Allahabad High Court
Rakesh Kumar vs State Of U.P. And Another on 15 September, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 37 Case :- WRIT - A No. - 4662 of 2022 Petitioner :- Rakesh Kumar Respondent :- State of U.P. and Another Counsel for Petitioner :- Shivendu Ojha,Prathamesh Upadhyay,Sr. Advocate Counsel for Respondent :- C.S.C.,Abhishek Srivastava Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. Heard Sri R. K. Ojha, learned Senior Advocate assited 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 judgement 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 judgement 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 judgement 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 Judgements 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 speaking order for initiation of proceedings for a retired employee, in case, the alleged misconduct is of a time when the employee was working and within four years of his date of retirement.
9. I have considered the arguments raised by the learned counsel for the parties and have carefully gone through the judgement rendered in M/s Magadh Sugar & Energy Ltd. vs. The State of Bihar & Others (Supra) where the appellant had invoked the writ jurisdiction of the High Court to challenge the imposition of Electricity Duty and penalty on the electricity that it was supplying to Bihar State Electricity Board. The appellant being a Sugar Mill Company was producing electricity out of waste of sugarcane, which it was supplying to Bihar State Electricity Board since March, 2008, under the Bihar Electricity Duty Act, 1948 as amended in 2002, which also provided that the State of Bihar could levy tax on the basis of value of units of energy consumed or sold at the rate specified by it in its notification. The appellant had challenged the notifications issued regarding rates notified by the State Government before the High Court. The High Court struck down the notifications on the ground that there were no guideline in the Statute for the notifications for construing the expression "value of energy". The State of Bihar being aggrieved filed a Special Leave Petition before the Supreme Court where the matter is pending. The State of Bihar amended the Bihar Electricity Act and defined the term "value of energy". Such amendment was challenged by the Bihar Sugar Mills Association in writ jurisdiction before the Patna High Court and the Writ Petition was pending. In the meanwhile, the fourth respondent issued notice to the appellant for failure to file returns with regard to levy of taxes and duties. The Assistant Commissioner, Commercial Tax rejected the arguments raised by the appellant that it was supplying energy to the State of Bihar. In the mean while, the National Thermal Power Corporation Limited had also filed a Writ Petition challenging the imposition of Electricity Duty on its supply of Electricity to various Electricity Boards including the Bihar State Electricity Board. The High Court held that Electricity Duty cannot be included under Section 3 (1) of the Bihar Electricity Act on a power generation company supplying Electricity to a Licensee Electricity Board. The Respondents filed Special Leave Petitions which were dismissed by the Supreme Court.
10. The High Court by its judgement dated 18.09.2018 dismissed the Writ Petition instituted by the appellant holding the liability of the appellant to file returns would require a factual determination on the nature of the supply of electricity made to Bihar State Electricity Board, and observed that the appellant should invoke statutory remedy provided in the Act. The appellant approached the Supreme Court against such order the Supreme Court in Paragraph 19 of the Judgement has observed as under:-
"19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinanly, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
(emphasis supplied)"
The principle of altemate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited. In State of HP v. Gujarat Ambuja Cement Ltd this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:
"23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies: unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition".
11. This Court finds that the Supreme Court has reiterated the long settled law as propounded by the Constitution Bench judgement in the case of N. P. Ponnuswami vs. Returning Officer 1952 SCR 218; and has observed that when a right is created by the statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This Rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition.
12. In the case of the petitioner, he has challenged the punishment order not only on grounds of violation of Principle of Natural Justice but also on merits by saying that the Inquiry Report on which such punishment order is based is completely non-speaking and has tried to convince this Court on the merits of the claim of the petitioner that he is in no way responsible for the alleged misconduct which led to the passing of the impugned order. Disputed questions of fact have been tried to be raised in this petition by means of filing affidavits including supplementary affidavit showing that the respondents themselves have acted upon the noting made on the file by the petitioner.
13. This Court in Writ jurisdiction finds itself unable to appreciate disputed questions of fact only on the basis of affidavit, more so when the matter is so technical as that of the petitioner where the charge sheet itself shows imputation malafide intention on the part of the petitioner to help M/s Gaur Sons Realty Pvt. Ltd., Gaur Sundaram Greater Noida, Gautam Budh Nagar, by giving new electricity load of 5200 KV from under Construction 220/132 KV Sub-Station, Sector 123, Noida through 33 KV independent "bay" and refers in detail to the Technical Feasibility Report and the Electricity Audit conducted, thereafter.
14. This Writ Petition is dismissed as not maintainable on account of statutory remedy of filing an appeal before the Board of Directors and the Regulation 11 of the Regulations of 2020.
15. If such an appeal is filed within three weeks from today, the Board of Directors shall not reject it on ground of delay, but shall consider and decide the same on merits.
Order Date :- 15.9.2022 Darpan Sharma