Dhani Ram vs Chief Engineer And Another
2013 Latest Caselaw 2512 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                          A.F.R.
 

 
                                                                            Reserved
 

 
Special Appeal No. 1301 of 2012
 

 
Dhani Ram                         .....                                 Appellant
 

 
                                           Versus
 

 
Chief Engineer 
 
Raj Ghat Project
 
Betwa River Board, Nandanpura,
 
Jhansi and others                 ....                                  Respondents                                                                 
 
                                      
 

 
Hon'ble S.K. Singh, J.

Hon'ble B.K. Srivastava, J.

(Delivered by Hon'ble S.K.Singh, J.)

Heard Sri Bhupendra Nath Singh, learned Advocate in support of this appeal and Sri Subodh Kumar, learned Advocate who appeared for respondents.

This special appeal is directed against the judgment of the learned Single Judge dated 16.03.2012 passed in Civil Misc. Writ Petition No. 28744 of 2000.

To appreciate the issue some basic facts will be necessary.

Writ petition was filed by the appellant against the orders of the competent authority dated 17.5.2000 by which he was removed from service.

Appellant was serving as a Gateman in the Raj Ghat Project,Betwa River Board, Nandanpura, Jhansi. He applied for earned leave w.e.f. 1.4.2000 to 20.4.2000 on medical ground for his treatment and thereafter leave was extended by moving leave extension application dated 20.4.2000. He having been declared fit to resume duties, finally he joined his duties on 26.5.2000 upon which he was handed over with a letter dated 17.5.2000 stating his removal on the ground of unauthorized absence from duty.

Writ petition was filed by the appellant which was entertained and respondents were called upon to file response upon which pleadings completed. On 20.7.2009 the case was listed. On that date office of the learned Advocate states that case was not marked by the clerk and in absence of counsel writ petition was dismissed on the ground of alternative remedy.

On coming to know about the order the application for recall was filed along with application for condonation of delay. Ground for condonation is the mistake of the office of the learned Advocate in not marking the case and thus his absence but the recall has been rejected on 16.3.2012.

In the appeal the sole ground is that the writ petition having been entertained on merits in the year 2000 and pleadings having been completed it should not have been dismissed after about nine year on the ground of alternative remedy.

Submission is that on adjudication of the case on merits and on consideration of various aspects if the court was to record a finding that various factual issues are to be decided it could have taken a view to dismiss the writ petition on the ground of availability of alternative remedy but straightway dismissal for that reason is not at all justified.

Be as it may, parties having agreed, we are to decide the appeal on merits.

At the start of the argument learned counsel for the respondents, as maintained in the writ petition raised a ground of dismissal of the appeal on the ground of alternative remedy for which writ petition was dismissed. The argument is that once petition is entertained and respondents are called upon to file response do not prohibit the court not to dismiss the same on the ground of alternative remedy. If this is made a rule then it will be neither sound nor appropriate and sometimes it may be able of being misused. Reliance has been placed on the judgment given by the Apex Court in case of State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others reported in (2008) 12 SCC 675.

To the contrary, learned counsel for the appellant placed reliance on certain decisions of this court and that of the Apex Court to submit that after entertaining the petition on merits and completion of pleadings, after such long, unless there are serious triable factual issue, petition is not to be dismissed on the ground of alternative remedy.

In a decision given by the Apex Court in case of M/s Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad reported in AIR 1969 SC 556 following observations were made-

"It is a well-established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed v. The Municipal Board, Kairana,1950 SCR 566==(AIR 1050 SC 163), "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere. in a writ petition unless there are good grounds therefore. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self imposed limitation, a rule of policy, and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. In The State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595, 605= (AIR 1958 SC 86,93), S.R. Das, C.J., speaking for the Court, observed:

"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 Ed., Vol. II, 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. In the King v. Postmaster-. General Ex parte Carmichael [1928 (1) K.B. 291] a certiorari was issued although the aggrieved party had and alternative remedy by way of appeal. It has been held' that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex parte Read [1942 (1) K.B. 281] is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It Was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction."

In another decision given by the Apex Court in case of L. Hirday Narain Vs. Income Tax Officer, Bareilly reported in AIR 1971 SC 33 following observations were made-

" An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by s. 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under s. 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition which was entertained and was heard on the merits.

There is another decision of the Apex Court given in case of Dr. Bal Krishna Agarwal Vs. State of U.P. and others reported in (1996) 2 UPLBEC 1056 in which following observations were made-

"10.Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994."

After considering several Apex Court decisions the Division Bench of this Court in case of Roshan Lal Vs. State of U.P. and others reported in 2009(9) ADJ 670 made following observations-

"7. It is well settled that existence of alternative remedy does not bar the jurisdiction of this Court. It is a matter of discretion and not jurisdiction. It is self imposed discipline, wherein when an Act provides for a complete machinery for seeking redress, the writ Court declines to interfere in the matter and relegate a litigant to the remedy provided under the Statute. Power under Article 226 of the Constitution is not intended to circumvent statutory procedure but it is not an absolute bar and merely a factor, which requires consideration while exercising the power. Dismissal of the writ petition on the ground of alternative remedy long after its filing and exchange of pleadings, may lead to shutting the door of alternative remedy itself. Provisions of alternative remedy in many of the cases provide for limitation and in case writ petitions are dismissed after exchange of pleadings after a long time, the damage cannot be countenanced.

`8. In the present case, we proceed on an assumption that the petitioner has alternative remedy, but the question which falls for determination is as to whether in the facts of the present case, wherein the writ petition filed on 27.11.2001 was entertained and respondents and petitioner granted time to file counter affidavit and rejoinder and they having exchanged the pleadings, the learned Judge was right in dismissing the writ petition on 24.07.2009 on the ground of alternative-remedy.

9. Having given our anxious consideration to the question involved, we are of the opinion that the learned Judge erred in dismissing the writ petition on the ground of existence of alternative remedy at such a distance of time. The point in issue is no more res integra, as the Supreme Court had the occasion to consider the same in the case of L. Hirday Narain Vs. Income-Tax Officer, Bareilly, AIR 1971 SC 33, in which it has been held as follows:-

"12. An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the.merits."

(Underlining ours)

10. The Supreme Court had also considered this issue in the case of Durga Enterprises (P) Ltd. & Anr. Vs. Principal Secretary, Govt. of U.P. & Ors., (2004) 13 SCC 665 in which, in categorical terms, it has been held that the High Court having entertained the writ petition in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. Relevant portion of the judgment of the Supreme Court in this regard, reads as follows:-

"2. By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents' alleged right of re-entry on the disputed property in accordance with sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid Rules contain a mechanism for adjudication of a dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved.

3. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.

4.We, therefore, set aside the impugned order of the High Court and remit the matter to it for taking a decision on merits, after hearing the parties, within the earliest possible period." (Underlining ours).

A Division Bench of this Court had also the occasion to consider this question in the case of Diwakar Dutt Bhatt Vs. Life Insurance Corporation of India & Anr., (1998) 2 UPLBEC 1154, in which it has been held that the bar of alternative remedy is nothing but a matter of self-imposed discipline and in a case in which the petition was entertained and pleadings have been exchanged, it would be inexpedient to dismiss the writ petition on the ground of alternative remedy. Paragraph 12 of the judgment, which is relevant for the purpose, reads as follows:-

As far as the first ground is concerned the writ-petition was filed on 29.10.1997. The petition was entertained and the respondents were directed to file the counter-affidavit. The counter affidavit has been filed. The rejoinder affidavit has also been filed. The case was heard today. No doubt the administrative instructions provide for filing of an appeal but the question which remains to be decided is, as to whether, on the ground of availability of an alternative remedy the writ-petition, which has been entertained can be thrown out and the petitioner be relegated to the appellate authority. The bar of the alternative remedy is nothing but a matter of self-imposed discipline which the Courts have imposed upon themselves for the reason that the jurisdiction of Article 226 of the Constitution of India, should be invoked after exhausting the alternative remedies available to an aggrieved person."

This question also fell for consideration before a learned Single Judge of this Court in the case of Indra Narain Tripathi Vs. Union of India & Ors., (2006) 1 UPLBEC 1012, in which it has been held that after exchange of pleadings and four years of presentation of the writ petition, it would not be appropriate to throw out the petition on the ground of alternative remedy. Relevant portion of the said judgment reads as follows:-

"3. Learned Counsel for the respondent has raised a preliminary objection that a statutory revision lies against the impugned orders and in fact the petitioner has alleged that he had preferred the revision on 24.5.2001, therefore, the petition is not maintainable. The respondents in their counter affidavit have denied that any memo of revision was received by the Competent Authority. The appeal of the petitioner was decided after about a decade of the removal order. This petition has remained pending for the last about 4 years and pleadings have been exchanged between the parties. Thus, on these facts it would not be appropriate to throw out the petition on the ground of alternative remedy."

Same view has been taken by this Court in the case of Lokman Singh Vs. Deputy General Manager U.P.S.R.T.C. Meerut & Ors., 2006 (8) ADJ 646, in which dismissal of the writ petition after exchange of pleadings after long distance of time on the ground of alternative remedy under the Industrial Disputes Act, was found to be unsustainable. Paragraph 4 of the judgment, which is relevant for the purpose, reads as follows:-

"4. No doubt, the petitioner has a remedy of raising a dispute under the U.P. Industrial Disputes Act. However, since the petition was entertained in the year 1997 and counter and rejoinder affidavits have been exchanged, it would not be proper for the Court to relegate the petitioner to an alternative remedy under the Industrial Disputes Act at this stage, and that too, after a period of almost 10 years. Consequently, the preliminary objection made by the learned Counsel for the respondents is rejected."

Bearing in mind the aforesaid principle, when we consider the facts of the case, we are of the opinion that the learned Judge, after having entertained the writ petition, directed the parties to file counter and rejoinder affidavits and that having already been done, at such a distance of time, ought not to have dismissed the writ petition on the ground of alternative remedy.

We hasten to add that after exchange of pleadings, the Court may not be in a position to decide the disputed question of fact, for the reason that for deciding the same, evidence may be required to be laid, and in such circumstance the writ petition cannot be dismissed on the ground of alternative remedy but on the ground that the issue of fact cannot be decided in a writ petition."

After following the decision given by this Court in case of Roshan Lal (Supra) , recently Special Appeal No. 1672 of 2011 was allowed by this Court on 10.1.2013. The order passed in the Special Appeal, referred above, is hereby quoted-

"We have heard learned counsel for the appellant, learned counsel for the State and the learned counsel representing the respondent no. 5 and the legal representatives of the deceased respondent-no.4.

The case is squarely covered by the decision of a Division Bench of this Court in the case of Roshan Lal Vs. State of U.P. & others, reported in 2009(9) ADJ-670.

Following the said Division Bench decision the impugned order of the learned Single Judge passed in the writ petition is set aside.

The matter is remitted back to the learned Single Judge for reconsideration on merits.

The appeal is accordingly allowed as above."

The decision given in the case of State of U.P. (Supra) as relied by learned counsel for the respondents has no application to the facts of the present case.

We are here to observe that litigation that may be of any nature takes usually long time in its maturity and then its disposal from stage to stage. If there is a stage prior to this Court then that is to be certainly exhausted. But here in the writ we exercise extraordinary powers where in the interest of justice, in the fitness of things, on finding apparent error in the impugned order, on finding violation of Principle of Natural Justice, we can always entertain petition straightway without feeling any impediment and thus if the Court was satisfied to entertain then the same Court if after ten years on completion of everything at the time of final hearing instead of deciding the claim on merits, proposes to dismiss the petition by relegating the litigant to a lower stage then one may feel answerable to the loss of ten years time which the litigant counts day to day. That can certainly embrass the Court besides feeling it to be unjust, inequitable for variety of reasons.

We are already over burdened with the cases practically in all the Courts right from bottom to top, and therefore, if we keep the matter pending in this Court for good number of years then unless there is exceptional circumstance there has to be a decision on merits, i.e. allow, dismiss or remand. Technicality is not to be permitted over the equity. Restrain in accepting the matter is to be at the first instance but once that is cleared there has to be discussion on merits. It has been throughout said that relegation on the ground of alternative remedy is a self imposed restriction and therefore, if one is to be thrown out on that ground then that is to be in the beginning so that during long interval he may be able to cross over the hurdles so as to reach this court and therefore, dismissal at the time of hearing on that very ground will be taking away long years of the litigant and he is to be placed at the same place where he was.

It can be a situation where this court in the light of the pleadings is not able to reach to a conclusion giving a final shape to the issue then having no option remittal will be a need.

At this stage, we are to notice that one of ground taken is that writ petition was decided ex-parte and therefore, arguments were on the restoration application on the grounds given therein but learned Single Judge maintained the order by dismissing the application without considering that aspect.

Be as it may, it happens to be a case of poor litigant who was engaged as Gateman in a project and for the alleged authorized/unauthorized absence of hardly two months he was removed from service and his writ was entertained in 2000 and was dismissed on the ground of alternative remedy in the year 2009 in absence of his counsel and thus we are satisfied that it is a fit case where order of learned Single Judge is to be set aside.

Accordingly, the appeal succeeds and is allowed. The order of the learned Single Judge dated 16.03.2012 is hereby set aside. The matter is remitted back to the learned Single Judge for reconsideration of the claim of parties on merits.

Office is to list the writ petition before appropriate Court under appropriate Head in the first week of July, 2013.

22nd May, 2013

M.A.A.