Bombay High Court
Rajendra Baburao Patil vs The State Of Maharashtra Through Its ... on 30 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:3266-DB
907-WP-224-2024-Judgment.odt
REPORTABLE
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 224 OF 2024
Rajendra S/o Baburao Patil
Age: 59 years, Occu: Retired,
R/o. "Apulki", Plot No.42,
Domdekar Nagar, Pimprala,
Jalgaon, Tq and District Jalgaon ... Petitioner
VERSUS
1. The State of Maharashtra
Through its Secretary,
General Administration Department,
Mantralaya, Mumbai - 32
2. The Divisional Commissioner
Nashik Division, Nashik
3. The Chief Executive Officer
Zilla Parishad, Jalgaon, District Jalgaon
4. The Chief Accountant and Finance Officer,
Zilla Parishad, Jalgaon,
District Jalgaon ... Respondents
....
Mr. Y. B. Bolkar, Advocate for Petitioner
Mr. S. B. Narwade, AGP for Respondent Nos. 1 and 2
Mr. V. V. Gujar, Advocate for Respondent Nos. 3 and 4
....
CORAM : RAVINDRA V. GHUGE AND
Y. G. KHOBRAGADE, JJ.
DATE : 30.01.2024
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ORAL JUDGMENT (Per : Ravindra V. Ghuge, J.) :-
1. Rule. Rule made returnable forthwith and heard finally
by the consent of the parties.
2. This is a peculiar case wherein, the employer has
practically ignored the fundamental principles of service
jurisprudence, while partly disagreeing with the findings of the
Enquiry Officer and attaching a stigma to the career of Petitioner
which has affected his career, though he was exonerated by the
Enquiry Officer of all the charges levelled against him.
3. This Petition before us is for seeking the deemed date of
promotion, in terms of prayer clauses (B), (C) and (D), which read as
under:-
"(B) By way of appropriate writ order or direction in the like
nature, this Hon'ble High Court may kindly quash and set aside
the impugned Order dated 19/08/2022 passed by the
Divisional Commissioner, Nashik Division, Nashik in proceeding
bearing No. Sankirna-2022/20717/VIASHA/ASTHA-2.
(C) By way of appropriate writ order or direction in the like
nature, this Hon'ble High Court may kindly direct respondent
Nos. 2 to 4 to extend the deemed date of promotion w.e.f.
30/08/2007 for the post of Junior Accountant in favour of
petitioner, and consequently to direct the respondent
authorities to pay the difference of arrears of monetary benefits
w.e.f. 30/08/2007.
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(D) Pending hearing and final disposal of this Writ Petition,
this Hon'ble High Court may kindly direct respondent Nos. 2 to
4 to extend the deemed date of promotion w.e.f. 30/08/2007
for the post of Junior Accountant in favour of petitioner, and
consequently to direct the respondent authorities to pay the
difference of arrears of monetary benefits w.e.f. 30/08/2007."
4. The undisputed facts are as under:-
(a) The Petitioner was appointed as a Junior Assistant on
07.03.1984.
(b) On 29.08.2007, the Zilla Parishad decided to conduct a
Departmental Enquiry against the Petitioner after levelling
charges of negligence in duties.
(c) On 30.08.2007, Respondent No.3 promoted two senior
employees and a few junior employees to the post of Senior
Assistant (Accounts), ignoring the Petitioner, due to
pendency of the Departmental Enquiry.
(d) On 24.06.2008, the Enquiry Officer submitted his enquiry
report concluding that no charges are proved against the
Petitioner.
(e) On 13.01.2009, as a consequence of his exoneration,
Respondent No.3 promoted the Petitioner to the post of
Senior Assistant (Accounts).
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(f) Hence, the demand for the deemed date of promotion
w.e.f. 30.08.2007, when juniors were promoted and the
Petitioner was ignored on account of the pendency of the
disciplinary proceedings.
5. The submissions of the Petitioner are that, by virtue of
Clause 5 under Annexure-A to a Government Resolution dated
06.06.2002, if a Departmental Enquiry is pending and subsequently
if the charge-sheeted employee is exonerated or a minor punishment
is imposed, he would be entitled to the deemed date in matters of
promotion. However, we are informed that the said GR has been
repealed by a Notification dated 21.06.2021.
6. The Petitioner draws our attention to the conclusion of
the Enquiry Officer that the two charges levelled upon the Petitioner,
are not proved and he has exonerated. He further points out that the
order of punishment dated 05.02.2009 was passed after his
promotion on 13.01.2009, wherein, the Disciplinary Authority came
to the conclusion that though the charges levelled upon the Petitioner,
are not proved and he is exonerated, the charges are of serious nature
and therefore, he should be punished by recording a "blot" ('thapkaa'
in Marathi, which amounts to attaching a "stigma") on his career. For
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clarity, we are reproducing the conclusion of the Disciplinary
Authority, as under:-
"pkSd'kh vf/kdkjh ;kauh dksjk kukns'k pksjhl xsY;k izdj.kh
gyxthZi.kk o fu"dkGthi.kk o osruHkRR;kP;k jdek jks[k Lo:ikr vnk
dj.ks izdj.kh vkjksi fl/n >kysys ulY;kus f'k{ksph f'kQkjl dsysyh ukgh-
Jh- ikVhy ;kapsoj Bsoysys vkjksi fl/n >kysys ulys rjh lnj
vkjksikaps xaHkhj Lo:i fopkjkr ?ksrk] egkjk"Vª ftYgk ifj"kn o ftYgk lsok
¼orZ.kqd½ fu;e 1967 e/khy fu;e 3 pk vkf.k egkjk"Vª ftYgk ifj"knk o
iapk;r lfeR;k ys[kk lafgrk 1968 e/khy laca/khr fu;ekapk Hkax@mYya?ku
dsY;kps fl/n >kysys vlY;keqGs lnj izdj.kka'kh laca/khr loZ ckch
dkxni=s rFkk fLFkrh fopkjkr ?ksowu egkjk"Vª ftYgk ifj"knk ftYgk lsok
¼f'kLr o vfiy½ fu;e 1964 ps fu;e 4¼1½ e/khy rjrqnhuqlkj] ßJh- jktsanz
ckcqjko ikVhy] dfu"B ys[kkf/kdkjh iapk;r lferh cksnoM ;kapsoj Bidk
Bso.;kph f'k{kkÞ vafre dj.;kar ;sr vkgs o Hkfo";kr iqUgk vls gks.kkj ukgh
;kph n{krk ?ks.ksr ;koh-Þ
7. The learned Advocate representing the Zilla Parishad
submits that the Government Resolution dated 06.06.2002 has been
repealed by a Notification dated 21.06.2021. He specifically draws
our attention to Clause 4(5) of the said notification, which reads as
under:-
ßf'kLrHkaxfo"k;d dkjokbZP;k fu"d"kkZuqlkj inksUurhpk ekuho fnukad ns.ks &
T;k 'kkldh; deZpkÚ;kfo:/n f'kLrHkaxkph dkjokbZ pkyw vlY;keqGs R;kl
inksUurh ns.;kr vkysyh ukgh vlk deZpkjh dkykarjkus f'kLrHkaxfo"k;d
dk;Zokghvarh funksZ"k eqDr >kY;kl] v'kk 'kkldh; deZpkÚ;kph izR;k{k
inksUurh >kY;koj R;kyk f'kLrHkaxfo"k;d dkjokbZeqGs Mkoy.;kr vkys
ulrs rj T;k fnukadkl R;kph fu;fer inksUurh >kyh vlrh rks fnukad
R;kP;k fu;fer inksUurhpk ekuho fnukad Eg.kwu usowu ns.;kr ;sbZy%
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ijarq T;k 'kkldh; deZpkÚ;kl tk.khoiwoZd fu.kZ; ?ksmu
f'kLrHkaxkfo"k;d dk;ZokghP;k fu.kZ;kP;k v/khu jkgwu inksUurhP;k dksV~;krhy
fjDr inkoj rkRiqjrh inksUurh ns.;kr vkysyh vlsy o vlk deZpkjh
dkykarjkus f'kLrHkaxfo"k;d dk;Zokghvarh funkZs"k eqDr >kY;kl] v'kk
'kkldh; deZpkÚ;kl f'kLrHkaxfo"k;d dkjokbZeqGs Mkoy.;kr vkys ulrs rj
T;k fnukadkl R;kph fu;fer inksUurh >kyh vlrh rks fnukad R;kP;k
inksUurhpk ekuho fnukad Eg.kwu useu
w ns.;kr ;sbZy-Þ
8. The learned Advocate further submits that, though a mere
stigma was attached to the Petitioner by the order of punishment
dated 05.02.2009, the Petitioner has not challenged the said order.
Therefore, the said order cannot be faulted. It is undisputed that the
Petitioner has not challenged the final conclusion of the employer, by
which it has concluded that though none of the charges are proved
against the Petitioner, yet, a stigma is being attached to his career.
9. There can be no debate that an employer may disagree
with the findings of the Enquiry Officer. The procedure to deal with
such a situation in the light of the settled position of law is that the
employer will issue a show cause notice to the employee setting forth
it's analysis as regards the evidence recorded against the employee in
the enquiry and draw it's conclusions as to why the Disciplinary
Authority concludes that the charges are proved and disagrees with
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the conclusions of the Enquiry Officer. The evidence recorded in the
enquiry has to be analysed by the employer and the reasons assigned
for taking a different view, have to be set out in the notice to the
charge-sheeted employee to give him an opportunity to reply to all
the reasons set out in such notice. Thereafter, if not convinced by his
reply, the employer can pass an order holding the employee guilty on
the basis of the available material.
10. In S. P. Malhotra Vs. Punjab National Bank and others,
(2013) 7 SCC 251, the Hon'ble Supreme Court concluded in
paragraph Nos. 7 and 13 to 20, as under:-
"7. The appellant challenged the said orders of punishment by filing
a Writ Petition No. 1201 of 1988 before the High Court of Punjab and
Haryana at Chandigarh. The said writ petition was contested by the
respondent Bank. The learned Single Judge allowed the said writ
petition vide judgment and order dated 20.5.2011, holding that in case
the Disciplinary Authority disagrees with the findings recorded by the
Enquiry Officer, he must record reasons for the dis-agreement and
communicate the same to the delinquent seeking his explanation and
after considering the same, the punishment could be passed. In the
instant case, as such a course had not been resorted to, the punishment
order stood vitiated.
13. In the case of ECIL Vs B. Karunakar - (1993) 4 SCC 727, only
the first issue was involved and in the facts of this case, only second
issue was involved. The second issue was examined and decided by a
three-Judge Bench of this Court in Punjab National Bank Vs. Kunj
Behari Misra (1998) 7 SCC 84, wherein the judgment of ECIL (supra)
has not only been referred to, but extensively quoted, and it has clearly
been stipulated that wherein the second issue is involved, the order of
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punishment would stand vitiated in case the reasons so recorded by the
Disciplinary Authority for dis-agreement with the Enquiry Officer had
not been supplied to the delinquent and his explanation had not been
sought. While deciding the said case, the court relied upon the earlier
judgment of this court in Institute of Chartered Accountants Vs. L. K.
Ratna - AIR 1987 SC 71.
14. Kunj Behari Misra (supra) itself was the case where the
Disciplinary Authority disagreed with the findings recorded by the
Enquiry Officer on 12.12.1983 and passed the order on 15.12.1983
imposing the punishment, and immediately thereafter, the delinquent
officers therein stood superannuated on 31.12.1983. In Kunj Behari
Misra (supra), this court held as under:
"19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation 7(2).
As a result thereof, whenever the disciplinary authority disagrees
with the enquiry authority on any article of charge, then before
it records its own findings on such charge, it must record its
tentative reasons for such disagreement and give to the
delinquent officer an opportunity to represent before it records
its findings. The report of the enquiry officer containing its
findings will have to be conveyed and the delinquent officer will
have an opportunity to persuade the disciplinary authority to
accept the favourable conclusion of the enquiry officer. The
principles of natural justice, as we have already observed,
require the authority which has to take a final decision and can
impose a penalty, to give an opportunity to the officer charged of
misconduct to file a representation before the disciplinary
authority records its findings on the charges framed against the
officer." (Emphasis added)
15. The Court further held as under:-
"21. Both the respondents superannuated on 31-12-1983. During
the pendency of these appeals, Misra died on 6-1-1995 and his
legal representatives were brought on record. More than 14
years have elapsed since the delinquent officers had
superannuated. It will, therefore, not be in the interest of justice
that at this stage the cases should be remanded to the
disciplinary authority for the start of another innings."
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16. The view taken by this Court in the aforesaid case has consistently
been approved and followed as is evident from the judgments in
Yoginath D. Bagde Vs. State of Maharashtra & Anr., AIR 1999 SC 3734;
State Bank of India & Ors. Vs. K.P. Narayanan Kutty, AIR 2003 SC 1100;
J.A. Naiksatam Vs. Prothonotary and Senior Master, HighCourt of
Bombay & Ors., AIR 2005 SC 1218; P.D. Agrawal Vs. State Bank of
India & Ors., AIR 2006 SC 2064; and Ranjit Singh Vs. Union of India &
Ors., AIR 2006 SC 3685.
17. In Canara Bank & Ors. Vs. Shri Debasis Das & Ors., AIR 2003 SC
2041, this Court explained the ratio of the judgment in Kunj Behari
Misra (supra), observing that it was a case where the disciplinary
authority differed from the view of the Inquiry Officer.
"26. .... In that context, it was held that denial of opportunity
of hearing was per se violative of the principles of natural
justice." (Debasis Das case, SCC p. 578, para 26)
18. In fact, not furnishing the copy of the recorded reasons for
disagreement from the enquiry report itself causes the prejudice to the
delinquent and therefore, it has to be understood in an entirely
different context than that of the issue involved in ECIL (supra).
19. The learned Single Judge has concluded the case observing as
under:
"The whole process that resulted in dismissal of the petitioner is
flawed from his inception and the order of dismissal cannot be
sustained. I am examining this case after nearly 23 years after its
institution and the petitioner has also attained the age of
superannuation. The issue of reinstatement or giving him the
benefit of his wages for during the time when he did not serve
will not be appropriate. The impugned orders of dismissal are set
aside and the petitioner shall be taken to have retired on the
date when he would have superannuated and all the terminal
benefits shall be worked out and paid to him in 12 weeks on
such basis. There shall be, however, no direction for payment of
any salary for the period when he did not work."
20. As the case is squarely covered by the judgment of this court in Kunj
Behari Misra (supra), we do not see any reason to approve the
impugned judgment rendered by the Division Bench. Thus, in view of
the above, the appeal is allowed. The judgment and order of the
Division Bench is set aside and that of the learned Single Judge is
restored. No costs."
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11. In Anand Kumar Singh Vs. U. P. State Road Transport
Corporation and others - 2009 III CLR 490, the Allahabad High
Court held in paragraph No.9, as under:-
"9. From the pleadings and record available before this Court it
is evident that the inquiry officer found the petitioner not guilty of
the charges levelled against him. It is well settled that the
disciplinary authority is not bound to accept the findings of inquiry
officer and can record his own opinion different from what has
been recorded by the inquiry officer after considering the report of
the inquiry officer and other material on record. However, before
acting upon such findings which are different than what was
recorded by the inquiry officer, it is incumbent upon the
disciplinary authority to inform such findings of disagreement to
the employee concerned and give him opportunity to make his
representation thereagainst. If the inquiry officer forms an opinion
which is in favour of the employee concerned and the disciplinary
authority forms opinion different from such favourable report, he
has to inform the delinquent employee about his own findings
otherwise it would amount to acting upon a material which was
never disclosed to the delinquent employee. The findings of
disagreement consists a material which have arrived subsequently
i.e. after the inquiry by inquiring authority is over and, therefore, it is
incumbent upon him to communicate the said findings to the
employee concerned. This aspect was initially considered by the
Apex Court in the case of Punjab National Bank Vs. Kunj Behari
Misra, 1998 (7) SCC 84 and following the Constitution Bench
judgement in Managing Director, ECIL, Hyderabad Vs. B.
Karunakar, 1993 (4) SCC 727 it was held that when the inquiry
officer holds the charges proved then that report has to be given to
the delinquent officer who can make a representation before the
disciplinary authority takes further action which may be prejudicial
to the delinquent officer. When, like in the present case, the
inquiry report is in favour of delinquent officer but the disciplinary
authority proposes to differ with such conclusions then that
authority which is deciding against the delinquent officer must give
him an opportunity of being heard for otherwise he could be
condemned unheard. In departmental proceedings what is of
ultimate importance is the findings of the disciplinary authority
and, therefore, whenever the disciplinary authority disagrees with
the inquiry authority on any article of charge, it must record its
tentative reasons for such disagreement and give to the delinquent
officer an opportunity to represent before it records its final
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findings. The report of the inquiry officer containing its findings of
disagreement will have to be conveyed and the delinquent officer
will have an opportunity to persuade the disciplinary authority to
accept the favourable conclusion of the inquiry officer and not to
proceed with his tentative findings which are contrary from the
report of the inquiry officer. It was held by the three Judge Bench
of the Apex Court in Kunj Behari Misra (supra) that non
compliance of the above would vitiate the proceedings. This has
been followed consistently by the Apex Court in Yoginath D. Bagde Vs.
State of Maharashtra & another, AIR 1999 SC 3734;
SBI & others Vs. Arvind K. Shukla, JT 2001 (4) SC 415; State
Bank of India & others Vs. K.P. Narayanan Kutty, 2003 (2) SCC
449; and Ranjit Singh Vs. Union of India and others, 2006(4)
SCC 153."
12. The law is thus settled that if the disciplinary authority
disagrees with the findings recorded by the Enquiry Officer, it is
bound to record reasons for disagreeing with the findings of the
Enquiry Officer and furnish such reasons to the delinquent. Non
furnishing of a copy of the recorded reasons for disagreeing with the
report of the Enquiry Officer, prejudices the delinquent and the
consequent order of punishment stands vitiated. The case for the
management would be worsened if the disciplinary authority does not
record specific reasons for disagreeing with the findings of the
Enquiry Officer and issues the order of punishment, as has been done
in the case before us, no matter however minor the punishment could
be. Such action of the employer would be unsustainable in law.
13. Considering the case before us, it is apparent and beyond
debate that the employer could not have come to a conclusion of
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attaching a stigma to the Petitioner without following the due
procedure. Merely tendering a copy of the Enquiry Officer's report to
the Petitioner by stating that he should not have made one payment
in cash, is of no consequence because the Enquiry Officer has already
exonerated the Petitioner by concluding that he is not guilty of any
charge. We also find one statement in the impugned order of
punishment, wherein, the Chief Executive Officer concedes that none
of the charges are proved against the Petitioner and he is partly
agreeing with the same.
14. The learned advocate for the Zilla Parishad submits that
the enquiry officer has said in his report that the Petitioner should not
have made a payment in cash. We do not find that this contention
needs any consideration for the fact that the enquiry officer has not
declared him guilty of any charge that was specifically levelled upon
him. A passing reference to an incident without any guilty finding/
conclusion, would not support the stand of the employer, if the
procedure expected to be followed, has been ignored. We, therefore,
conclude that the impugned order of attaching a stigma to the career
of the Petitioner, is flawed and cannot be sustained.
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15. The learned Advocate for the Zilla Parishad contends that
as the Petitioner had not challenged the order of attaching a blot to
his career, this Court should not entertain this Petition. We find that,
in Radha Krishna Industries Vs. State of Himachal Pradesh and others
(2021) 6 SCC 771, on the issue of entertaining a Writ Petition to
protect the right of an individual, the Hon'ble Supreme Court held in
paragraph Nos. 27 and 28, as under:-
"27. The principles of law which emerge are that:
27.1. The Power under Article 226 of the Constitution to issue writs
can be exercised not only for the enforcement of fundamental rights,
but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ
petition. One of the restrictions placed on the power of the High Court
is where an effective alternate remedy is available to the aggrieved
person.
27.3. Exceptions to the rule of alternate remedy arise where: (a) the
writ petition has been filed for the enforcement of a fundamental right
protected by Part III of the Constitution; (b) there has been a violation
of the principles of natural justice; (c) the order or proceedings are
wholly without jurisdiction; or (d) the vires of a legislation is
challenged.
27.4. An alternate remedy by itself does not divest the High Court of
its powers under Article 226 of the Constitution in an appropriate case
though ordinarily, a writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or liability, resort must be
had to that particular statutory remedy before invoking the
discretionary remedy under Article 226 of the Constitution. This rule of
exhaustion of statutory remedies is a rule of policy, convenience and
discretion.
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27.6. In cases where there are disputed questions of fact, the High
Court may decide to decline jurisdiction in a writ petition. However, if
the High Court is objectively of the view that the nature of the
controversy requires the exercise of its writ jurisdiction, such a view
would not readily he interfered with.
28. These principles have been consistently upheld by this Court in
Chand Ratan V. Durga Prasad - (2003) 5 SCC 399, Babubhai Muljibhai
Patel V. Nandlal Khodidas Barot - (1974) 2 SCC 706 and Rajasthan SEB
V. Union of India - (2008) 5 SCC 632, among other decisions. "
16. In Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-
Cum-Assessing Authority and others, 2023 SCC OnLine SC 95 , the
Hon'ble Supreme Court observed in paragraph Nos. 4 to 8, as under:-
"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
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
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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. 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.
5. A little after the dawn of the Constitution, a Constitution Bench of
this Court in its decision reported in 1958 SCR 595 (State of Uttar
Pradesh Vs. Mohd. Nooh) had the occasion to observe as follows:
"10. 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 Edn., Vol. 11, 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
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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. ***"
6. At the end of the last century, this Court in paragraph 15 of the its
decision reported in (1998) 8 SCC 1 (Whirlpool Corporation Vs.
Registrar of Trade Marks, Mumbai and Others) carved out the
exceptions on the existence whereof a Writ Court would be justified in
entertaining a writ petition despite the party approaching it not having
availed the alternative remedy provided by the statute. The same read
as under:
(i) where the writ petition seeks enforcement of any of the
fundamental rights;
(ii) where there is violation of principles of natural justice;
(iii) where the order or the proceedings are wholly without
jurisdiction; or
(iv) where the vires of an Act is challenged.
7. Not too long ago, this Court in its decision reported in 2021 SCC
OnLine SC 884 (Assistant Commissioner of State Tax vs. M/s.
Commercial Steel Limited) has reiterated the same principles in
paragraph 11.
8. That apart, we may also usefully refer to the decisions of this
Court reported in (1977) 2 SCC 724 (State of Uttar Pradesh & ors. vs.
Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India Vs.
State of Haryana). What appears on a plain reading of the former
decision is that whether a certain item falls within an entry in a sales
tax statute, raises a pure question of law and if investigation into facts
is unnecessary, the high court could entertain a writ petition in its
discretion even though the alternative remedy was not availed of; and,
unless exercise of discretion is shown to be unreasonable or perverse,
this Court would not interfere. In the latter decision, this Court found
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the issue raised by the appellant to be pristinely legal requiring
determination by the high court without putting the appellant through
the mill of statutory appeals in the hierarchy. What follows from the
said decisions is that where the controversy is a purely legal one and it
does not involve disputed questions of fact but only questions of law,
then it should be decided by the high court instead of dismissing the
writ petition on the ground of an alternative remedy being available. "
17. In these circumstances, we are of the view that our extra
ordinary Writ jurisdiction under Article 226 of the Constitution of
India, needs to be exercised in this matter, when a non-est order of
attaching a blot to the service of the Petitioner has been passed.
Neither has the disciplinary authority of the Zilla Parishad followed
the due procedure in concluding, with reasons, as to why it disagrees
with the findings of the Enquiry Officer, nor was the Petitioner given
any opportunity to show cause by the employer while concluding that
though the charges are not proved against him, a stigma needs to be
attached to his career. The cause of action raised by the Petitioner
before us, turns on the said flawed action of the employer.
18. Therefore, we are of the view that the ends of justice
would be met by allowing this Petition, ignoring the view of the
employer that a stigma be attached to the service of the Petitioner,
which is without following the due procedure laid down in law.
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19. In view of the above, this Petition is allowed. The order
of the Divisional Commissioner dated 19.08.2022 is quashed and set
aside. The Petitioner shall be granted the deemed date of promotion
with effect from 30.08.2007. Consequential service benefits, including
monetary benefits/gratuity/pension etc., will be calculated by the
Competent Authorities within a period of 60 days. The arrears of
retiral benefits, including difference in the pension amount, if any,
shall be paid to the Petitioner within 45 days after such calculations
are carried out.
20. Rule is made absolute in the above terms.
21. No order as to costs.
[ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]
SMS
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