M V Nanda Kumar vs Andhra Pradesh Power Generation ...
2021 Latest Caselaw 130 AP

   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                  WRIT PETITION NO.678 OF 2021
ORDER:

This writ petition is filed under Article 226 of the Constitution

of India seeking the following relief:

"to issue a writ of Mandamus or any other appropriate writ, order or direction, declaring the action of the 2nd respondent in issuing Proceedings No.CGM(ADM.IS & ERP)/DS(ADM)/EE(ADM)/Dy.EE (Adm-I)/11/2014 dated 06.05.2020, awarding punishment of 'dismissal' from service as illegal, arbitrary, contrary to Regulation-10(2)(a) of APSEB (Revised) Conduct Regulations adopted by the 1st respondent and set-aside the same."

It is the case of the petitioner that, the second respondent

issued proceedings No.CGM (ADM.IS & ERP)/DS(ADM)/EE(ADM)/

Dy.EE (Adm-I)/11/2014 dated 06.05.2020 to the petitioner awarding

punishment of 'dismissal' from service as illegal, arbitrary, contrary

to Regulation 10(2)(a) of Andhra Pradesh State Electricity Board

(Revised) Conduct Regulations adopted by the first respondent and

without recalling the earlier order of dismissal dated 18.05.2018.

It is the contention of the petitioner that, the interse

matrimonial dispute between the petitioner and one Esther Rani has

nothing to do with the discharge of the petitioner's duties. Bonafidely

thinking that his wife would not return and make any claim since

she deserted the petitioner voluntarily, during the course of his

service, the petitioner declared one Ch.Krupavathi as his wife and

children born to her as the petitioner's family members. Without

appreciating the facts and circumstances of the case, the second

respondent issued Charge Sheet dated 31.10.2014 alleging that the

petitioner has furnished false information and he developed illicit

intimacy with Ch.Krupavathi and declared her as the wife of the

petitioner in the service records of the Corporation.

MSM,J WP_678_2021

Thereafter, the second respondent imposed penalty of

dismissal from service to the petitioner through proceedings dated

26.09.2015 without conducting enquiry as mandated under

Regulation 10(2) of Andhra Pradesh State Electricity Board (Revised)

Conduct Regulations. Subsequently, W.P.No.34111 of 2015 was

filed by this petitioner directing the respondents to reinstate the

petitioner into service. Vide order dated 14.10.2015, the writ petition

was allowed, setting aside the proceedings dated 26.09.2015 and

directed the respondents to reinstate the petitioner into service, while

permitting the respondents to conduct fresh enquiry against the

petitioner in accordance with law. While the matter is pending, the

order dated 06.05.2020 impugned in the writ petition is passed by

the respondents which is now challenged on the ground that, when

the status quo order was passed by the Court, passing an order

impugned in the writ petition is illegal and arbitrary.

At the stage of hearing, Sri C. Raghu, learned counsel for the

petitioner reiterated the contentions urged in the writ petition.

Whereas, Sri M. Vidyasagar, learned Standing Counsel for A.P.

GENCO contended that, an appeal is provided under Regulation

No.18 of The Andhra Pradesh State Electricity Board (Revised)

Conduct Regulations and without approaching the appellate

authority/APGENCO, the petitioner invoked the jurisdiction of this

Court, which is purely discretionary in nature and when alternative

remedy is available, the petitioner is not entitled to claim relief in the

writ petition which is purely discretionary in nature and requested to

dismiss the writ petition.

MSM,J WP_678_2021

Without touching the merits of the case, it is well settled that,

when an alternative remedy is available, the Courts would not

normally exercise jurisdiction under Article 226 of the Constitution

of India, unless the order was passed in violation of principles of

natural justice or any statutory provisions. Here, in this case, it was

not the petitioner's case that the respondents violated principles of

natural justice or any other law, but in deviation of the order passed

in the earlier writ petition.

No doubt, availability of alternative remedy is not a bar to

entertain writ petition under Article 226 of the Constitution of India,

but the Courts will not normally encourage such writ petitions under

Article 226 of the Constitution of India when a statutory remedy is

available to the aggrieved person. The Andhra Pradesh State

Electricity Board (Revised) Conduct Regulations are statutory in

nature and Regulation No.18 provided an appeal against an order

passed by the disciplinary authority/appointing authority. But,

without exhausting the statutory remedy, the petitioner approached

this Court, thereby, this Court is not inclined to exercise discretion

under Article 226 of the Constitution of India.

In the recent judgment Genpact India Private Limited v.

Deputy Commissioner of Income Tax and another1 the Division

Bench of the Apex Court held that, when a statutory remedy is

available under the statute, the Court would not normally entertain

the writ petition against assessment order. The Apex Court finally

concluded that, if the submission is accepted, every time the dispute

will be required to be taken up in proceedings such as a petition

under Article 226 of the Constitution, which normally would not be

(2019) 311 CTR (SC) 737 MSM,J WP_678_2021

entertained in case of any disputed questions of fact or concerning

factual aspects of the matter. The assessee may thus, not only lose a

remedy of having the matter considered on factual facets of the

matter but would also stand deprived of regular channels of

challenges available to it under the hierarchy of fora available under

the Act.

In view of the law declared by the Apex Court in the judgment

referred supra, I am not inclined to exercise the discretionary

jurisdiction under Article 226 of the Constitution of India, while

relegating the petitioner to approach the respondents/APGENCO in

terms of Regulation No.18 of Andhra Pradesh State Electricity Board

(Revised) Conduct Regulations.

With the above direction, writ petition is disposed of,

permitting the petitioner to prefer an appeal under Regulation No.18

of the Andhra Pradesh State Electricity Board (Revised) Conduct

Regulations and in the event of filing an appeal against the

impugned order, respondent/APGENCO is directed to dispose of the

same in accordance with law, as expeditiously as possible, in any

event not later than three months from the date of serving notice on

the respondent therein. No costs.

Consequently miscellaneous petitions pending, if any, shall

also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 18.01.2021

SP