Allahabad High Court

Sri Om Prakash Mishra vs State Of U.P. Through Secretary, on 25 September, 2013

Bench: Vishnu Chandra Gupta




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 17
 

 
Case :- SERVICE SINGLE No. - 5106 of 2009
 

 
Petitioner :- Sri Om Prakash Mishra
 
Respondent :- State Of U.P. and others
 
Counsel for Petitioner :- Km.Vishwa Mohini
 
Counsel for Respondent :- C.S.C.,Rakesh Kumar
 

 
Hon'ble Vishnu Chandra Gupta,J.

Heard Km. Vishwa Mohini, learned counsel for the petitioner, Sri Devendra Upadhayay, learned counsel for the State and Sri Rajesh Kumar, learned counsel for the respondent no.2.

A preliminary objection has been raised by Sri Rajesh Kumar, learned counsel for the respondent no.2 that against the impugned order an alternative remedy for statutory appeal is available under the provisions of Regulation 60 of the U.P. Primary Agricultural Co-operative Credit Societies Service Regulation, 1978. In this regard, he has relied upon the decision of the Apex Court rendered in the case of Kanaiyalal Lalchand Sachdev and others Vs. State of Maharashtra and others, (2011) 2 SCC 782. It has been submitted by Sri Rajesh Kumar that when an efficacious and effective remedy is available, the writ jurisdiction under Article 226 cannot be invoked. In support of his contention, he replied upon the paragraphs 24 and 25 of the aforesaid judgment, which is as under:

"24. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala this Court had observed that: (SCC p.175,para 30)

30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of the writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(d) the person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(d) grant of relief is against public policy or barred by any valid law; and host of other factors."

25. In the instant case, apart from the fact that admittedly certain disputed questions of fact viz. non-receipt of notice under Section 13(2) of the Act, non-communication of the order of the Chief Judicial Magistrate, etc. are involved, an efficacious statutory remedy of appeal under Section 17 of the Act was available to the appellants, who ultimately availed of the same. Therefore, having regard to the facts obtaining in the case, the High Court was fully justified in declining to exercise its jurisdiction under Article 226 and 227 of the Constitution."

Learned counsel for the petitioner alleged that the availability of alternative remedy is not an absolute bar in invoking the jurisdiction under Article 226/227 of the Constitution of India and in support of her contention, she relied upon the judgment in M.P. State Agro Industries Development Corporation and another v. Jahan Khan, AIR 2007 SC 3153. She further relied upon the paragraph 14 of the writ petition and on the basis of which it has been submitted that inquiry so conducted was suffering from procedural illegality. Thus the outcome of the inquiry is the result of violation of the principles of natural justice and in such circumstances, the petitioner cannot be compelled to seek remedy of appeal as he has already opted to proceed under Article 226/227 of the Constitution of India. Learned counsel for the petitioner heavily placed reliance upon the paragraph 10 of M.P. State Agro Industries Development Corporation (supra), which reads as under:

"10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks , Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd. )."

The facts of the aforesaid case i.e. M.P. State Agro Industries Development Corporation (Supra) were that major penalty was imposed upon the respondent without conducting any inquiry at all. In the present case, the inquiry was conducted and certain illegality in procedure were alleged to have been committed during inquiry proceedings resulting in violation of principles of natural justice. Learned counsel for the petitioner further relied upon the judgment of the Apex Court in the case of L.K. Verma v. H.M.T. Limited and another, AIR 2006 SC 975 wherein it was held that statutory appeal cannot be an absolute bar and is a rule of discretion and discipline. Learned counsel for the petitioner relying upon the judgment of this Court in the case of Rajendra Prasad Tripathi v. State of U.P. And others, 2004(22) LCD 1551 submitted that when the principles of natural justice are violated, the Court intervene under Article 226 of the Constitution of India.

I have gone through the authorities cited at the bar and carefully considered the same in the light of submission of parties.

Normally, the writ jurisdiction is not invoked if an alternative and efficacious remedy is available though it is not an absolute bar and is a rule of discipline.

Every case has to be looked into keeping in view the facts of that case, the stage of the proceedings, the matter involved, the nature of alternative remedy available and its effectiveness. The present writ petition has not yet been admitted for hearing. Preliminary objection has been raised at the very outset. It is not in dispute that an inquiry was conducted and major penalty was awarded. It is stated on behalf of the petitioner that no date, time and place has been fixed nor any reasonable opportunity of hearing has been given nor oral evidence has been adduced. Therefore, this Court must invoke the jurisdiction under Article 226 of the Constitution of India.

Now the question comes for consideration before this Court, whether the points which have been raised in this writ petition could be considered by the appellate authority or not. No doubt, the answer would be in affirmative. It is not the case of the petitioner that appellate authority cannot set aside the order impugned on the question which has been raised in this petition. The High Court is already over burden and if the discipline is broken in each and every case, there should be a flood of litigation by passing the statutory remedies which is not intended by the Apex court in either of the judgment cited at bar. Hence, I am of the view that the petitioner has an efficacious and effective remedy to file an appeal. Therefore, the petition is not maintainable.

In view of above, the writ petition is dismissed on the ground of availability of alternative remedy.

However, liberty is granted to the petitioner to prefer an appeal before the appropriate forum within two weeks from today. In case, the appeal is preferred before the concerned authority, the same shall be disposed of on merit in accordance with law expeditiously.

Order Date :- 25.9.2013

akverma