, Survey and Land Records, Adilabad District. Hence, without 5 conducting any survey by the Assistant Director, Survey and Land Records, the petitioner cannot be removed from service. Therefore, appropriate orders be passed in the writ petition by setting aside the impugned proceedings and allow the Writ Petition.
9. On the other hand, learned Standing Counsel appearing for the respondents submits that the 2ndrespondent has filed a counter stating that the petitioner, along with other employees of the Telangana State Waqf Board, has created a nuisance and obstructed one Sri Md.Jalal Akber I.F.S. Officer at the time of taking over charge as competent authority of Telangana State Waqf Board, while discharging his legitimate duties. Pursuant to the interim order passed by this Court on 25.08.2015 in W.P.No.26970 of 2015, the petitioner was reinstated into service.
10. The counter further states as follows :-
"The deputed staff of Telangana State Waqf Board submitted the report on 11.08.2014 and after going through the report of deputed staff, it is observed that the report is not up to the mark for the purpose they have been deputed and it is the one-sided report submitted to favour one party petition Le. Sri Hafeez Khan of Khanapur and this survey done through Mandal Surveyor and he prepared the sketch wherein he has reported completely reversed and not tallied with Waqf Record Le. First survey commission report dated 02.06.1996 and A.P. Gazette No. 1-A, dated 04.01.1990 and also revenue record like RSR extract.6
Thereafter, a complaint petition dated 04.09.2014 by Sri Afan Quadri (Copy enclosed) was received at this office wherein it is stated that the deputed staff for the Joint inspection had wrongly reported that the Eidgah comes under Survey No. 182 and not in by No.181 with area enhance to Ac.00-18 gts of Sy.No..182 is alleged baseless and without documentary evidence."
11. Learned Standing Counsel further submits that Section 35 of A.P.Waqf Board Regulations, 1963, provides for preferring an appeal; however, without availing such remedy, by overriding the same, the petitioner has approached this Court by filing the present Writ Petition. The learned Standing Counsel, therefore, contends that the present writ petition is not maintainable and the same is liable to be dismissed.
12. In support of his contention, learned counsel appearing for the petitioner relied upon the judgment of the Hon'ble Apex Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others 1, wherein the Hon'ble Apex Court held as follows :-
"16. Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 :
AIR 1950 SC 163 : 1950 SCR 566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, 1 (1998) 8 Supreme Court Cases 1 7 "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances."
13. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Apex Court in RADHA KRISHAN INDUSTRIES Vs. STATE OF HIMACHAL PRADESH AND OTHERS 2, wherein the Hon'ble Apex Court held as follows :-
"15. While dismissing the writ petition, the High Court held [Radha Krishan Industries v. State of H.P., 2021 SCC OnLine HP 4566] that it was undisputed that the third respondent and the Divisional Commissioner, who has been appointed as Commissioner (Appeals) under the GST Act, are constituted under the HPGST Act, and therefore, it is assumed that there is no illegal or irregular exercise of jurisdiction. The High Court further observed that even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction, and though the order may be irregular or defective, it cannot be a nullity so long it has been passed by the competent authority."
14. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Apex Court in GODREJ SARA LEE LIMITED Vs. EXCISE AND TAXATION OFFICER-CUM-ASSESSING AUTHORITY AND OTHERS 3, wherein the Hon'ble Apex Court held as follows :-
"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 2 (2021) 6 Supreme Court Cases 771 3 2023 SCC Online SC 95 8 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. 9
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."
15. This Court, having considered the rival submissions made by learned counsel for the respective parties, is of the considered view that no doubt, as per Section 35 of the A.P.Waqf Board Regulations, 1963, there is a provision of preferring an appeal and the petitioner can prefer an appeal. But, in view of the lapse of several years, as the writ petition is filed in the year 2018 and as the petitioner is now aged about 55 years, it is not just and proper to direct the petitioner to prefer an appeal. Further, in GODREJ SARA LEE's case ( supra), the Hon'ble Apex Court held that writ petitions cannot be held as "not maintainable" merely because the parties have not perused the alternative remedy provided by the relevant statutes, without examining as to whether a proper case has been made out. Once the disciplinary proceedings are pending before the authorities concerned and an interim order was also passed for reinstatement, without concluding the said disciplinary proceedings, issuing a second show- 10 cause notice to the petitioner is not just and proper. In the impugned proceedings dated 13.06.2018 it is observed as follows :-
"......On the receipt of the report from Collector Adilabad, after conducting Re-survey and demarcation as per the super check by the AD, Sruveyor and Land Record, final order in the disciplinary cases against the charged officer may be issued. Further, it is also stated that the actual location is to be traced and so that the case of Mohammedia Masjid could be settled."
16. In the instant case, with regard to the issuance of the first show-cause notice, it is not an individual action against the Department but rather a strike call notice given by the Association, which is part and parcel of the activities of employees union and by virtue of the said legal right, the petitioner has participated in the one day strike. Further, had the petitioner individually created any nuisance or committed any illegal action, then the Department would have been justified in taking serious action against him. However, it was the collective decision of the employees union to participate in the strike for grant of their legitimate rights. Therefore, the Department cannot take it as an individual action of the petitioner and the respondents; having reinstated the other suspended employees pursuant to the orders of this Court, denying the petitioner's case for reinstatement is nothing but the violation of the principles of natural justice.
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17. Having regard to the facts and circumstances of the case, the impugned order dated 13.06.2018 passed by the 2nd respondent is set aside and the respondents are directed to consider the case of the petitioner afresh, as the imposition of punishment of removal from service is highly disproportionate to the alleged misconduct committed by the petitioner and impose a lesser punishment other than removal from service, and pass appropriate orders in accordance with law within a period of three months from the date of receipt of a copy of this order.
18. Accordingly, the writ petition is disposed of. No costs.
Pending miscellaneous applications, if any, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 02.02.2024 Prv