R.B. Misra, J.@mdashIn this writ petition prayer has been made to quash the order dated 31.10.95 (Annexure-6 to the writ petition) passed by Senior Divisional Security Commissioner, Railway Protection Force, Northern Railway, Allahabad and order dated 2.2.98 (Annexure-8 to the writ petition) passed by Chief Security Commissioner, Railway Protection Force, Northern Railway, Headquarters Office, Baroda House, New Delhi and further prayer has been made for commanding the respondents to pay the petitioner his salary and other emoluments with arrears.
2. Heard Sri V.K. Singh and Sri G.K. Singh learned Counsel for the petitioner as well as Sri Govind Saran learned Counsel for the respondents.
3. As contended on behalf of the petitioner, the petitioner was appointed as a Constable in Railway Protection Force on 5.9,1977 and was transferred to Electric Loco Shed, Ghaziabad from Kanpur on 30.7.1995 and the petitioner was given ten days joining time till 8.8.1995. It appears that on 9.8.1995 the petitioner had fallen ill and was under treatment of Senior Divisional Medical Officer, Eastern Railway Hospital, Mughalsarai for a period of four weeks. Sickness certificate was also issued by the Senior Divisional Medical Officer, however when the condition of the petitioner did not improve he again went under treatment from 5.10.1995 to 29.1.1996 for which sickness certificate was issued by Senior Divisional Medical Officer, Northern Railway, Rai Bareli. Thereafter also he was under treatment from 30.1.1996 to 3.2.1996 and fitness certificate was issued by Senior Divisional Medical Officer, Northern Railway, Ghaziabad. The petitioner when reported for duty on 3.2.1996, he was informed about the dismissal order already passed on 31.10.1995. The petitioner preferred an appeal before Chief Security Commissioner which too was dismissed on 2.2.1998. These two orders dated 31.10.95 and 2.2.1998 are under challenge in the present writ petition.
4. According to the petitioner the points for consideration are :
(i) The petitioner was not associated with any inquiry by the respondents. No notice or opportunity was even afforded to the petitioner nor petitioner was informed about any inquiry being conducted by the respondents.
(ii) The petitioner has submitted sickness certificate issued by the Doctors of the Railway Department.
(iii) Respondents have not taken any steps to inform the petitioner about any inquiry'' being conducted against him (as per Paras 16 of the writ petition and as replied in Paragraph 30 of the counter-affidavit.
(iv) The copy of the inquiry report was also not given to the petitioner before passing the order of dismissal (as averred in Paragraph 25 of the writ petition and replied in Paragraph 36 of the counter-affidavit.
(v) The order of termination on the charges of over staying is highly disproportionate.
(vi) The respondents have not taken any steps to serve the show cause notice, charge-sheet, inquiry report as well as the order of dismissal on the petitioner at his permanent home address as averred in Para 31 of the writ petition and replied in Paragraph 42 of the counter-affidavit.
(vii) The Rule 156 of the R.P.F. Rule, 1987 provides for imposition for punishment of dismissal only on certain conditions. None of the conditions provide the order of dismissal can be passed on account of over staying the Rule 156 is quoted as below :
"The dismissal of removal from service of any member of the Force shall be in the following cases, namely :-
(a) Dismissal.-(i) conviction by a Criminal Court;
(ii) serious misconduct or indulging in committing or attempting or abetting offence against Railway property;
(iii) discreditable conduct affecting the image and reputation of force;
(iv) neglect of duty resulting or likely to result in loss to the Railway or damage to the lives of persons using the Railways;
(v) insolvency or habitual indebtedness; and
(vi) obtaining employment by concealment of his antecedents which would ordinarily debar him from such employment."
On the other hand learned Counsel for the respondents in reference to the assertions made in the counter-affidavit has submitted as below :
(a) The writ petition is liable to be dismissed on the ground that the petitioner has got alternate remedy under Rule 219 of R.P.F. Rules, 1987. The petitioner has not filed revision. Under Rule 219 R.P.F. Rules, 1987 before the Revisional Authority against the order dated 2.2.1998 passed by the Appellate Authority.
(b) The petitioner is a member of Railway Protection Force which is a Discipline/Armed Force of Union of India. He absented himself without any authority for a long period which is against the conduct of the disciplined Armed Force which regards to maintain discipline. But the petitioner has failed to do so by absenting himself for long period without any authority.
(c) The petitioner was transferred from Kanpur Juhi to Electric Loco Shed, Ghaziabad due to his nefarious activities and close links with local criminals of Kanpur. He was spared on 10 days joining leave w.e.f, 30.7.1995 to 8.8.1995 and was due to report for duty at Electric Loco Shed, Ghaizabad on 9.8.1995, but he failed and absented from duty unauthorisedly and without information to his Controlling Officers.
(d) The petitioner''s sickness certificated dated 9.8.1995 of Senior Divisional Medical Officer (E.R.), Mugal Sarai was received in the Officer of Sub-Inspector R.P.F./Electric Loco Shed, Ghaziabad on 19.8.1995. The petitioner was issued charge-sheet dated 14.9.95 and Sri Syed Noor Ahmad, Inspector/RPF was Appointed Enquiry'' Officer to conduct enquiry against the petitioner. The Enquiry Officer found in his Enquiry Report the charges against the petitioner proved. The copy of the enquiry was supplied on 12.10.1995 to the petitioner through special messenger with an indication to conduct the defence within 15 days but the petitioner did not accept the notice nor submitted any representation for his defence. Taking into the facts and circumstances, the punishment order was passed and the appeal too was dismissed by the Chief Security Commissioner, however, the petitioner did not avail the remedy under Rule 219 of R.P.F. Rules, 1987. According to the respondents Rule 272 of R.P.F. Rules, 1987 contemplates that in the said rules no member of force shall be taken on sick list by any of the Railway Officers unless such member comes with a written reference known as sick memo from his Controlling Officer. After completing every sickness period the petitioner did not report to the duty. Even on 17.9.1995 when Head Constable Gopi Ram of Electric Loco Shed, Ghaziabad was directed to serve the charge-sheet to the petitioner but he refused to acknowledge the charge-sheet in presence of witnesses. On 18.9.1995 when Sri Gopi Ram Sharma, Head Constable went to the petitioner along with other staff for serving the charge-sheet, the petitioner again refused to acknowledge the charge-sheet. In these circumstances, the charge-sheet was pasted on the door of his Railway Quarter No. 61/A Tejab Mills Colony, Kanpur in his presence.
5. The copy of the Enquiry Report was sent to the petitioner on 12.10.1995 and also on 29.10.1995 through Head Constable Sone Lal, Constable Hari Om Sharma and Constable Audhesh Kumar Mishra who visited the Railway Quarter No. 61/A, Tejab Mills Colony, Kanpur of the petitioner in order to serve the Enquiry Report where the petitioner refused to acknowledge the notice and to receive the Enquiry Report. Similarly the penalty notice dated 31.10.1995 and 3.11.1995 was also sent though Head Constable Gopi Ram Sharma but despite the efforts made the notice was not received, therefore, the same was pasted at the door of the residence of the petitioner.
6. Learned Counsel for the respondents has placed reliance on the order dated 1,7.2002 passed by this Court in Writ Petition No. 22507 of 2002, Digamber Singh v. The Chief Secretary, N.R., New Delhi and Ors., where the writ petition was dismissed against the punishment awarded to the writ petitioner as the revision under Rule 219 of the R.P.F. Rules, 1957 was not availed by the writ petitioner and the writ petition was dismissed on the ground of alternative remedy.
7. The Supreme Court in the case of
"The High Court simply said that the appellant had a statutory alternative remedy and the appellant had to avail that statutory remedy instead of filing writ petition. Accordingly, the High Court dismissed the writ petition. The appellant instead of challenging the order of the Tribunal by availing the statutory alternative remedy has filed this appeal by special leave challenging, the order of the High Court. We are of the view that the High Court right in dismissing the writ petition directing the appellant to avail the statutory alternative remedy."
8. In the case of
"If the petitioners arc dissatisfied with the decision in appeal they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court u/s 24 of the Act...............Act provides for a complete measure to challenge an order of assessment ..........by mode prescribed by the Act and not by a petition under Article 226 of the Constitution."
9. The decision has been followed in
"In
As mentioned earlier, reference u/s 256 of the Income Tax Act is maintainable against the order of the Income Tax Appellate Tribunal, like a Reference against the order of the CEGAT u/s 35-H of the Act.
10. The Supreme Court has depicted the practice of filing a writ petition under Article 226 of the Constitution instead of filing a reference u/s 256 of the Income Tax Act in the case of
"5. Instead of following the procedure prescribed by the Act by way of a reference u/s 256 of the Income Tax Act, the respondent chose to file three writ petitions in the Allahabad High Court challenging the orders of the Tribunal in respect to the Assessment years 1977-78 and 1980-81 and order of the Assessing Authority for assessment year 1984-85 which had been made by it. These writ petitions were entertained by the High Court which allowed the same by coming to the conclusion that the respondent was a local authority and therefore, its income was exempt from tax."
Taking note of the aforesaid fact in Para 5 quoted above, the Supreme Court has observed as follows in Para 14 at Pages 539 and 540 :-
"Before concluding, we would like to observe that the High Court ought not to have entertained the writ petitions when adequate alternative remedy was available to the respondent........We, however, emphasise that the petitioners should not normally short-circuit the procedure provided by the taxing statute and seek redress by filing a petition under Article 226 of the Constitution of India."
11. Admittedly the petitioners have filed recently Excise Reference Application No. 13 of 2002 on 16.5.2002 u/s 35-H of the Act, hence he is pursuing a parallel proceedings in respect of the same subject-matter arising out of the same order of the Tribunal in view of the judgment of the Supreme Court in the case of
".....................the appellant has filed a writ, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion the appellant cannot pursue two parallel remedies in respect of the same matter at the same time."
12. In the case of C.L. Jain Woolen Mills (1996) 84 ELT 17, the Supreme Court has observed as follows :
"While we agree with Mr. A. Subba Rao, the learned Counsel for the petitioner, that when the appeal before the Tribunal, preferred by the assessce himself, was pending, the High Court ought not to have interfered in the matter by way of a writ petition, in the facts and circumstances of the case, we are not inclined to interfere in the matter."
13. A Division Bench of the Andhra Pradesh High Court in the case of
14. A Constitution Bench of the Supreme Court in
15. Similar view has been reiterated in
16. In C.A. Ibraham v. I.T.O. AIR 1961 and H.B. Gandhi v. M/s. Gopinath and Sons 1992 (Suppl.) 2 SCC 312, the Supreme Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
17. The Constitution Bench of the Supreme Court in
18.''In
19. While deciding the said case, the Supreme Court placed reliance on large number of judgments, particularly New Water Works Co. v. Hawkes Ford (1859) 6 CBNS 336; Neville v. London Express Newspapers Ltd 1919 AC 368, the Attorney General of Trinidad and Taboco v. Gordon Grant and Co. 1935 ApCas 532; and Secretary of State v. Mask and Co. AIR 1949 PC 105, wherein it had consistently been emphasised that the remedy provided by the statute must be followed and writ should not generally be entertained unless the statutory remedies are exhausted.
20. In
21. In
22. In Punjab National Bank v. O.C. Krishnan and Ors. AIR 2001 2993, the Supreme Court while considering the issue of alternative remedy observed as under :-
"The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal u/s 20 and this fast tract procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
23. A Constitution Bench of the Supreme Court in
24. Again a Constitution Bench of the Supreme Court in
25. Yet another Constitution Bench of the Supreme Court in State of U.P. and Ors. v. Mohammed Nooh AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would like provided there is no other equally effective remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available through it may not be, per se, a bar to issue a writ of prerogative. The Supreme Court held that the remedy, being discretionary, cannot be asked as a matter of right, even if the order is a nullity, on the ground that it was passed by disregarding the rules of natural justice. The Court held as under:
"......save in exceptional cases, the Courts will not interfere under article 226 until all normal remedies available to a petitioner have been exhausted. The normal remedies in a case of this kind are appeal or revision. It is true that on a matter of jurisdiction or on a question that goes to the root of the case, the High Courts can entertain a petition at an early stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually ask him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction.........The petitioner would have been expected to pursue the remedies of appeal or revision and could not have come to the High Court in the ordinary way until he had exhausted them."
26. In N.T. Veluswami Thevar v. C. Raja Nainar and Ors. AIR 1959 SC 442, the Supreme Court held that the jurisdiction of the High Court to issue writs against the orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court must properly exercise its discretion in declining to interfere under Article 226 of the Constitution.
27. Another Constitution Bench of the Supreme Court in
28. In
29. In
30. In
31. In
"Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy."
32. Similar view has been reiterated in
33. In the
"It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature and can be invoked for the enforcement of any fundamental right or legal right. The Constitutional Court should insist upon the party (to avail of the efficacious alternative remedy) instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the Court from granting the appropriate relief to a citizen in peculiar and special facts notwithstanding the existence of alternative efficacious remedy, the existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article."
34. In
35. In the
36. In
37. This Court in (2002) 1 UPLBEC 705 (Hon''blc S.K. Sen, C.J. and Hon''ble R.K. Agarwal, J.), Pradeep Kumar Singh v. U.P. State Sugar Corporation and Anr., has referred in its judgment, the following cases (1991) 2 UPLBEC 898 ,
"Thus, from the various decisions referred to above the following principles emerge regarding maintainability of a petition under Article 226 of the Constitution of India:
(I) While exercising its writ jurisdiction under Article 226 of the Constitution of India, the High Court may decline to grant relief until such statutory remedy is exhausted. However, this rule is a rule of policy, convenience and discretion and not a rule of law nor it bars the jurisdiction of the High Court under Article 226 of the Constitution in granting relief in appropriate case and exceptional circumstances;
(II) Alternative remedy is not a bar where a writ petition has been filed for enforcement of any fundamental rights; or where there is violation of principles of natural justice, or where the order of the proceedings are wholly without jurisdiction or the vires of an Act is challenged."
38. In my respectful consideration since in Pradeep Kumar Singh (supra) the question of violation of principal of natural justice was being tested in writ petition and, therefore, in reference to the maintainability of the writ petition without resorting to alternative remedy available in the Industrial Disputes Act, therefore, this Court has taken above view. However, the present petitioner Union of India can not take protection of the decision of this Court (D.B.) in Pradeep Kumar Singh (supra) more so in view of the law laid down by the Supreme Court in reference to the alternative remedy.
39. Since this Court has taken a view in Pradeep Kumar Singh (supra) that the writ petition is maintainable in the case of the termination of the writ petitioner for violation of principles of natural justice whereas in the present case the only question is not involved about the violation of principles of natural justice. The petitioner has also challenged the procedure of the enquiry and the dismissal on the basis of the enquiry report as well as the appellate order which has been opposed by the respondents on the ground of alternative remedy.
40. In view of the above observations, this Court find that this writ petition cannot be entertained on the ground of alternative remedy as the petitioner was to file revision under Rule 219 of R.P.F. Rules, 1957.
41. The writ petition is dismissed on the ground of alternative remedy. Therefore, the cases referred by the petitioner on the ground that the punishment is disproportionate cannot be considered.
