D.P.S. Chauhan, J.@mdashThe Petitioner, a dismissed employee, serving in the Food Corporation of India, (for brevity, hereinafter referred to as ''the Corporation'') established under the Food Corporation of India Act, 1965, as Assistant Manager, has taken shelter of this Court under Article 226 of the Constitution of India impeaching Order No 4 (13/Vig./NZ/88/UP Vol. II dated 29-9-1988 passed by the Zonal Manager (North) and No. Vig. 4 (23)/86 dated 16-3-1988, seeking relief, in main, for issuance of a writ in the nature of certiorari quashing the same.
2. All the Respondents, except Respondent No. 4, Sri B. P. Goyal, Deputy Manager (Enquiry), who was arrayed by name in his personal capacity owing to allegations of mala fide, have been served and are represented by Sri N. P. Singh. The name of the Respondent no 4, with the leave of the Court, has been deleted, and as such all the parties have been served and are duly represented, and on their behalf counter and rejoinder affidavits have been exchanged.
3. Sri V.K.S. Chaudhary, Senior Advocate, appearing for the Petitioner succeeded in pursuading the Court for deciding the petition itself finally as the case was ripe and all the parties were represented. I considered it proper to accept the prayer so made by the learned Counsel for the Petitioner for deciding the case finally in exercise of power under the second proviso to Rule 2 of of Chapter XXII of the Rules of Court, 1952. Learned Counsel for the Respondents submitted that though he has no objection for deciding the case finally but he may be allowed to address the Court on the question of maintainability of the petition. His prayer was also accepted.
4. So far as the question of applicability of the Regulations, known as the Food Corporation of India (Staff) Regulations, 1971 (for brevity, hereinafter referred to as ''the Regulations'') is concerned, the parties were not at variance.
5. First of all, I propose to deal with the preliminary objection, as stated below, raised by the learned Counsel for the Respondents:
The writ petition at the instance of the Petitioner on account of the fact of non-availing of the remedy available to him under the Regulations by way of review, which is an efficacious alternative remedy, is not maintainable.
6. Regulation 74 of the Regulations, which is extracted below, is the sheet anchor of the preliminary objection:
74 Review:
(1) Notwithstanding anything contained in these regulations, the Board, may, at any time either on its own motion or otherwise, review any call for the records of any inquiry and review any order made under these regulations, and
(a) confirm, modify or set aside the order, or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit;
Provided that no order imposing or enhancing any penalty shall be made by the reviewing authority unless the employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) to (ix) of Regulation 54 or to enhance the penalty imposed by the order sought to be viewed to any of the penalties specified in those clauses; no such penalty shall be imposed except after an inquiry in the manner laid down in Regulation 58.
(Emphasis supplied)
(2) No proceeding for review shall be commenced until after
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for review shall be dealt with in the same manner as if it where an appeal under these regulations.
(4) Powers similar to those specified in Clause (1) above may be exercised by the Chairman, Managing Director, Zonal Manager and Regional Manager (Additional/Joint Manager) in respect of orders passed by authorities subordinate to them,
Clause (b) of the aforesaid Regulations empowered the Board of Directors of the Corporation for confirming, reducing or enhancing or setting aside the penalty imposed by the order, but the question for consideration is whether such a power conferred on the Board of Directors can be said to be an alternative remedy so to disentitle the Petitioner to seek redress under extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
7. Learned Counsel for the Petitioner countered this objection by submitting that the alleged remedy by way of review under Regulation 74 of the Regulations cannot be held to be a remedy so to disentitle the Petitioner to seek redress under extraordinary forum of redress in this Court under Article 226 of the Constitution for the reason, firstly, there is no prohibition, and, secondly, the impeached orders have been passed in violation of the principle of natural justice. By the Constitution (Forty Second Amendment) Act, 1976, Article 226 was amended. Clause (3) of the said Article, as amended, is relevant, which is extracted below:
(3) No petition for redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (i) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.
It ridered the power of the High Court under Article 226 of the Constitution of India in the cases where other remedy for the redress was available under any other law.
8. The Constitution (Forty Four Amendment) Act, 1978, lifted the rider on the power of the High Court as imposed by the Constitution (Forty Second Amendment) Act, 1976. Thus, the power of the High Court under Article 226 of the Constitution of India is constitutionally unfettered. Now the position reverted back, as it was prior to the Constitution (Forty Second Amendment) Act, 1976. The question of availing of alternative remedy before invoking the extraordinary jurisdiction of this Court is now only a rule of policy, convenience and discretion depending upon the variety of factors, which cannot be catalouged. The jurisdiction of this Court is discretionary and the court can refuse to exercise its discretionary jurisdiction upon consideration germane to the fact and circumstance of each individual case. Some such circumstances may be that the matter is of such a nature involving probe into disputed questions of fact, or the conduct of the Petitioner is such that he has acquiesced in the order under challenge, or he has been negligent in approaching this Court or he has been negligent in availing the remedy available to him under the law applicable to him, etc, but where complaint is of the nature, such as violation of the principles of natural justice affecting the civil rights of the person, or the action complained of is procedurally ultra vires, or there is infringement of fundamental right guaranteed under Chapter HI of the Constitution, or the act complained of is beyond the scope of the concerned authority, or the remedy has been lost or barred for the fault other than that of the Petitioner, this Court, in its wisdom, may choose to interfere with under its extraordinary jurisdiction having regard to the situation of the case.
9. Learned Counsel for the Petitioner placed reliance on the following passage from the case of the Supreme Court, namely
May be, there was considerable substance in this view under Article 226 of the Constitution Amendment Act. But Article 226 has undergone a further amendment. As the Article now stands, it would be a serious question whether right of review a proceeding by itself provide such alternative efficacious remedy to disentile a Petitioner to move the High Court under Article 226, we think it would be rather harsh
(emphasis supplied).
10. Learned Counsel for the Respondents tried to distinguish the case of V. Vellaswamy (supra) by saying that there was a marked difference in the provision regarding review, which was for consideration before the Supreme Court and the provision which is concerned in the present petition. To appreciate the argument, it would be apt to have language of both the provisions. Regulation 74 of the Regulations has already been extracted above. In V. Vellaswamy''s case (supra, Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeals) Rules, 1966, which is extracted below, was considered:
15-A. Nothing contained in these rules shall be deemed to preclude an authority higher than the appellate authority from reviewing any case either on its initiative or in representation from a member of the service against the order of the punished authority or appellate authority or the order of an authority but lower than itself and passing such order as it thinks proper. For this purpose, it may call for the records at any stage notwithstanding that any representation already made to a subordinate authority for reviewing a case has not been gone into or disposed of;
Provided, however, that no application for review shall be preferred more than once in respect of the same order:
Provided further, that members of the constabulary (Police Constables and Head Constables) shall be eligible to make one representation to the Government against orders of dismissal after exhaustion of the right of appeal.
(emphasis supplied).
11. The only distinction, as pointed out by the learned Counsel for the Respondents, is that Clause (3) or Regulation 74 of the Regulations provided that the application for review shall be dealt with in the same manner as if it were in appeal under the Regulations. On this basis that the argument was built up that the Supreme Court case is not attracted and the remedy of review may be treated as alternative efficacious remedy on which ground, this Court may not exercise its discretionary jurisdiction.
(i) The argument has no substance. The matter as to how the review shall be dealt with by the concerned authority or the Board of Directors is only a guidance to them and regulates the procedure, but does not give any right to the delinquent person to claim review as of right. It is only a suo motu power exercisable by the authority at its pleasure to meet the emergent and extraordinary situation. The application for review under Regulation 74 of Regulations could be made by any person, nor necessarily by the delinquent employee, and the entire purpose of the application is to set the machinery in motion but in the case of Regulation 15-A (supra) review was restricted. It is an exraordinary power conferred on the Board of Directors to meet the extraordinary situations.
12. In view of what has been stated above, I am of the view that the power of review under Regulation 74 of the Regulations is not such an efficacious remedy, which may disentitle the Petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution.
13. Learned Counsel for the Petitioner, fairly, circumscribed the limit for himself that he would not enter into the controversy inviting decision on disputed questions of fact, but will keep himself confined to the aspect of violation of the principles of natural justice, which ultimately resulted in affecting the right of livelihood of the Petitioner in an arbitrary manner leading to violation of not only Article 21 of the Constitution, but also Article 14 of the Constitution. Learned Counsel for the Respondents, fairly, reacted that he has no objection, even otherwise, if the Petitioner keeps himself confined to the limit circumscribed by him.
14. The brief facts of the case are:
(a) The Petitioner who was a Godown Clerk in the Ministry of Food and Agriculture, Government of India, was absorbed in the Corporation, and, at the relevant time, he was posted as Assistant Manager (Depot) at Air Strip Latitpur, where his bad star showed their effect and landed him in trouble. He was suspended on 2/5-4-1968 in contemplation of enquiry against him and was served with a charge sheet on 3-3-1987 by the Regional Manager of the Corporation in connection with the disciplinary proceedings against him. The Regional Manager was the disciplinary authority. He appointed the Senior General Manager as the Inquiry Officer on 23-5-1987, but shortly thereafter, he was replaced by one B. P. Goyal, Deputy Manager (General), who conducted the enquiry without allowing the Petitioner to inspect the relevant papers, inspire of his asking therefor, and not only this, the relevant record pertaining to the charges levelled against him and which were material for establishing his innocence, were neither shown to him nor made available, as those documents were with the Vigilance Department and inspite of being summoned by the Inquiry Officer, they did not come even before the Inquiry Officer. On 19-10-1987, the Petitioner submitted a list of documents, which were necessary in connection with the enquiry against him, but the documents, as mentioned therein, were not made available to the Petitioner. The enquiry report was submitted by the Inquiry Officer to the punishing authority with the following recommendations:
In the preceding section the entire documentary and oral evidence has been examined and conclusion reached that although there were lapses on the part of suppervisory Officer also but with regard to charges under Article-I against the CO without repeating facts and analysis are proved.
Either the disciplinary authority or even the punishing authority did not supply a copy of the enquiry report to the Petitioner, whereupon the punishing authority passed an order of dismissal of the Petitioner from service A copy of the enquiry report was sent to the Petitioner alongwith the order of dismissal as conveyed to him. The Petitioner there against preferred an appeal as provided under Regulation 67 of the Regulations, which was dismissed on 18-3-1984, and thereafter the Petitioner approached this Court by means of the present writ petition. The aforesaid two orders are the subject matter of challenge in the present writ petition.
15. Learned Counsel for the Petitioner raised the following points:
(i) There has been violation of the principles of natural justice. In the case of the Petitioner, the enquiry officer and punishing authority were two different persons and before inflicting the punishment of dismissal, the Petitioner was not supplied a copy of the enquiry report.
(ii) The enquiry is based on extraneous material, such as Maithy''s report which, though finds reference in the charge sheet, was not brought on record of the disciplinary proceedings and copy of which was not shown to the Petitioner, and the same was neither filed before the appellate authority nor the same has been filed before this Court;
(iii) Copies of the relevant documents and material, as asked for by the Petitioner, which were very material for the defence purpose, were not supplied to the Petitioner by the Inquiry Officer or even by the punishing authority, who acted in a manner violative of Article 14 of the Constitution.
16. Learned Counsel for the Petitioner laid emphasis on his first point and submitted that the Petitioner was not supplied the copy of the enquiry report either by the inquiry Officer or by the punishing authority before awarding punishment. So far as the question of non supply of the copy of enquiry report is concerned, the parties are not at variance.
17. Learned Counsel for the Petitioner, in support of his submission, placed reliance on the following passage from the case of
We make it clear that whereever there has been an Inquiry Officer and he has submitted a report to the disciplinary authority at the conclusion of the inquiry of the charges holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.
18. Learned Counsel for the Petitioner also placed reliance on a Division Bench decision of this Court in the case of Sarfaraz Ali v. U.P. State Road Transport Corporation 1991 (9) LCD 473.
19. The case of Mohd. Ramzan Khan (supra) was based on Article 311 of the Constitution. Article 311(2) as it existed before the Constitution (Forty Second Amendment) Act, is as quoted below:
No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." Article 311(2), as it became after the Constitution (Forty Second Amendment) Act, 1976, is as quoted below:
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduce during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed.
(emphasis supplied).
20. Regulation 59 (4) of the Regulations which is required to be compared with the provio to Clause (2) of Article 311 of the Constitution, is as extracted below:
(4) If the disciplinary authority having regard to the findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clause (v) to (ix) of Regulation 54 should be imposed on the Corporation employee, it shall make an order imposing such penalty and it shall not be necessary to give the Corporation EMPLOYEE ANY OPPORTUNITY OF MAKING representation on the penalty proposed to be imposed.
21. The Supreme Court while declaring the law considered Clause (2) of Article 311, as amended by the Constitution (Forty Second Amendment) Act. 1976, and the proviso thereto, which provided that it shall not be necessary to give such person any opportunity of making a representation on the penalty proposed The provisions of Clause (4) of Regulation 59 of the Regulations is likewise and it says that it shall not be necessary to give the Corporation employee any opportunity of making representation on the penalty proposed to be imposed. So, therefore, so far as the provisions are concerned, there is no marked distinction and the law declared by the Supreme Court is attracted in the present case.
22. On the question, the Supreme Court in Mohd. Ramzan Khan''s case (supra) expressed the facts as under;-
There is a charge and a denial followed by an inquiry at which evidence is led and assessment of the material before conclusion is reached. These facets do make the matter quasi-judicial and attract the principles of natural justice.
While approving the case of
As this Court rightly pointed out in
The concept of natural justice has existed for many centuries and it has crystallised into two rules: that no man should suffer without first being given a fair hearing. They (the Courts) have been developing and extending the principles of natural justice so administrative procedure to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly.
23. Learned Counsel for the Respondents tried to distinguish the case of Mohd. Ramzan Khan (supra) by inviting the attention of this Court to para 17, where following observation was made:
...but this shall have prospective application and no punishment imposed shall be open to challenge on this ground.
The aforesaid observation of the Supreme Court do not go to the extent of depriving a person his valuable right of continuing the proceedings in Court that the principles of natural justice which is a law declared by the Supreme Court and also enshrined in Article 14 of the Constitution has been violated. The only object, as appears, is that the closed chapter may not be re - opened If a person has not acquiesced in the order impugned, or the Court has given a verdict upholding his dismissal, or the person has lost his right to approach the Court, in such events, the said decision would not be applicable and the prospectivity in considering these aspects that the controversies which have been buried, may not come out of the grave.
24 The Division Bench of this Court in Safaraz Ali''s case (supra) considered this aspect of the matter and observed as under:
By making its judgment prospective the Supreme Court only intended to say that all other cases in which the view was expressed that non-supply of enquiry findings would not vitiate the order of punishment would not again be open to scrutiny.
It further said that:
If, therefore, the Supreme Court said that its judgment in Ramzan Khan''s case (supra) will be prospective in operation and not retrospective, it did not mean to say that all pending cases would continue to be decided in accordance with the old law which has been found by it to be not correctly laid down As observed earlier, all that the Supreme Court meant to say was that all other cases in which the orders of punishment have been upheld, notwithstanding the point raised that the copy of the enquiry report had not been supplied to the employee, would not be open to a fresh judicial scrutiny in view of the law laid down in Ramzan Khan''s case.
25. The submission, as advanced by the learned Counsel for the Respondents, has, thus, no substance and is rejected.
26. Since the first point goes in favour of the Petitioner, it is not necessary to dilate on the other points as raised by the learned Counsel for the Petitioner.
27. On the basis of the conclusion arrived at, the writ petition is allowed and the impugned orders dated 29-9-5988 and 16-3-1988 are set aside, and the Petitioner shall be treated as re-instated. It is clarified that this decision would not preclude the disciplinary authority from continuing the proceedings in accordance with law However, in case the disciplinary authority chooses to proceed with the proceedings, the Petitioner shall not be treated under suspension and the Petitioner shall be paid his salary regularly month by month when the same falls due. The past salary from the date of suspension till the reinstatement of the Petitioner, excluding the subsistence allowance paid, if any, shall be paid to him within a period of two months from the date of production of a certified copy of this order before the concerned authority. The parties shall bear their own costs.
