Vijay Prakash Singh vs Union Of India & Others
2018 Latest Caselaw 1734 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?       AFR
 
Court No. - 16
 

 
Case :- WRIT - A No. - 5642 of 2012
 

 
Petitioner :- Vijay Prakash Singh
 
Respondent :- Union Of India & Others
 
Counsel for Petitioner :- J.P. Singh
 
Counsel for Respondent :- A.S.G.I.,Pramod Kumar Singh,Santosh Kumar Mishra,Vijay Shanker
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

This writ petition has been filed by the petitioner against the order of punishment dated 24.9.2011 passed by the Commandant, 95 Battalion, C.R.P.F, Varanasi.

The learned counsel for the respondent has pointed out that the petitioner has preferred an appeal but he has preferred the appeal to Inspector General, Central Reserve Police Force (CRPF), Bihar Sector, Patna, whereas he should have filed the appeal before the Deputy Inspector General. In the counter affidavit filed by the respondents it has been mentioned that as per Rule 28 of the CRPF Rule, 1955, appeal against the order passed by the disciplinary authorities should be made to the Deputy Inspector General who is the Revisional Authority against the provision Rule 28 (d) of CRPF Rule 1955. But the time barred application submitted by the petitioner did not contain the signature of the delinquent employee and therefore, it was returned to the petitioner by the D.I.G. Muzaffarpur on 22.12.2011 with the directions to submit the appeal to the D.I.G. Muzaffarpur with a request of condonation of delay also be filed along with it. Till the date of filing of writ petition no appeal was filed by the petitioner.

The learned counsel for the petitioner says that objection regarding maintainability of the writ petition in view of the statutory remedy being available to the petitioner, has been raised at a belated stage.

It appears that the writ petition was filed on 30.1.2012. In the counter affidavit filed on 15.5.2012 a specific plea with regard to non maintainability of the writ petition in view of the statutory remedy as aforesaid was taken. The writ petition remain pending thereafter. The preliminary objection was not decided.

In a similar case before the Supreme Court where the respondents had raised the preliminary objection regrading statutory remedy at the stage of admission in 2008 (12) SCC 110, the Supreme Court observed in paragraph 38 thus:

With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the 'head note' of All India Reporter (AIR), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court.

The relevant paragraph 2 of the decision reads thus:

"2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed".

(emphasis supplied)

Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ- petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner.

In view of the law laid down by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another Vs. Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and others, (2008) 12 SCC 675. This writ petition cannot be entertained in view of the statutory remedy being available to the petitioner.

However, the learned counsel for the petitioner has relied upon an order rendered by Hon'ble Supreme Court in the case of Durga Enterprises (P) Ltd. and another Vs. Principal Secretary Government of U.P. and others Hon'ble Supreme Court considered the facts of the case regarding the pendency of the writ petition for 13 years which was summarily dismissed thereafter by the High Court relegating to the parties to the remedy of the civil suit. The order relied upon by the learned counsel for the petitioner was rendered in the facts of the case as is evident from the language of the said order passed by the Hon'ble Supreme Court on 3rd September 2004.

The judgment rendered by the Hon'ble Supreme Court in Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti (supra) has dealt with the law with regard to even an admitted writ petition pending for long years before the High Curt being not maintainable and being dismissed as such relegating the respondent therein to file the remedy before the labour court.

The learned counsel for the petitioner has also relied upon in the case of Dhani Ram Vs. Chief Engineer Raj Ghat Project Vetwa River Board, Nandanpura, Jhansi and others rendered by the Division Bench of this Court reported in 2013(5) ADJ, page 691. This Court was considering the situation regarding the alternative remedy being available and relied upon the judgment rendered by the Hon'ble Supreme Court in Dr. Bal Krishna Vs State of U.P. and others (1996) 2 UPLBEC, page 1056 and Division Bench of this Court in Roshan Lal vs. State of U.P. and others, 2009 (9) ADJ 670.

The learned counsel for the petitioner has further relied upon relied upon another Division Bench judgment of this Court in Diwakar Datt Bhatt vs. Life Insurance Corporation of India and another, (1998)2 UPBLEC 1154, which also related to alternative remedy being available and the writ petition being filed, a judgment rendered by this Court in Lokman Singh Vs. Deputy General Manager U.P.S.R.T.C. Meerut and others 2006 (8) ADJ page 646 has also been relied upon. In this case this Court observed that after exchange of pleadings and pendency of the writ petition for long it should not be dismissed on ground of alternative remedy.

In none of the cases as referred to by the Hon'ble Division Bench in Dhani Ram was any preliminary objection raised at the time of filing of the counter affidavit itself regarding the statutory remedy being available which has not been availed by the petitioner. The judgment rendered by the Hon'ble Supreme Court in the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti (supra) deals specifically with statutory remedy being available and the objection being raised at the time of admission of the writ petition by the State respondents therein being not considered by the Court.

This Court is also aware of the judgment rendered by the Hon'ble Supreme Court in the case of United Bank of India vs. Satyawati Tondon, (2010) 8 SCC 110, where also Supreme Court considered on earlier binding precedents with regard to the availability of statutory remedy passed and made observations in paragraph 4 a thus:

"The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa (supra) were echoed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985)1 SCC 260 in the following words:

"Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill- suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."

The learned counsel for the petitioner on merits of the case has tried to submit that filing of an appeal before departmental authorities would be like making an appeal from ceaser to ceasers wife and it is his case that there is a tendency the departmental authorities to affirm a decision taken by the Disciplinary Authority.

If that be so, as argued by the counsel for the petitioner then in all such matters where statutory remedy available writ petitions would be entertained by this Court flooding the dockets. In any case, the respondent no.3 had passed an order in a disciplinary proceedings and if the petitioner is disputing that he had not consumed alcohol then it was a disputed question of fact that has to be looked into by the Appellate Authority at the first instance, and in case there was any infirmity in the procedure or in the findings of that recorded by the department. The same can also be interfered with by the Appellate Authority.

In view of the law settled by the Hon'ble Supreme Court in the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti (supra) and Satyawati Tondon (supra), this writ petition is dismissed on the ground of statutory remedy alone.

The petitioner may file his appeal before the D.I.G. Muzaffarpur who shall pass an appropriate order on merits of the case by summoning the record from the respondent no.3 and being uninfluenced by any observations made in this order.

If the appeal shall be filed by the petitioner within a period of three weeks from today, the same shall be decided by the Appellate Authority within a further period of three months on merits and it shall not be rejected on grounds of delay.

Order Date :- 27.7.2018

A. Tripathi