Punjab-Haryana High Court
Naresh Kumar Makkar vs Haryana Vidyut Prasaran Nigam Ltd. ... on 3 July, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:081854
CWP-26354-2023 (O&M)
CWP-21821-2023 (O&M) -1-
264
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
***
CWP-26354-2023 (O&M)
Date of Decision: 03.07.2024
Naresh Kumar Makkar
..... Petitioner
Versus
Haryana Vidyut Prasaran Nigam Ltd. (HVPNL)
..... Respondent
CWP-21821-2023 (O&M)
Virender Singh
..... Petitioner
Versus
Haryana Vidyut Prasaran Nigam Ltd. (HVPNL) and another
..... Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. D.S. Patwalia, Senior Advocate assisted by
Mr. Gaurav Rana, Advocate,
for the petitioner in CWP-26354-2023.
Mr. R.K. Malik, Senior Advocate assisted by
Mr. Sandeep Dhull, Advocate,
for the petitioner in CWP-21821-2023.
Mr. Puneet Jindal, Senior Advocate assisted by
Ms. Navroop Jawanda, Advocate &
Mr. Rahul Bansal, Advocate,
for the respondents.
****
JASGURPREET SINGH PURI, J. (ORAL)
1. Both the petitions are taken up together for final disposal with the consent of learned counsels for the parties since the issue involved in the 1 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -2- present cases is similar in nature.
2. Vide order dated 13.02.2024, CWP-21821-2023 was directed to be heard along with CWP-26354-2023 and that is how both the cases have been put up together today.
3. Both the petitions have been filed seeking writ in the nature of certiorari for quashing the order dated 21.09.2023 passed by the Managing Director of HVPNL by which both the petitioners were dismissed from service. So far as the petitioner, namely, Naresh Kumar Makkar in CWP- 26354-2023 is concerned, he was working as an Executive Engineer (Electrical) in the respondent-Nigam whereas the petitioner-Virender Singh was working as an Assistant Engineer (Electrical) in the aforesaid Nigam. On the basis of a complaint with regard to the allegations of theft at a workshop, an FIR was registered by the police in which one of the petitioner, namely, Virender Singh was not nominated as an accused but the other petitioner, namely, Naresh Kumar Makkar was nominated. Thereafter, the respondent-Nigam held a preliminary enquiry and on the basis of the aforesaid enquiry, the Managing Director dismissed both the petitioners from service.
4. It is a case of both the petitioners in both the petitions that the order which has been passed by the Managing Director of the respondent- Nigam was an illegal order in view of the fact that without holding any regular departmental enquiry, the services of both the petitioners were dismissed which was not only violative of the principles of natural justice, but also of the Statutory Regulations governing the service conditions of the petitioners. Various other issues have also been raised in both the petitions.
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CWP-21821-2023 (O&M) -3-
5. However, Mr. Puneet Jindal, learned Senior Counsel assisted by Ms. Navroop Jawanda, Advocate and Mr. Rahul Bansal, Advocate appearing on behalf of the respondent-Nigam raised a preliminary objection that under the Statutory Rules governing the service conditions of the respondent i.e. Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990, there is a provision for filing of an appeal against the order of dismissal and there is a further provision for 2nd appeal as well. The aforesaid provision which was also amended in the year 2012 is annexed as Annexure P-1 dated 20.04.2012 which has been attached along with CWP- 21821-2023. The aforesaid provisions of appeal and 2nd appeal are reproduced as under:-
"HARYANA VIDYUT PRASARAN NIGAM LIMITED (Regd. Office Shakti Bhawan, Sector-6, Panchkula) Tel. No. 0172-2561931-938, Fax No. 0172-2565748 Office Order No. 224/REG-22/L-III Dated: 20.04.2012 In exercise of powers conferred under Section-56 (3)
(vi) of Haryana Electricity Reforms Act, 1997 read with Electricity Act, 2003 and all other enabling powers in this behalf, the Haryana Vidyut Prasaran Nigam Limited is pleased to amend the powers delegated for inflicting minor/major punishment as contained in Regulation-4 read with Regulation-7 and 8 of HSEB Employees (Punishment & Appeal) Regulations, 1990 (applicable in HVPNL) issued vide No. 78/Reg-22/L-1 dated 13.09.1990 read with office order No. 109/REG-30/Vol-III dated 28.05.1991 by reviewing the earlier amendments issued from time to time:-
POWERS TO INFLICT MAJOR AND MINOR PUNISHMENT UPTO THE RANK OF S.E. & EQUIVALENT OFFICER 3 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -4-
Category Punishing 1st 2nd Appellate
Authority Appellate Authority
Authority
Superintending Engineer and MD Chairman Board of
equivalent officer, XEN and Directors
equivalent officer, Under
Secretary and equivalent
officer and non-technical/
technical/Accounts/Audit
officer of the rank/ status of the
above officers.
All officers up to the rank of Director/ MD Chairman
AE/ AEE and equivalent Projects
officer, Accounts Officer and
equivalent officer, Supdt. And
equivalent officer, Asstt. Law
Officer and equivalent officer
and any other non-technical/
technical/ Accounts/ Audit
officer of the rank/ status of the
above officers.
Non-gazetted staff of CAO Director/ MD
technical/ non- technical/ Finance
ministerial (Field and Head
Office)
POWERS TO INFLICT MAJOR AND MINOR PUNISHMENT
UPTO THE RANK OF C.E. & EQUIVALENT OFFICERS
Category Punishing 1st 2nd Appellate
Authority Appellate Authority
Authority
Minor Punishment
Chief Engineer and equivalent MD Chairman Board of
Directors
Major Punishment
Chief Engineer and equivalent MD Chairman Board of
Directors
The existing orders/instructions connected with the "delegation of powers to inflict major and minor punishment" are hereby superseded.
This issue in pursuance of the decision taken by the Board of Directors of HVPNL in its meeting held on 09.04.2012.
Sd/-
Deputy Secretary/Estt., for MD, HVPNL, Panchkula"
6. Mr. Puneet Jindal, learned Senior Counsel for the respondent- Nigam while pointing out the aforesaid provisions submitted that the 4 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -5- aforesaid amendment was carried out in exercise of powers under Section 56(3)(vi) of the Haryana Electricity Reforms Act, 1997 read with the Electricity Act, 2003 and all other enabling provision in this behalf and therefore, it was having a statutory force. The Haryana Vidyut Prasaran Nigam Limited amended the powers delegated for inflicting minor/major punishment as contained in Regulation-4 read with Regulation-7 and 8 of HSEB Employees (Punishment & Appeal) Regulations, 1990 (applicable in HVPNL). He submitted that for the category of Executive Engineer, the Punishing Authority is the Managing Director and the 1st Appellate Authority is the Chairman and the 2nd Appellate Authority is the Board of Directors. For the post of Assistant Engineer, the Punishing Authority is the Director/Projects and the 1st Appellate Authority is the Managing Director and the 2nd Appellate Authority is the Chairman. He further submitted that since the subject matter of the preliminary enquiry and the allegations were same, the order of punishment has been passed by the Managing Director qua both the petitioners even if the competent authority for the Assistant Engineer is the Director/Projects. He also submitted that be that as it may, the order has been passed by the Managing Director against which the appeal would lie to the Chairman as the 1st Appellate Authority and 2nd Appeal in the event of the enhancement of punishment would be Board of Directors. He submitted that so far as the petitioner-Naresh Kumar Makkar is concerned, his 1st Appellate Authority is the Chairman and instead of filing a statutory appeal before the Chairman, he has preferred the present writ petition which would therefore not be maintainable. He submitted that so far as the second petitioner-Virender Singh is concerned, since qua him 5 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -6- also the order has been passed by the Managing Director by way of a common order which is permissible, for him also the 1st Appellate Authority would be the Chairman and he has specific instructions to state that in case the petitioner-Virender Singh files an appeal before the Chairman, then the same will be considered and decided in accordance with law and notwithstanding the fact that qua him the 1st Appellate Authority is the Managing Director since the dismissal order itself has been passed by the Manager.
7. Mr. Puneet Jindal, learned Senior Counsel for the respondent- Nigam further submitted that although there is a period of limitation of 60 days under the Rules for filing the appeal but considering the fact that the petitioners have preferred the present writ petitions, they will be granted the benefit of Section 14 of the Limitation Act, 1963 and even otherwise also, he has instructions to state that the question of limitation will not be a bar for consideration of the appeal for both the petitioners and the appeal which preferred will be decided on its merits by considering all the grounds taken by the petitioners and in accordance with law as expeditiously as possible. He also submitted on instructions that not only an opportunity will be given to both the petitioners but an adequate and fair opportunity will be given to both the petitioners to put up their case in appeal on any ground whatsoever they feel to be applicable and each and every ground which is taken by the petitioners will be considered independently and will be decided in accordance with law.
CWP-21821-2023
8. Mr. R.K. Malik, learned Senior Counsel assisted by Mr. 6 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -7- Sandeep Dhull, Advocate appearing on behalf of the petitioner-Virender Singh submitted that in view of the specific statement made by the learned Senior Counsel for the respondent-Nigam, he may be permitted to withdraw the present petition in order to enable him to file a Statutory Appeal before the Chairman of the Nigam as so stated by the learned Senior Counsel for the respondent. He further submitted that the petitioner-Virender Singh will file the appeal as early as possible and a direction may be issued to the respondent-Nigam to consider and decide the appeal after considering all the grounds taken by the petitioner within a period of one month, since the rights of the petitioner are being prejudicially affected due to the order of dismissal passed qua him. He also submitted that any date may be fixed to appear before the Appellate Authority so that the petitioner may appear before the Chairman for putting up his case.
9. Mr. Puneet Jindal, learned Senior counsel for the respondent- Nigam stated that he has no objection in case any date is fixed for the aforesaid purpose.
10. In view of the above, the prayer made by the learned Senior Counsel for the petitioner-Virender Singh is accepted. The present petition is dismissed as withdrawn with liberty to the petitioner-Virender Singh to file a Statutory Appeal preferrably within a period of one week from today by raising all the grounds which he deems fit including the ground that the Managing Director has wrongly or erroneously invoked the proviso under the Regulation 7(2)(d)(ii) of the Haryana State Electricity Employees (Punishment & Appeal) Regulations, 1990 for dispensation of the enquiry.
11. The petitioner-Virender Singh may file an appeal preferrably 7 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -8- within a period of one week from today. Thereafter, within a period of one week, the Chairman, who is the Appellate Authority, shall seek the comments from the concerned officers and thereafter, the petitioner shall appear before the Chairman on 29.07.2024 at 11 A.M.
12. Mr. Puneet Jindal, learned Senior Counsel for the respondent states that the Chairman will make himself available in the office on the aforesaid date and time. However, due to extreme compelling circumstances, if the Chairman is not available on the aforesaid date, then he shall inform the petitioner before hand and will fix any other date which would not be more than one week of the aforesaid date fixed. The Chairman shall not only afford an opportunity of hearing but also an adequate opportunity of hearing to the petitioner and the appeal shall be considered and decided on merits considering himself as the 1st Appellate Authority and also considering all the grounds which are taken by the petitioner in the appeal within a period of three weeks thereafter. So far as the right of 2nd appeal is concerned, the same shall also be available to the petitioner in accordance with law before the Board of Directors.
CWP-26354-2023
13. Mr. D.S. Patwalia, learned Senior Counsel assisted by Mr. Gaurav Rana, Advocate submitted that so far as the petitioner-Naresh Kumar Makkar is concerned, the punishing authority for him was the Managing Director with regard to which, there is no dispute and it is also not in dispute that as per the aforesaid Statutory Regulation, the 1st Appellate Authority is the Chairman and the 2nd Appellate Authority is the Board of Directors. He however submitted that the petitioner may not be relegated to the alternate 8 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -9- remedy of filing a Statutory Appeal in view of the fact that there is violation of principles of natural justice because regular departmental enquiry has not been conducted and it has been dispensed with and therefore, it is not necessary to relegate the petitioner to the alternate remedy of filing a Statutory Appeal and this Court can always invoke the provisions of Article 226 of the Constitution of India to interfere. He also submitted that so far as the purpose of punishing the petitioner by passing of an order of dismissal is concerned, the same was passed because he was due for a promotion and in order to scuttle his promotion, he has been victimised on the basis of false allegations and an order of dismissal has been passed against him and therefore, this Court may consider this petition on its own merits by ignoring the availability of an alternate remedy available to him.
14. Learned Senior Counsel for the petitioner also referred to the judgment of this Court passed in CWP-2-2012 titled as "Mukesh Vs. State of Haryana and others" decided on 01.08.2012 and also the judgments of Hon'ble Supreme Court in "Chief Security Officer and others Vs. Singasan Rabi Das" 1991(1) SCC 729 and "Jaswant Singh Vs. State of Punjab and others", 1991(1) SCC 362, to contend that when there is a violation of principles of natural justice on the face of it, then the High Court in exercise of its powers under Article 226 of the Constitution of India can always exercise its jurisdiction by ignoring the alternate remedy available to the petitioner.
15. I have heard the learned Senior Counsel for the petitioner as well as the learned Senior Counsel for respondents.
16. The petitioner has been dismissed by the impugned order dated 9 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -10- 21.09.2023 (Annexure P-7) passed by the Managing Director, who is the competent authority and punishing authority for the petitioner. As per the aforesaid statutory rules, against the order of dismissal, there is a statutory 1 st Appeal and thereafter, 2nd appeal is also provided regarding which even the learned Senior Counsel for the petitioner has not raised any dispute. The only submission he has made is that in the facts and circumstances of the present case, his case may not be remanded back to the Appellate Authority because of apparent violation of principles of natural justice because instead of holding a regular departmental enquiry the order of dismissal has been passed based on a preliminary enquiry which was done at the back of the petitioner and therefore, there has been a violation of principle of audi alteram partem.
17. However, Mr. Puneet Jindal, learned Senior Counsel appearing on behalf of the respondent-Nigam submitted that the aforesaid proposition of law that when there is violation of principles of natural justice, then the existence of alternate remedy can be ignored and Article 226 of the Constitution of India can be invoked, is not in dispute and it is rather a settled law that in such like situation where the principles of natural justice are violated the High Court can always exercise its jurisdiction under Article 226 of the Constitution of India. He further submitted that however the aforesaid proposition is not applicable to the facts and circumstances of the present case. To substantiate his arguments on the aforesaid preliminary objections, he submitted that Regulation 7 of the Haryana State Electricity Employees (Punishment & Appeal) Regulations, 1990 provides for a procedure for inflicting major punishment vide the aforesaid Regulation.
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The aforesaid procedure provides that a regular enquiry is to be conducted after issuance of a charge-sheet for inflicting a major penalty. However, vide Proviso (ii) of Regulation 7(2)(d) an exception has been carved out wherein it has been so provided that the provisions of the aforesaid Regulations shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge or where an authority empowered to dismiss or remove him, or reduce him in rank is satisfied that for some reasons to be recorded by him in writing it is not reasonable and practicable to give him an opportunity of showing cause against the action proposed to be taken against him, or where in the interest of the Security of the Board, it is considered not expedient to give to that person such an opportunity. He submitted that in the present case the aforesaid proviso has been invoked by the Managing Director, who is the Punishing Authority in accordance with law and a perusal of the impugned order of dismissal would show that reasons have been so stated as to why and under what circumstances the enquiry is being dispensed with to the satisfaction of the Punishing Authority and there has been a due application of mind which is so apparent from the impugned order itself. He submitted that there are various questions of fact which are involved and there will be no prejudice caused to the petitioner in case he files a Statutory Appeal which is available to him in accordance with law. He submitted that in this way it is not a case that on the face of it the principles of natural justice have been violated because of the reason that the principles of natural justice are not absolute in nature and are subject to exceptions and in the present case the exception is not a normal exception but the exception has been carved 11 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -12- out statutorily and the punishing authority has exercised its powers statutorily for making a departure from the application of the principles of natural justice including that of the Rule of audi alteram partem and therefore, the petitioner instead of filing the present writ petition ought to have invoked the alternate remedy available to him in accordance with law.
18. Learned Senior Counsel for the respondent-Nigam further submitted that in case the petitioner files an appeal which is available to him and takes up any ground including that of the ground that the punishing authority has wrongly exercised his power for invocation of the aforesaid proviso for dispensation of the enquiry, the same will also be considered by the Appellate Authority in accordance with law and the petitioner can always make such a ground that the aforesaid proviso has wrongly been invoked and therefore, the present writ petition is liable to be dismissed being non-maintainable due to the aforesaid reasons.
19. After hearing the learned counsels for the parties of the present writ petition, this Court is of the considered view that in the present case the Managing Director, who has passed the punishment order of dismissal has recorded some reasons for dispensation of the enquiry. At this stage, this Court does not wish to make any observation on the merits of the reasons so given by the Managing Director but this Court is considering the preliminary objection which has been taken by the learned Senior Counsel for the respondent. The proviso which has been invoked by the respondent-Nigam is reproduced as under:-
"7(2)(d)(ii) The provisions of the foregoing Sub- Regulation, shall may not apply where a person is 12 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -13- dismissed or removed or reduced in rank on the ground of conduct which has led to his (conviction on a criminal charge ; or where an authority empowered to dismiss or remove him, or reduce him in rank is satisfied that, for some reasons to be recorded by him in writing, it is not reasonable practicable to give him an opportunity of showing cause against the action proposed to be taken against him, or where in the interest of the Security of the Board, it is considered not expedient to give to that person such on opportunity."
20. A perusal of the aforesaid proviso would show that although a definite procedure has been provided for inflicting major punishment by holding a departmental enquiry after issuance of charge-sheet but the aforesaid procedure is not absolute in nature and it is subject to the aforesaid proviso which serves as an exception. As per the aforesaid proviso, in case the ingredients are satisfied then the enquiry can be dispensed with which has been so done in the present case. Learned Senior Counsel for the respondent-Nigam has also specifically stated that even if the petitioner has a grievance that the invocation of the aforesaid proviso was not in accordance with law and was erroneous then the same can also become a ground for filing of an appeal and the Appellate Authority shall be bound to decide the same in accordance with law.
21. Much emphasis has been laid by the learned Senior Counsel for the petitioner on the fact that once there is a violation of the principles of natural justice, then the existence of an alternate remedy can be ignored and the High Court can always exercise its jurisdiction under Article 226 of the Constitution of India. The aforesaid proposition is not in dispute nor it has 13 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -14- been so refuted by the learned Senior Counsel for the respondent-Nigam. It is a settled law that the High Court can always exercise its jurisdiction under Article 226 of the Constitution of India in given facts and circumstances of a case and the existence of an alternate remedy is not a bar for the High Court to exercise its jurisdiction in case the High Court deems it fit. However, it is only a matter of self-restraint which the High Court has to put, at least when there is a statutory remedy of appeal. Even the High Court also has to apply its mind and exercise its power in a reasonable manner and in accordance with law. So far as the parameters under which the High Court should exercise its powers notwithstanding the availability of alternate remedy is concerned, the same is so settled by the Hon'ble Supreme Court in "Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others", (1998) 8 SCC 1. It was so observed by the Hon'ble Supreme Court that the alternate remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Right or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Para Nos.15 & 16 of the aforesaid judgment is reproduced as under:-
"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would
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16. Rashid Ahmed v. Municipal Board, Kairana laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances."
22. The present case of the petitioner does not fall within the parameters as mentioned by the Hon'ble Supreme Court in the aforesaid judgment for seeking invocation of Article 226 of the Constitution of India despite availability of an alternate remedy. The argument which was raised 15 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -16- by the learned Senior Counsel for the petitioner with regard to violation of principles of natural justice is concerned, the same is not available to him in the facts and circumstances of the present case. It is also a settled law that even the principles of natural justice are not absolute in nature and they are subject to exceptions. Regulation 7 of the Haryana State Electricity Board Employees (Punishment & Appeal) Regulations, 1990 provides an eloborate procedure for infliction of a major punishment by following a procedure for holding an enquiry etc. which is in consonance with the principles of natural justice. However, the Statutory Rule itself incorporates an exception to the aforesaid procedure. In the present case, the Nigam has invoked the aforesaid exception. The learned Senior counsel for the respondent-Nigam has also specifically stated that in case the aforesaid issue with regard to the invocation of the aforesaid proviso is concerned, is raised as ground of appeal then the same shall be dealt with by the Appellate Authority and a finding will be returned by the Appellate Authority. Therefore, this Court is of the considered view that it cannot be said that there has been a violation of principles of natural justice especially in view of the fact that the aforesaid proviso is enforceable and the same is not under challenge in the present writ petition.
23. Apart from the above, it is also a case of learned Senior Counsel for the petitioner that the petitioner has been victimised because he was due for promotion and in order to scuttle his promotion, an order of dismissal has been passed, the same is also a disputed question of fact and it is not a case where any specific personal mala fide has been alleged against any officer in the present petition. The only allegation which reflects from the petition is in 16 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -17- Para Nos.25 & 28(ix). However, a perusal of the same would show that a vague and general allegation has been made in this regard and therefore, would not satisfy the test of personal or institutional bias because the same are not against any particular officer nor any officer has been named in the present petition nor has any officer been impleaded as a party in the present petition. Therefore, there can be no such apprehension by the petitioner that in case any appeal is filed before the Appellate Authority, then he will not be heard or any adverse order will be passed against him due to aforesaid reasons.
24. Mr. Puneet Jindal, learned Senior Counsel for the respondent- Nigam during the course of arguments also referred to the judgments passed by the Hon'ble Supreme Court in "State of Maharashtra and others Vs. Greatship (India) Limited", AIR 2022 Supreme Court 4408 to contend that when the disputed question of facts are involved then in that situation, the High Court should not interfere under Article 226 of the Constitution of India. Para Nos.7, 8 & 9 are reproduced as under:-
7. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, by- passing the statutory remedies.
8. Now so far as the reliance placed upon the decisions of this Court by the learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of assessment by-passing the 17 of 19 ::: Downloaded on - 21-07-2024 08:40:13 ::: Neutral Citation No:=2024:PHHC:081854 CWP-26354-2023 (O&M) CWP-21821-2023 (O&M) -18-
statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by- pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions.
9. In view of the above and in the facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner-assessee to avail the statutory remedy of appeal and thereafter to avail other remedies provided under the statute."
25. Learned Senior Counsel for the respondent-Nigam also referred to a judgment of Hon'ble Calcutta High Court passed in "Union of India and others Vs. Sahadeo Singh and others", 1996(2) SCT 844 and submitted that the aforesaid judgment was also assailed before the Hon'ble Supreme Court and the SLP was dismissed.
26. In view of the aforesaid facts and circumstances, this Court is of the view that the present petition is not maintainable and is hereby dismissed in view of existence of an alternate remedy available to the petitioner for filing of an appeal. The petitioner shall be at liberty to file an appeal in accordance with the aforesaid Regulations and in accordance with law.
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27. Since the main petition has already been disposed of, all the pending applications stand disposed of.
03.07.2024 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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