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2022 Supreme(All) 899
IN THE HIGH COURT OF ALLAHABAD
SANGEETA CHANDRA, J.
Rakesh Kumar – Appellant
Versus
State of U.P. and Another – Respondents
Writ A No.4662 of 2022
Decided on : 15-09-2022
Advocate Appeared:
For the Appellant :Shivendu Ojha, Prathamesh Upadhyay, Sr. Advocate
For the Respondent: Abhishek Srivastava
The main legal point established in the judgment is that while the High Court may have discretion to entertain a writ petition in the presence of an alternate statutory remedy, the rule of exhaustion of statutory remedies is a rule of policy, convenience, and discretion.
Headnote:
JURISDICTION - CHALLENGE TO PUNISHMENT ORDER - U.P. POWER CORPORATION LIMITED EMPLOYEES (DISCIPLINE AND APPEAL) REGULATIONS, 2020 - ARTICLE 351-A OF THE CIVIL SERVICES REGULATIONS - M/S MAGADH SUGAR & ENERGY LTD. VS. THE STATE OF BIHAR & OTHERS - WHIRPOOL CORPORATION V. REGISTRAR OF TRADEMARKS, MUMBAI - HARBANSLAL SAHNI V. INDIAN OIL CORPORATION LTD. - RADHA KRISHAN INDUSTRIES V. STATE OF HIMACHAL PRADESH & ORS - ASSISTANT COMMISSIONER OF STATE TAX V. M/S COMMERCIAL STEEL LIMITED - STATE OF HP V. GUJARAT AMBUJA CEMENT LTD - N.P. PONNUSWAMI VS. RETURNING OFFICER 1952 SCR 218
Fact of the Case:
The petitioner, a retired employee of the U.P. Power Corporation Limited, challenged the order forfeiting his pension as punishment for alleged misconduct. The respondent argued that the petitioner had a statutory remedy for filing an appeal under Regulation 11 of the U.P. Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020.
Finding of the Court:
The court found that the punishment order was passed without jurisdiction and in violation of Principles of Natural Justice. However, the court dismissed the Writ Petition as not maintainable due to the availability of a statutory remedy for filing an appeal before the Board of Directors under Regulation 11 of the Regulations of 2020.
Issues: The issues included the jurisdiction of the High Court to entertain the writ petition in the presence of an alternate statutory remedy, violation of Principles of Natural Justice, and the applicability of Article 351-A of the Civil Services Regulations to retired employees of statutory corporations.
Ratio Decidendi: The court held that while the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction, the rule of exhaustion of statutory remedies is a rule of policy, convenience, and discretion. The court also emphasized that in cases where there are disputed questions of fact, the High Court may decline jurisdiction in a writ petition.
Final Decision: The Writ Petition was dismissed as not maintainable due to the availability of a statutory remedy for filing an appeal before the Board of Directors under Regulation 11 of the Regulations of 2020. The court directed the Board of Directors to consider and decide the appeal on its merits if filed within three weeks from the date of the judgment.
JUDGMENT :
1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Prathamesh Upadhyay, learned counsel for the petitioner and Sri Abhishek Srivastava, learned counsel for the respondent no. 2.
2. This petition has been filed challenging the Order dated 10.01.2022 passed by the respondent no. 2 forfeiting the entire pension of the petitioner as punishment for alleged misconduct when the petitioner was an employee of the Respondent Corporation.
3. Learned counsel for the respondent has raised a preliminary objection regarding the maintainability of the petition saying that against the punishment order passed by the respondent no. 2, the petitioner has remedy for filing an appeal under Regulation 11 of the U.P. Power Corporation Limited Employees (Discipline and Appeal) Regulations, 2020. Learned counsel for the respondent has placed before this Court a Division Bench judgment in Special Appeal No. 566 of 2022, Smt. Shaheen Badar Vs. U.P. Power Corporation Limited and others, where the Writ Court had rejected, the writ petition by its order dated 02.09.2022 on the ground of statutory remedy being available, under the Regulations of 2020. The Division Bench observed that if a punishment order is passed in Disciplinary Proceedings by the Chairman, against such an order statutory remedy of filing an Appeal under Regulation 11 is provided to the Board of Directors of the Corporation.
4. It has been argued by the learned counsel appearing on behalf of the petitioner that the order impugned was passed without jurisdiction and in violation of Principles of Natural Justice and in view of the law settled by a recent judgment of the Supreme Court by a three Judges Bench rendered on 24.09.2021 in Civil Appeal No. 5728 of 2021, 'M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar & Others', the existence of a statutory remedy would not be a bar for the High Court for exercising extraordinary jurisdiction under Article 226 of the Constitution.
5. It has been argued by the learned counsel for the petitioner that the petitioner was engaged initially as an Assistant Engineer, and thereafter, promoted as Executive Engineer, and Superintending Engineer, and then promoted as a Chief Engineer before he retired on 31.03.2021. After his retirement charge sheet was issued to him on 17.11.2021 by an Inquiry Committee constituted by the Respondent No.2 without jurisdiction, as there is no provision in the Employees Regulations which gives power to the Respondents to initiate Disciplinary Proceedings against a retired employee without sanction of the Competent Authority.
6. It has further been submitted that the punishment order has been passed on the basis of an Inquiry Report submitted in complete violations of Principles of Natural Justice as no date time and place of hearing were fixed by the Inquiry Officer after the petitioner submitted his reply to the charge sheet. Moreover the Inquiry report is non-speaking in nature.
7. Sri Abhishek Srivastava, has placed reliance upon the mention made in the impugned order of punishment that looking into grave charges of misconduct, the Chairman of the Corporation had in his capacity as the Competent Authority given sanction for initiation of Disciplinary Proceedings under Article 351-A of the Civil Services Regulations on 17.11.2021.
8. Learned counsel for the respondent has placed reliance upon a Division Bench judgment of this Court in Special Appeal Defective No. 646 of 2021 decided on 23.10.2021, 'UPPCL vs. Anil Kumar Sharma', where this Court has considered the applicability of Article 351-A of the Civil Services Regulations to Employees of Statutory Corporations such as the UPPCL, and after placing reliance upon Supreme Court Judgments has observed that the language of Article 351-A of the Civil Services Regulations shall mutatis mutandis apply in such cases and Competent Authority would mean the Chairman of the Corporation who can grant sanction, but such sanction has to be granted by a reasoned and
