Madras High Court
R.Pitchai vs The Principal Chief Conservator Of ... on 9 November, 2011
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/11/2011 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).No.12675 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 R.Pitchai ... Petitioner Vs. 1.The Principal Chief Conservator of Forests, [Head of Forest Force], Panagal Buildings, Chennai - 600 015. 2.The Conservator of Forests, Madurai Circle, Madurai. 3.The District Forest Officer, Madurai Division, Madurai. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the proceedings (1) Proc.No.AB1/46341/2009 dated 4.8.2010 of the first respondent and (2) Se.Mu.Order No.962/10 Pa2 dated 28.09.2011 of the third respondent and quash the first proceeding insofar as the petitioner's non selection is concerned and second proceeding in its entirety and issue consequential direction to the first respondent to declare the name of the petitioner as selected in the panel in Proc.No.AB1/46341/2009 dated 4.8.2010 fit for promotion as Forester for the year 2009-2010 and promote him as such with retrospective effect from the date of promotion of his junior with all consequential benefits. !For Petitioner ... M/s.M.Ravi ^For Respondents... Mr.T.R.Janarthanan Additional Government Pleader :ORDER
****** The petitioner R.Pitchai aggrieved by the impugned orders passed by the first respondent in his proceedings No.AB1/46341/2009 dated 4.8.2010 and the third respondent/the District Forest Officer, Madurai Division, Madurai in his proceedings No. Se.Mu.Order No.962/10 Pa2 dated 28.09.2011, has come to this Court by filing this present writ petition.
2. Heard Mr.M.Ravi, the learned Counsel for the petitioner. Mr.T.R.Janarthanan, learned Additional Government Pleader takes notice for the respondents.
3. By consent of both parties, this Writ Petition itself is taken up for final disposal.
4. The learned Counsel appearing for the petitioner would submit that the petitioner suffered a charge memo No.3743/2009/Pa2 dated 25.05.2009 consisting of two charges which are as follows:
"Charge No.1: The Forest Guard had committed dereliction of duty by permitting the village people to encroach and construct the permanent structure of steps, which had no right of way, to reach the Mahalingam temple at Sitthar hill Range, Vikkiramangalam beat, Mannadimangalam Section which is declared as Reserve Forest.
Charge No.2: While the above said encroachment and construction had taken place approximately for two months in the Reserve Forest which is under the administrative jurisdiction of the Forest Guard, he failed to report the same to the higher authorities and thereby helped for the occurrence of the forest offence."
Immediately on receipt of the said charge-memo, the petitioner submitted his detailed explanation. Subsequently, an Enquiry Officer was appointed to conduct an enquiry and on completion of the enquiry, he submitted the enquiry report on 08.07.2009 holding that both the charges stood proved. On the basis of the findings of the Enquiry Officer, the third respondent, after giving the second show-cause notice dated 13.07.2009 to the petitioner to submit his explanation and on receipt of the further explanation dated 17.07.2009, has issued an order of punishment imposing postponement of increment for three years with cumulative effect through his proceedings No.3743/2009, Va2, dated 21.07.2009. Aggrieved by the said order, the petitioner preferred an appeal on 18.09.2009 before the second respondent/the Conservator of Forests, Madurai Circle, Madurai, which was also ended in dismissal. As he was aggrieved by the order of rejection passed by the second respondent dated 04.11.2011, once again the petitioner preferred a revision petition on 28.01.2010 before the first respondent/the Principal Conservator of Forests, Chennai, who on considering a flaw which had occurred before the Enquiry Officer, set aside the order of punishment imposed by the third respondent and also given a direction to conduct a fresh enquiry as there was a procedural lapse in conducting the enquiry. Thereafter, the third respondent once again by passing the present impugned order dated 28.09.2011, imposed the present punishment, namely, the punishment of reduction of pay to the lowest stage for three years with cumulative effect. This has given rise to the present writ petition.
5. The learned Counsel appearing for the petitioner would submit that when there has been a remand order by the first respondent/the Principal Chief Conservator of Forests, Chennai, by setting aside the proceedings started from the third respondent to second respondent to hold a fresh enquiry and pass appropriate order, it is not open to the third respondent to impose higher or major punishment than what was imposed in the earlier occasion without giving a sound reason. For a moment, the petitioner may be right in saying so, however, this grievance can be rightly adjudicated as he has already gone before the Appellate Authority against the order dated 21.07.2009 and after rejection of appeal on 04.11.2009, he preferred a revision petition before the first respondent who, on satisfying with the infirmities found in the enquiry proceedings, allowed the revision by setting aside both orders passed by the respondents 3 and 2. After remand, the third respondent/Disciplinary Authority has passed the present impugned order and being aggrieved by the order passed by the Disciplinary Authority without filing appeal before the second respondent and revision before the first respondent, bypassing both the appeal and revisional remedy wrongly approached this Court by filing the writ petition. Therefore, this Court is not inclined to entertain the writ petition for the reason that the petitioner on the earlier occasion also when he suffered a punishment of postponement of increments for three years with cumulative effect by proceedings No.3743/2009, Va2, dated 21.07.2009 passed by the third respondent, challenging the said order of punishment, the petitioner preferred an appeal before the Conservator of Forests, Madurai Circle, Madurai, the second respondent herein. Even after the dismissal of the said appeal, once again, he went before the revisional authority viz., the first respondent/the Chief Conservator of Forests, Chennai and finally the revisional authority in exercise of his revisional power has set aside the earlier punishment imposed by the third respondent as confirmed by the second respondent. These facts go to show that the appeal and revisional remedy are being statutory ones and more efficacious, effective and alternative remedy. Therefore, I do not find any good reason for the petitioner to bypass these statutory remedies to approach this Writ Court. Again, it is also well settled that the Writ jurisdiction is a discretionary remedy and such a discretion has to be exercised only by the Court and on the other hand not at the discretion of the litigant because when he approached the appellate and revisional authorities on earlier occasion, after remand order passed by the revisional authority, when the disciplinary authority passed any order of punishment, then he has to approach the appellate authority. But, in the present case, had the petitioner not approached the appellate authority and revisional authority as he has done in the earlier occasion, this could have been a well argument to be entertained by this Court. But, having approached the appellate authority and revisional authority earlier as against the order passed by the third respondent, I do not find any merits or subsistence to entertain the present writ petition when he has got alternative and efficacious remedy before the second and first respondents.
6. The learned Counsel appearing for the petitioner has relied upon the following two judgments of the Hon'ble Apex Court to entertain the writ petition:
1. (2010) 1 SCC 126 (Satwati Deswal v. State of Haryana and others).
2. (2007) 10 SCC 88 (M.P.State Agro Industries Development Corporation Ltd., and another v. Jahan Khan).
7. In the case of Satwati Deswal v. State of Haryana and others reported in (2010) 1 SCC 126, it has been held that exhausting alternative remedy not to be insisted upon for approaching the Writ Court. This judgment may not be pressed into service in favour of the petitioner for the reason that the Hon'ble Apex Court while dealing with the termination which is a major penalty imposed upon the appellant therein finding a violation of principles of natural justice, came to the conclusion that the major penalty cannot be imposed without following the procedure laid down in the relevant rules of the department. But, in the present case, the petitioner has not suffered any order of termination. Further, on an earlier occasion when revision was filed before the first respondent challenging the punishment of postponement of increments for three years with cumulative effect, the revisional authority also found against the third respondent and set aside not only the order of the third respondent but also the order passed by the appellate authority/the second respondent. It goes to show that the petitioner has more effecting efficacious and suitable alternative remedy.
8. In another case of M.P.State Agro Industries Development Corporation Ltd., and another v. Jahan Khan reported in (2007) 10 SCC 88, the Hon'ble Apex Court while dealing with the maintainability of the writ petition under Article 226 of the Constitution of India, categorically held that exclusion of writ jurisdiction due to availability of an alternative remedy is purely a rule of discretion and not one of compulsion. Therefore, the exercise of disciplinary remedy has to be at the instance of the Writ Court but not at the option of the petitioner when he has already approached the appellate and revisional authority in the first round of litigation.
9. In that view of the matter, this Court is not inclined to interfere with the impugned orders and the writ petition is liable to be dismissed. Accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petitions are closed. However, it is open to the petitioner to file an appeal with the other grounds raised in the present writ petition before the second respondent within two weeks from the date of receipt of a copy of this order. If such an appeal is filed within two weeks from the date of receipt of a copy of this order, the second respondent shall pass appropriate order on merits and in accordance with law expeditiously.
srm To
1.The Principal Chief Conservator of Forests, [Head of Forest Force], Panagal Buildings, Chennai - 600 015.
2.The Conservator of Forests, Madurai Circle, Madurai.
3.The District Forest Officer, Madurai Division, Madurai.