Patna High Court
Basudeo Prasad Mandal vs The State Of Bihar And Ors on 2 July, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6961 of 2018
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Basudeo Prasad Mandal Son of Mohan Lal Mandal, resident of House No.
524, Shitala Sthan Road, Tilkamajhi, P.S.- Tilkamajhi, District- Bhagalpur.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. The Principal Secretary, Building Construction Department, Govt. of Bihar,
Patna.
3. The Joint Secretary, Building Construction Department, Govt. of Bihar,
Patna.
4. The Officer on Special Duty-cum-Chief Vigilance Officer, Building
Construction Department, Govt. of
5. The Deputy Secretary Building Construction Department, Govt. of Bihar
Patna.
6. The Additional Secretary, Building Construction Department, Govt. of Bihar
Patna.
7. The Superintending Engineer, Building Division, Purnea, Building
Construction Department, Govt. of Bihar, Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Adv
Mr.Sumit Kumar Jha, Adv
Ms. Riya Giri, Adv
For the Respondent/s : Mr.Raj Ballabh Pd.Yadav Aag11
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 02-07-2024
Heard learned Senior counsel for the petitioner and
Learned counsel for the State.
2. The present writ petition has been filed for the
following reliefs:-
i) To issue a writ/order/ direction in the nature of
certiorari for quashing of letter no. 2609(g) dated 20.03.2018
issued by the State Government under the signature of Deputy
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Secretary, Building Construction Department, Patna by which
the petitioner has been reverted back to the post of Assistant
Engineer under the Bihar Government Servant (Classification,
Control & Appeal) Rule, 2005 (Annexure 13).
ii) To issue a writ/order/ direction in the nature of
certiorari for quashing report dated 19.09.2014 by which the
Presiding Officer on basis of the inquiry report has held the
charges leveled against the petitioner to be true.
iii) For a direction to the respondent authorities to restore
the service of the petitioner immediately on the post of
Superintending Engineer-cum Execution Engineer, Building
Circle, Purnea with continuity in service and all consequential
benefits.
iv) To any other relief or reliefs for which the petitioner is
found to be entitled in the facts and circumstances of the case.
3. Learned Senior counsel for the petitioner submits that
in the present writ petition, the original order has been
challenged which has been passed by the Government and there
is provision of Statutory Appeal available in the form of the
review, which has been mentioned in Section 24(2) Bihar
Government Servants (Classification, Control and Appeal)
Rules, 2005 (Hereinafter referred to as the "CCA Rules of
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2005") but in the present case, there is gross violation of the
Rule of Law as well as violation of Principles of Natural Justice
and therefore, direct entertainment of the writ petition is
permissible within the preview of law under Article 226 of the
Constitution of India.
4. In support of his argument, learned Senior counsel relied on a
judgment rendered in case of Godrej Sara Lee Ltd Vs. Excise
and Taxation Officer-cum-Assessing Authority and Ors.
reported in 2023 SCC OnLine SC 95 whose paragraphs 4, 5, 8
are relevant in which it has been held that in 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 but the principles for entertainment of writ petition
under Article 226 is basically plenary in nature and any
limitation on the exercise of such power must be traceable in the
Constitution itself. Article 226 of the constitution of India does
not impose any limitation or restrain on the exercise of power to
issue writs.
5. He relied one another Judgments rendered in the case
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of Commissioner of Income Tax and Ors. Vs. Chabbil Dass
Agarwal reported in 2014 (1) SCC 603 whose paragraph 10, 11,
12, and 15 are relevant in which it has been held that wherever
there is violation of principle of natural justice and not
following the Rule of Law, then writ petition may be directly
entertained.
6. Learned counsel for the petitioners further relied on
another judgement of Ram And Shyam Company Vs. State of
Haryana and Ors. reported in 1985 (3) SCC 267 and Lily
Thomas and Ors. Vs Union of India and Ors. reported in 2000
(6) SCC 224. It addition to that he relied on one more judgment
decided by this Hon'ble Court in the case of Harihar Prasad
and Ors. Vs. Union of India and Ors. reported in 2009 (4)
PLJR 892 and submits that availability of alternative remedy is
not absolute bar in entertaining the writ petition especially when
matter is pending for six year before this Court, and particularly,
when no objection has been raised in the counter affidavit by the
respondents. He further submits on merit that both the points
available to the petitioner that Rule of Law has not been
followed in imposing the punishment against the petitioner as
well as there is a gross violation of principle of natural justice
against the petitioner.
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7. Learned Senior counsel further submits that Annexure-
11 is the enquiry report. He submits that the CCA Rules of
2005 categorically indicate that enquiry authority shall have to
prepare the enquiry report completely in accordance with Rule
17(23) CCA Rules of 2005. Here in the present case, there is
gross violation of the same and none of the ingredients of Rule
17(23) has been followed. He further submits that second show
cause has been issued and in response thereof, the petitioner has
submitted his reply to the same but none of the points have been
considered in the final order which is impugned order. Learned
Senior Counsel further submits that final order has been passed
in this regard and specific guideline has been issued under Rule
18(3) and Rule 18(4) of the CCA Rules of 2005 and in passing
the order the disciplinary authority has made gross violation of
these Rules. Authorities concerned have not given their own
findings neither they have considered the reply to the show-
cause submitted by the petitioner.
8. In support of his argument, counsel relied on the
judgment rendered in the case of Oryx Fisheries Pvt. Ltd. Vs.
Union of India and Ors. reported in 2010 (13) SCC 427 in
which he specifically relied on the paragraphs 27, 39, 40 and 41
and submits that disciplinary proceeding has been conducted in
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the unique manner which is completely unknown to law and
there is gross violation of principle of natural justice and Rule of
Law particularly 17 (23) and 18 (3)(4) of CCA Rules, 2005 have
not been followed. Therefore, he submits that both the enquiry
report as well as the disciplinary order may be set aside.
9. Learned counsel for the State opposes the prayers made
in the writ petition and submits that there is no procedural
lacuna in this case. Charge-memo has been issued as per law
and ample opportunity was given to the petitioner. The
petitioner has submitted reply before the enquiry Officer.
Enquiry was conducted, enquiry report was prepared, second
show cause notice was issued, reply of the same has been filed,
and thereafter, the disciplinary authority has passed the order.
Therefore, according to him neither there is any procedural
lacuna nor any violation of principle of natural justice. In
addition to that learned counsel for the State further submits that
Rule 24(2) of CCA Rules of 2005 states that there is alternative
remedy available to the petitioner by way of filing review
petition and by preparing the memorials but instead of
exhausting his remedy by way of filing memorial, he has
directly filed the writ petition before this Hon'ble Court.
Therefore, he submits that either on merit or on maintainability,
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this writ petition is not maintainable and fit to be dismissed.
10. In this light of the submissions made by the parties, it
is necessary to quote the provisions of law and the case laws
first then to apply the opinion and view of the Court.
11. The provision of law on which this case has to be
decided is Rule 17(23)(i) of the CCA Rules of 2005 and Rule
18(3) and Rule 18 (4) of the CCA Rules of 2005 which are as
follows:
23)(i) After the conclusion of the inquiry, a record shall be
prepared and it shall contain:-
(a) the articles of charge and the statement of the
imputations of misconduct or misbehaviour;
(b) the defence of the Government Servant in respect of
each article of charge.
(c) an assessment of the evidence in respect of each article
of charge,
(d) the findings on each article of charge and the reasons
thereof.
18(3) The disciplinary authority shall forward or cause to
be forwarded a copy of the inquiry report, together with its
own findings, if any, as provided in sub-rule (2), to the
government servant who may submit, if he or she so desires,
his or her written representation or submission to the
disciplinary authority within fifteen days.
18(4) The disciplinary authority shall consider the
representation or submission, if any, submitted by the
Government Servant before proceeding further in the
manner specified in sub rules (5) and (6).
12. The first Judgment on which learned Senior counsel
for the petitioner relied on Godrej Sara Lee Ltd Vs. Excise and
Taxation Officer-cum-Assessing Authority and Ors. reported in
2023 SCC OnLine SC 95 whose relevant paragraphs are 4, 5
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and 8 are as follows:
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 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
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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 v.
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 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.
8. That apart, we may also usefully refer to the
decisions of this Court reported in (1977) 2 SCC
724 (State of Uttar Pradesh v. Indian Hume Pipe
Co. Ltd.) and (2000) 10 SCC 482 (Union of India v.
State of Haryana). What appears on a plain reading
of the former decision is that whether a certain item
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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 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.
13. The second judgment on which learned Senior
counsel for the petitioner relied on is Commissioner of Income
Tax and Ors. Vs. Chabbil Dass Agarwal reported in 2014 (1)
SCC 603 whose relevant paragraphs are 10, 11, 12 and 15 which
are as follows:
10. In the instant case, the only question which
arises for our consideration and decision is whether
the High Court was justified in interfering with the
order passed by the assessing authority under
Section 148 of the Act in exercise of its jurisdiction
under Article 226 when an equally efficacious
alternate remedy was available to the assessee
under the Act.
11. Before discussing the fact proposition, we would
notice the principle of law as laid down by this
Court. It is settled law that non-entertainment of
petitions under writ jurisdiction by the High Court
when an efficacious alternative remedy is available
is a rule of self-imposed limitation. It is essentially a
rule of policy, convenience and discretion rather
than a rule of law. Undoubtedly, it is within the
discretion of the High Court to grant relief under
Article 226 despite the existence of an alternative
remedy. However against the High Court must not
interfere if there is an adequate efficacious
alternative remedy available to the petitioner and he
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has approached the High Court without availing the
same unless he has made out an exceptional case
warranting such interference or there exist sufficient
grounds to invoke the extraordinary jurisdiction
under Article 226. (See State of U.P. v. Mohd Nooh,
Titaghur Paper Mills Co. Ltd. v. State of Orissa³,
Harbanslal Sahnia v. Indian Oil Corp. Ltd. and
State of H.P. v. Gujarat Ambuja Cement Lid.)
12. The Constitution Benches of this Court in K.S.
Rashid and Son v. Income Tax Investigation
Commission, Sangram Singh v. Election Tribunal,
Union of India v. T.R. Varmas, State of U.P. v. Mohd.
Nooh and K.S. Venkataraman and Co. (P) Ltd. v.
State of Madras have held that though Article 226
confers very wide powers in the matter of issuing
writs on the High Court, the remedy of writ is
absolutely discretionary in character. If the High
Court is satisfied that the aggrieved party can have
an adequate or suitable relief elsewhere, it can
refuse to exercise its jurisdiction. The Court, in
extraordinary circumstances, may exercise the
power if it comes to the conclusion that there has
been a breach of the principles of natural justice or
the procedure required for decision has not been
adopted [See N.T. Veluswami Thevar v. G. Raja
Nainario, Municipal Council, Khurai v. Kamal
Kumar, Siliguri Municipality v. Amalendu Das, ST.
Muthusami Kurier Natarajan, Rajasthan Kerala
SEB v. Kurien E. Kalathil's, A. Venkatasubbiah
Naidu v. S. Chellappan 16. L.L. Sudhakar Reddy v.
State of A.P.17. Shri Sant Sadguru Janardan Swami
(Moingiri Maharaj) Sahakari Dugdha Utpadak
Sanst Sanstha v. State of Maharashtra1s, Pratap
Singh v. State of Haryana and GKN State
Driveshafts (India) Ltd. v. ITO20.]
15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of alternative
remedy i.e. where the statutory authority has not
acted in accordance with the provisions of the
enactment in question, defiance of the fundamental
principles of judicial procedure, or has resorted to
invoke the provisions which are repealed, or when
an order has been passed in total violation of the
principles of natural justice, the proposition laid
down in Thansingh Nathmal case22. Titaghur Paper
Mills case and other similar judgments that the
High Court will not entertain petition under Article
226 of the Constitution if an effective alternative a
remedy is available to the aggrieved person or the
statute under which the action complained of has
been taken itself contains a mechanism for dressal
of grievance still holds the field. Therefore, when a
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statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained
ignoring the statutory dispensation.
14. The third judgment on which learned Senior counsel
for petitioner relied on is Ram And Shyam Company Vs. State
of Haryana and Ors. reported in 1985 (3) SCC 267 whose
relevant Paragraph No. 9 is as follows:
9. Before we deal with the larger issue, let me put
out of the way the contention that found favour with
the High Court in rejecting the writ petition. The
learned Single Judge as well as the Division Bench
recalling the observations of this Court in Assistant
Collector of Central Excise v. Jainson Hosiery
Industries rejected the writ petition observing that
"the petitioner who invokes the extraordinary
Jurisdiction of the court under Article 226 of the
Constitution must have exhausted the normal
statutory remedies available to him", We remain
unimpressed. Ordinarily it is true that the court has
imposed a restraint in its own wisdom on its exercise
of jurisdiction under Article 226 where the party
invoking the jurisdiction has an effective adequate
alternative remedies there often, it has been
expressly stated that the rule which requires the
exhaustion of alternative remedies is a rule of
convenience and discretion rather than rule of law
at any rate it does not oust the jurisdiction of the
Court. In fact in the very decision relied upon by the
High Court in State of U.P. v. Mohammad Nooh it is
observed "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 should be made specifically clear that
where the order complained against is alleged to be
illegal or invalid as being contrary to law, a petition
at the instance of person adversely affected by it,
would lie to the High Court under Article 226 and
such a petition cannot be rejected on the ground that
an appeal lies to the higher officer or the State
Government. An appeal in all cases cannot be said
to provide in all situations an alternative effective
remedy keeping aside the nice distinction between
jurisdiction and merits. Look at the fact situation in
this case. Power was exercised formally by the
authority set up under the Rules to grant contract
but effectively and for all practical purposes by the
Chief Minister of the State. To whom do you appeal
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in a State administration against the decision of the
Chief Minister? The clitch of appeal from Ceasar to
Ceasar's wife can only be bettered by appeal from
one's own order to oneself. Therefore this is a case
in which the High Court was not at all justified in
throwing out the petition on the untenable ground
that the appellant had an effective alternative
remedy. The High Court did not pose to itself the
question, who would grant relief when the impugned
order is passed at the instance of the Chief Minister
of the State. To whom did the High Court want the
appeal to be filed over the decision of the Chief
Minister. There was no answer and that by itself
without anything more would be sufficient to set
aside the judgment of the High Court.
15. The Fourth judgment on which learned Senior counsel
for the petitioner relied on is Lily Thomas and Ors. Vs Union
of India and Ors. reported in 2000 (6) SCC 224 whose relevant
paragraphs are 56, 57 and 58 are as follows:
56. It follows, therefore, that the power of review
can be exercised for correction of a mistake but not
to substitute a view. Such powers can be exercised
within the limits of the statute dealing with the
exercise of power. The review cannot be treated like
an appeal in disguise. The mere possibility of two
views on the subject is not a ground for review.
Once a review petition is dismissed no further
petition of review can be entertained. The rule of
law of following the practice of the binding nature
of the larger Benches and not taking different views
by the Benches of coordinated jurisdiction of equal
strength has to be followed and practiced. However,
this Court in exercise of its powers under Article
136 or Article 32 of the Constitution and upon
satisfaction that the earlier judgments have resulted
in deprivation of fundamental rights of a citizen or
rights created under any other statute, can take a
different view notwithstanding the earlier judgment.
57. In the light of the legal position as enumerated
hereinabove, let us examine the grievances of the
petitioners in the instant case. In review petition the
notice issued was limited to the question of Article
20(1) of the Constitution. It was contended that the
judgment of the Court entailed on a convert to Islam
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the liability of prosecution for the offence of bigamy
under Section 494 of the Indian Penal Code which
would, otherwise not be an offence under the law
applicable to him. Section 494 forms part of a
substantive law and is applicable to all unless
specifically excluded. As no notice has been issued
for review of the main judgment which interpreted
Section 494 IPC in the manner as narrated
hereinabove, it cannot be said that any person was
likely to be convicted for an offence except for
violation of law in force at the time of commission of
the act charged as an offence.
58. Otherwise also no ground as envisaged under
Order XL of the Supreme Court Rules read with
Order 47 of the Code of Civil Procedure has been
pleaded in the review petition or canvassed before
us during the arguments for the purposes of
reviewing the judgment in Sarla Mudgal case. It is
not the case of the petitioners that they have
discovered any new and important matter which
after the exercise of due diligence was not within
their knowledge or could not be brought to the
notice of the Court at the time of passing of the
judgment. All pleas raised before us were in fact
addressed for and on behalf of the petitioners before
the Bench which, after considering those pleas,
passed the judgment in Sarla Mudgal case. We have
also not found any mistake or error apparent on the
face of the record requiring a review. Error
contemplated under the rule must be such which is
apparent on the face of the record and not an error
which has to be fished out and searched. It must be
an error of inadvertence. No such error has been
pointed out by the learned counsel appearing for the
parties seeking review of the judgment. The only
arguments advanced were that the judgment
interpreting Section 494 amounted to violation of
some of the fundamental rights. No other sufficient
cause has been shown for reviewing the judgment.
The words "any other sufficient reason appearing in
Order 47 Rule 1 CPC" must mean "a reason
sufficient on grounds at least analogous to those
specified in the rule" as was held in Chhajju Ram v.
Neki and approved by this Court in Moran Mar
Basselios Catholicos v. Most Rev. Mar Poulose
Athanasius. Error apparent on the face of the
proceedings is an error which is based on clear
ignorance or disregard of the provisions of law. In
T.C. Basappa v. T. Nagappa this Court held that
such error is an error which is a patent error and
not a mere wrong decision. In Hari Vishnu Kamath
v. Ahmad Ishaque it was held:
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"It is essential that it should be something
more than a mere error; it must be one which must
be manifest on the face of the record. The real
difficulty with reference to this matter, however, is
not so much in the statement of the principle as in
its application to the facts of a particular case.
When does an error cease to be mere error, and
become an error apparent on the face of the record?
Learned counsel on either side were unable to
suggest any clear-cut rule by which the boundary
between the two classes of errors could be
demarcated.
Mr Pathak for the first respondent contended on the
strength of certain observations of Chagla, C.J. in
'Batuk K. Vyas v. Surat Borough Municipality that
no error could be said to be apparent on the face of
the record if it was not self-evident and if it required
an examination or argument to establish it. This test
might afford a satisfactory basis for decision in the
majority of cases. But there must be cases in which
even this test might break down, because judicial
opinions also differ, and an error that might be
considered by one Judge as self- evident might not
be so considered by another. The fact is that what is
an error apparent on the face of the record cannot
be defined precisely or exhaustively, there being an
element of indefiniteness inherent in its very nature,
and it must be left to be determined judicially on the
facts of each case."
Therefore, it can safely be held that the petitioners
have not made out any case within the meaning of
Article 137 read with Order XL of the Supreme
Court Rules and Order 47 Rule 1 CPC for reviewing
the judgment in Sarla Mudgal case. The petition is
misconceived and bereft of any substance.
16. The Fifth Judgments on which learned Senior counsel
for the petitioner is relying on the judgment rendered by this
Hon'ble Court in the case of Harihar Prasad and Ors. Vs.
Union of India and Ors. reported in 2009 (4) PLJR 892 whose
relevant paragraph 5 is quoted us under:-
5. Now coming to the question of appellate
remedies. It is well settled principle that availability
of alternative remedy is not an absolute bar in
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entertaining the writ petition especially when this
objection is being raised after more than 6 years of
the filing of the writ petition. Merely stating the
objection in the counter affidavit is of no avail
unless the objections are pressed into service. It was
never so pressed. It is well settled that such a
belated objection should not be entertained.
Reference may be made to the case of Hirday
Narain vs. Income Tax Officer, AIR 1971 Supreme
Court 33 and series of cases on that line. Further, in
view of there being no controversy of fact at this
later juncture, I do not feel persuaded to relegate
the petitioner to alternative remedy.
17. The Sixth judgment on which learned Senior counsel
for the petitioner has relied on is Oryx Fisheries Pvt. Ltd. Vs.
Union of India and Ors. reported in 2010 (13) SCC 427 whose
relevant paragraphs are 27, 39, 40 and 41 as follows:
27. It is no doubt true that at the stage of show
cause, the person proceeded against must be told
the charges against him so that he can take his
defence and prove his innocence. It is obvious that
at that stage the authority issuing the charge-sheet,
cannot, instead of telling him the charges, confront
him with definite conclusions of his alleged guilt. If
that is done, as has been done in this instant case,
the entire proceeding initiated by the show-cause
notice gets vitiated by unfairness and bias and the
subsequent proceedings become an idle ceremony.
39. On the requirement of disclosing reasons by a
quasi-judicial authority in support of its order, this
Court has recently delivered a judgment in Kranti
Associates (P) Ltd. v. Masood Ahmed Khan on 8-9-
2010.
40. In Kranti Associates this Court after considering
various judgments formulated certain principles in
SCC para 47 of the judgment which are set out
below: (SCC pp. 510-12)
"(a) In India the judicial trend has always
been to record reasons, even in administrative
decisions, if such decisions affect anyone
prejudicially.
(b) A quasi-judicial authority must record
reasons in support of its conclusions.
(c) Insistence on recording of reasons is
Patna High Court CWJC No.6961 of 2018 dt.02-07-2024
17/20
meant to serve the wider principle of justice that
justice must not only be done it must also appear to
be done as well.
(d) Recording of reasons also operates as a
valid restraint on any possible arbitrary exercise of
judicial and quasi-judicial or even administrative
power.
(e) Reasons reassure that discretion has been
exercised by the decision-maker on relevant grounds
and by disregarding extraneous considerations.
(f) Reasons have virtually become as
indispensable a component of a decision-making
process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative
bodies.
(g) Reasons facilitate the process of judicial
review by superior courts.
(h) The ongoing judicial trend in all
countries committed to rule of law and
constitutional governance is in favour of reasoned
decisions based on relevant facts. This is virtually
the lifeblood of judicial decision-making justifying
the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions
these days can be as different as the judges and
authorities who deliver them. All these decisions
serve one common purpose which is to demonstrate
by reason that the relevant factors have been
objectively considered. This is important for
sustaining the litigants' faith in the justice delivery
system.
(j) Insistence on reason is a requirement for
both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is
not candid enough about his/her decision-making
process then it is impossible to know whether the
person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be
cogent, clear and succinct. A pretence of reasons or
'rubber-stamp reasons' is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is
the sine qua non of restraint on abuse of judicial
powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to
errors but also makes them subject to broader
scrutiny. (See David Shapiro in Defence of Judicial
Candor (1987) 100 Harv. L. Rev. 731-37.)
(n) Since the requirement to record reasons
emanates from the broad doctrine of fairness in
Patna High Court CWJC No.6961 of 2018 dt.02-07-2024
18/20
decision-making, the said requirement is now
virtually a component of human rights and was
considered part of Strasbourg Jurisprudence. See
Ruiz Torija v. Spain, EHRR at p. 562, para 29 and
Anya v. University of Oxford, wherein the Court
referred to Article 6 of the European Convention of
Human Rights which requires, 'adequate and
intelligent reasons must be given for judicial
decisions'.
(o) In all common law jurisdictions
judgments play a vital role in setting up precedents
for the future. Therefore, for development of law,
requirement of giving reasons for the decision is of
the essence and is virtually a part of 'due process'."
41. In the instant case the appellate order contains
reasons. However, absence of reasons in the original
order cannot be compensated by disclosure of
reason in the appellate order.
18. On the point of maintainability, this Court is of the
firm view, after going through those judgments that whenever,
there is a violation of principles of natural justice, the alternative
remedy cannot restrain the High Court in passing order under
Article 226 of the Constitution of India. In addition to other
ground mentioned in the aforesaid judgments. Here in the
present case, there is gross violation of principles of natural
justice as well as the violation of Rule of Law. Therefore, this
Court is of the firm view that the present writ petition is
maintainable.
19. After perusal of the enquiry report, it transpires to this
Court that enquiry officer has not passed order in the light of the
Rule 17(23) of the CCA Rules of 2005, which categorically
states that after conclusion of the enquiry, enquiry officer shall
Patna High Court CWJC No.6961 of 2018 dt.02-07-2024
19/20
indicate in the enquiry report about the articles of charge, the
statement of the imputations of misconduct or misbehavior, the
defence of the Government Servant in respect of each article of
charge, an assessment of the evidence in respect of each article
of charge and the findings on each article of charge and the
reasons thereof.
20. Upon bare reading of the enquiry report, it transpires
to this Court that the point of defence mentioned by the
Government Servant has not been considered in the enquiry
report at all, and therefore, this Court is of the firm view that
enquiry report is not sustainable, as the disciplinary authority at
the time of passing the order has not applied his own mind and
has not reached on his own findings. It is also made clear that
when the enquiry report is defective then automatically, all the
further steps of departmental proceedings shall also become
defective. Keeping in view the aforesaid facts that neither the
enquiry report nor the order passed by the disciplinary authority
are sustainable in law, both orders i.e letter no. 2609(g) dated
20.03.2018issued by the signature of Deputy Secretary, Building Construction Department, Patna and report dated 19.09.2014 by which the Presiding Officer on basis of the inquiry report has held the charges leveled against the petitioner Patna High Court CWJC No.6961 of 2018 dt.02-07-2024 20/20 to be true are hereby set aside. However the State would be at liberty to proceed further against the petitioner in accordance with law.
20. It is directed further that any decision which has to be taken shall be taken by State within 90 days and conclude it, if there shall be no action taken against him within the said period then the respondents shall pay all his benefits for which he is entitled.
21. With the aforesaid observations and direction, this writ petition stands allowed.
(Dr. Anshuman, J) Sunnykr/-
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