Central Administrative Tribunal - Allahabad
Shishir Kumar vs Union Of India Through General Manager on 22 October, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD
*****
(THIS THE 22 DAY OF 10, 2010)
Honble Dr.K.B.S. Rajan, Member (J)
Honble Mr. S. N. Shukla, Member (A)
Original Application No.1533 of 2010
(U/S 19, Administrative Tribunal Act, 1985)
Shishir Kumar, son of
Shri Shambhu PrasadSharma,
aged about 45 years,
R/o Diesel Shed Railway Crossing
(Infront of Hazi Bashir Ara Mill),
Izzat Nagar, District Bareilly
Applicant
Present for Applicant : Shri Vinod Kumar
Versus
1. Union of India through General Manager, North Eastern Railway, Gorakhpur.
2. Senior Divisional Commercial Manager, North Eastern Railway, Izzat Nagar, Bareilly.
3. Assistant Commercial Manager, (Inquiry Officer) North Eastern Railway, Izzat Nagar, Bareilly.
4. Shri Yash Pal Singh (Inquiry Officer), North Eastern Railway, Izzat Nagar, Bat\reilly.
Respondents
Present for Applicant : Shri P.N. Rai
O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) The applicant, who by a penalty order stands compulsorily retired, has filed this O.A. without exhausting the alternate remedy of appeal. It was, therefore, felt that the application is pre mature. When the counsel for the applicant therefore, requested for permission to withdraw the OA, he was, no doubt, permitted to so withdraw. However, before the order could be signed the applicants counsel had submitted that such a requirement of exhaustion of alternate remedies is not insisted when the order passed is in violation of principles of natural justice. In this regard, the counsel has referred to the decision of Whirlpool Corporation vs Registrar of Trade Marks, (1998) 8 SCC 1. It was therefore, decided to verify the same and to have the matter listed for being spoken to and proceed further.
2 Earlier, the decision to withdraw the petition was on the ground that in S.S. Rathors case (1989) 4 SCC 582, it has been stipulated that alternate remedies should be exhausted before approaching the tribunal. The Constitution Bench of the Apex Court, in that case, held as under:-
20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.
Now the decision in the Whirlpool provides a latitude that even without exhausting remedies, the Court can entertain a petition. In fact, in yet another case of M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan,(2007) 10 SCC 88 the Apex Court has held as under:-
12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks (1998) 8 SCC 1 Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 State of H.P. v. Gujarat Ambuja Cement Ltd., 5 (2005) 6 SCC 499 and Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd., 6 (2005) 8 SCC 242)
13. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the afore noted Regulations but having come to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent .
14. For the foregoing reasons, the appeals are devoid of any merit and consequently the same deserve to be dismissed, which we hereby do, leaving the parties to bear their own costs. (emphasis supplied)
3. Initially the order on admission was reserved and later, on finding that certain further details are to be ascertained, the matter was listed before the court under the Heading , being spoken to, the case was heard.
4. Counsel for the applicant submitted that the term ordinarily appearing in Section 20 of the Administrative Tribunals Act provides for a great extent of discretion to the Tribunal to waive the condition of exhaustion of alternate remedies before approaching the Tribunal. He has submitted that it is trite that under the powers vested with the High Court under Art. 226 of the Constitution, this discretionary power is invoked when any of the following four conditions are fulfilled:-
(a) When the fundamental rights are infringed;
(b) When principles of natural justice are violated;
(c) When there is lack of jurisdiction;
(d) Where vires of an Act is challenged.
5. Counsel for the applicant cited the following orders/judgments of the Tribunal/High Courts in this regard:-
(a) 1990 Supreme Court Cases (L&S) 50 (1989) 4 SCC 582 S.S.Rathore Versus State of Madhya Pradesh
(b) Administrative Total Judgments Supreme Court of India Civil Appeal no.6118 of 1999 (Arising out of SLP (c) No. 8953 of 1998) Hardwari Lal Vs. Stte of U.P. & Ors.
(c) 2001 (2) A.W.C 1331 (Allahabad High Court) State of U.Pand Others Vs. Ali Abbas Abdi.
(d) 2002 (2) A.W.C 1382 (Allahabad High Court) Committee of Management of Adarsh Shree Vishwanath Gurukul Sanskrit Mahavidyalaya, Varanasi and another Versus Vice Chancellor, Sampurnanand Sanskrit University and others.
(e) Judgment of Central Administrative Tribunal Allahabad Bench dated 4th July, 2003 in OA No.1375 of 2002 M.Rama Prasad Rao Vs. Union of India & Ors.
(f) Union of India Vs. Hashmukhbhai P. Raijada. (2009) 2 Supreme Court Cases 541
(g) Union of India and Others Versus Prakash Kumar Tandon
6. Counsel for the applicant submitted that in the instant case, of the four items mentioned, principles of natural justice having been violated, which is evident from the fact that the two documents which were directed by the Tribunal had not been supplied, the Tribunal may well invoke the discretionary jurisdiction and consider this OA without the alternate remedy being exhausted.
7. While the above decisions do deal with the subject matter in question, a more recent decision of the Apex Court, vide M.P. State Agro Industries Development Corpn. Ltd. v. Jahan Khan,(2007) 10 SCC 88 is more appropriate for our guidance. The Apex court has clearly stated as under:-
The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
8. We have considered the argument of the learned counsel for the applicant. The two documents which the applicant meant are (a) statement by Dr. Manoj Kumar Singh who also had participated in the inquiry as prosecution witness and (b) the original complaint from the D.R.M. on the basis of which the entire inquiry commenced. As regards (a) above, admittedly the said Dr Manoj Kumar Singh participated in the inquiry and stated that the statement given by him was under duress. The applicant had ample opportunity to cross examine the said witness and elicit from him the actual fact. This opportunity was not properly utilized. Thus in respect of the first document, there is no violation of principles of natural justice. As regards the second one, the reasons for the finding, as furnished by the Inquiry authority in his report nowhere refers to the said complaint and as such, no prejudice has been caused to the applicant in the non furnishing of the said documents. It is not out of place to mention here that in one of the OAs filed by the applicant, while dismissing the same, the Tribunal dealt with the question of furnishing copies of the documents and having held that the documents not being available, the respondents may proceed ahead with the inquiry. The applicant had not challenged the same before the higher forum.
9. Counsel for the applicant stated that certain witnesses were not examined and the same is against the principles of natural justice. This is a matter to be considered on merit to see and is not an apparent evidence of violation of the principles of natural justice.
10. Thus, none of the four situations, the existence of which alone would prompt us to invoke the discretionary jurisdiction to waive the condition of exhaustion of alternate remedy, being available in this case, we are not inclined to exercise that jurisdiction. The applicant has to exhaust alternate remedy available under the Rules.
Counsel for the applicant sincerely pleaded that in case the OA be declared as premature, the applicant may be permitted to file the appeal within the stipulated time, and since the case is pretty old, the appellate authority may be advised to consider and dispose of the Appeal as expeditiously as possible. We may agree for the same. The applicant may file his appeal as per the Rules and for reckoning the period for filing the appeal, time spent by the applicant in filing and prosecuting this OA shall be discounted. Thus, though the order of the disciplinary authority is dated 23rd September, 2010, time limit for filing of appeal shall be reckoned commencing from the date of this order. It is fairly expected that the appellate authority would accord due priority to this case, as this case is hanging fire for a substantial period (either due to earlier litigations or otherwise).
11. The OA is therefore, dismissed being premature, but subject to the above observation.
12. No cost.
Member-A Member-J
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