Uttarakhand High Court
Dhirendra Kumar vs State Of Uttarakhand & Others on 15 November, 2018
Equivalent citations: AIRONLINE 2018 UTR 829
Author: Alok Singh
Bench: Ramesh Ranganathan, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/B) No. 45 of 2013
Dhirendra Kumar. ............ Petitioner
Versus
State of Uttarakhand & others. ............ Respondents
Mr. Alok Mahra, Advocate for the petitioner.
Mr. Pradeep Joshi, Standing Counsel for the State of Uttarakhand / respondent No. 1.
Mr. Ramji Srivastava, Advocate for respondent nos. 4, 5 and 7.
JUDGMENT
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Singh, J.
Dated: 15th November, 2018 RAMESH RANGANATHAN, C.J. (Oral) Admittedly, the subject matter of the dispute falls within the purview of the Uttar Pradesh Public Services (Tribunal) Act, 1976 (hereinafter referred to as the "1976 Act"). The petitioner, instead of approaching the Tribunal, has chosen to invoke the jurisdiction of this Court.
2. While the learned counsel for the respondents have placed reliance on the judgment of the Supreme Court, in L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261, to contend that the petitioner ought to have invoked the jurisdiction of the Tribunal in the first instance before approaching the High Court, Mr. Alok Mahra, learned counsel for the petitioner, would contend, not without justification, that, unlike Tribunals constituted under the Administrative Tribunals Act or Tribunals constituted under Article 323-A and 323-B of the Constitution of India, Section 4 of the 1976 Act merely enables the petitioner to approach the Tribunal, and does not obligate him to do so before invoking the jurisdiction of this Court. Learned counsel would place reliance on the judgment of the Supreme Court in Public Services Tribunal Bar Association vs. State of U.P. and another, reported in (2003) 4 SCC 104, wherein the Supreme Court, after taking note of its earlier decision in L. Chandra Kumar's case (supra), observed thus:
2"39. Sub-section (5-B) provides that the Tribunal shall not have the power to make an interim order (whether by way of injunction or stay or in any other manner) in respect of an order made or purporting to be made by an employer for the suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant. Dismissal, removal, termination and compulsory retirement puts an end to the relationship of employer and employee. In case of suspension, reduction in rank or reversion, the relationship of employer and employee continues. Interference at the interim stage with an order of dismissal, removal, termination and compulsory retirement would be giving the final relief to an employee at an interim stage which he would have got in case the order of dismissal, removal, termination and compulsory retirement is found not to be justified. If the order of dismissal, removal, termination and compulsory retirement is set aside then an employee can be compensated by moulding the relief appropriately in terms of arrears of salary, promotions which may have become due or otherwise compensating him in some other way. But in case the order of dismissal, removal, termination and compulsory retirement is found to be justified then holding of the office during the operation of the interim order would amount to usurpation of an office which the employee was not entitled to hold. The action becomes irreversible as the salary paid to the employee cannot be taken away as he has worked during that period and the orders passed by him during the period he holds office (because of the interim order) cannot also be put at naught. The Legislature in its wisdom thought it proper not to confer the power to grant interim relief on the Tribunal. The State Legislature had the legislative competence to constitute a Services Tribunal and it was for it to define the parameters of the jurisdiction of the Tribunal. An employee is not left without any remedy. Judicial review of an order regarding which the jurisdiction of the Tribunal is barred would be available by approaching the High Court by filing petition under Article 226 or 227 of the Constitution of India. In an extreme and rare case where the order is passed mala fide or without following the procedure under the law then the employee can certainly approach the High Court under Article 226 of the Constitution for interim relief. The High Court in such an extreme and rare case may in its wisdom stay the operation of the said order. In the case of suspension, reduction in rank or reversion, the relationship of employer and employee remains. Normally, the suspension is made during a contemplated or a pending enquiry. During the suspension period the employee is entitled to the suspension allowance. If the suspension continues for an indefinite period or an order of suspension is passed mala fide then it would be open to the employee to challenge the same by approaching the High Court under Article 226 of the Constitution of India. In case the order of reduction in rank or reversion is set aside then the employee can be compensated by adequately moulding the relief while giving the relief at the final stage. Power of the Tribunal to grant interim relief has been taken away qua certain matters not completely. The power has been taken away in matters where the grant of the said relief at the interim stage would 3 result in giving the relief which would normally be given while disposing of the case finally. Simply because in rare cases of microscopic number a case is made out for stay of orders of suspension, transfer, reduction in rank, reversion or termination, dismissal and compulsory retirement and the employee is liable to approach the High Court for interim stay by itself is no ground to strike down a law enacted by the Legislature which is within its competence to enact......." (emphasis supplied)
3. While Mr. Alok Mahra may well be justified in his submission that the petitioner is not obligated to approach the Tribunal in the first instance, the fact remains that the jurisdiction which this Court exercises, under Article 226 of the Constitution of India, is discretionary and it is not as if this Court would entertain every writ petition filed by persons aggrieved by the action of the Government with regards their terms and conditions of service, for it is not in dispute that the Tribunal also has jurisdiction to entertain such matters. While, ordinarily, the jurisdiction of the Tribunal should be invoked in such matters, this Court can always entertain a writ petition, on its jurisdiction being invoked directly, in exceptional cases. We see no reason, therefore, to entertain this writ petition, and relegate the petitioner to avail his effective statutory remedy of approaching the Tribunal constituted under the 1976 Act.
4. Suffice it to make it clear that, since Section 4 of the 1976 Act is an enabling provision and the petitioner was not barred from invoking the jurisdiction of this Court, the Tribunal shall entertain the petition filed by the petitioner without taking into account the period, during which the writ petition was pending on the file of this Court, in computing the delay, if any, in invoking its jurisdiction.
5. The writ petition stands disposed of accordingly.
(Alok Singh, J.) (Ramesh Ranganathan, C. J.)
15.11.2018 15.11.2018
Rahul