Central Administrative Tribunal - Allahabad
Khwaja Baksh vs D/O Post on 19 February, 2025
O.A. No.330/1044 of 2012
(Reserved)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Pronounced on 19th day of February, 2025
Original Application No.1044 of 2012
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Mr. Anjani Nandan Sharan, Member (Administrative)
Khwaja Bux, S/o Sri Rasool Baksh, R/o Bangalipura, in Ali
Ahmad House, District Banda
....Applicant
By Advocate: Mr. Vinod Kumar
VERSUS
1. Union of India through Secretary, Ministry of Postal, Dak
Bhawan, Sansad Marg, New Delhi
2. Superintendent, Rail Mail Service X-Division, Divisional
office, Jhansi
3. Shri Vinod Kumar Gupta, posted as Superintendent of Rail
Mail Service, X-Division, Divisional Office, Jhansi
PUNIT KUMAR
MISHRA 4. Senior Record Officer, Rail Mail Service, X-Division, Banda
...... Respondents
By Advocate: Shri Praveen Kumar Shukla
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):-
Heard Shri Vinod Kumar, learned counsel for the applicant and Shri Praveen Kumar Shukla, learned counsel for the respondents in both the cases at the time of hearing.
2. Though the matter was heard along with O.A. No.1541/2013, but for better appreciation of the matter, the case is being disposed of separately.
Page 1 of 13O.A. No.330/1044 of 2012
3. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
I. For quashing the impugned order of recovery dated 25.06.2012.
II. For a direction upon the respondents to refund all the recovered amount along with interest @ 24 %. III. To pass any such order as deem fit and proper as per facts and circumstances of the case with all consequential benefits.
IV. To award cost of the petition in favour of the applicant."
4. The brief facts as apparent from the Original Application is that the applicant was transferred from Jhansi to Banda vide transfer order dated 25.01.2008 and joined at Banda. According to the applicant, he stayed in Ali Ahmad House at Bangalipara Banda since February 2008 alongwith his family on rent. An affidavit /rent deed was executed between applicant and landlord namely Ali Ahmad. However, the respondents started recovery of Rs. 1000/- from the salary of the applicant and stopped payment of House Rent Allowance (hereinafter referred PUNIT KUMAR MISHRA as 'HRA') to him since April 2009 without giving him any show cause notice and opportunity of hearing.
4.1. Aggrieved by the same, the Applicant made representations to the respondents questioning aforementioned recovery from his salary, but respondents did not respond. Accordingly, the applicant earlier filed O.A. No. 1316 of 2009 before this Tribunal, which was disposed of vide order dated 12.11.2009 allowing the applicant to file a comprehensive and detailed fresh representation before the Competent Authority within a period of two weeks from the date of receipt of such order and directing the Competent Authority to decide such representations, if any, by passing a detailed, reasoned and speaking order within a period of 12 weeks from the date of receipt of the representation. Till the disposal of the representation, the recovery against the applicant was stayed. In Page 2 of 13 O.A. No.330/1044 of 2012 compliance of the aforementioned order, applicant made a representation dated 20.11.2009 to respondents. Said representation was disposed of by respondents vide order dated 15.2.2010, by which a recovery of Rs.12,036/- was directed to be recovered from the applicant's salary.
4.2 Against which, applicant filed Original Application No.1081/2010 before this Tribunal and this Tribunal vide order dated 29.04.2011, set aside the recovery order dated 15.02.2010. In view thereof, the respondent refunded the recovered amount of Rs.12036/- to the applicant. Thereafter, the applicant made an application on 24.09.2011 for grant of interest on the recovered amount. Thereafter, a charge-sheet dated 10.01.2012 was issued against the applicant and reopened the case of the applicant, which was already set aside by this Tribunal in O.A. No.1081/2010.
4.3 In view thereof, the applicant filed his reply on 11.02.2012. However, the respondent-2 without considering the reply of the applicant and order of this Tribunal dated 29.04.2011 passed in O.A. No.1081/2010 passed the order dated 25.06.2012, wherein a recovery of Rs.16000/- from the salary of the applicant PUNIT KUMAR MISHRA in 16 instalment by deducting Rs.1000/- per month from the salary of the applicant. The said order dated 25.06.2012 is impugned in this Original Application.
5. On the other hand, counter reply was filed on 09.11.2012, the applicant had joined at Banda RMS on 25.1.2008 and was allowed to stay in Tiffin Room by Sub Record Officer, Banda on humanitarian ground for some time due to unavailability of his own accommodation and he was also directed to vacate the Tiffin Room within a week, but the applicant occupied the said Tiffin Room up to April, 2009. When the Tiffin Room was not vacated by the applicant, the staff of the Sub Record Officer, Banda took up the matter through the Divisional Secretary, All India Union R-III vide letter dated 12.01.2009. Accordingly, the matter was enquired through Assistant Superintendent Rail Mail 'X' Dn. Jhansi and as per inquiry report dated 27.01.2010, the Page 3 of 13 O.A. No.330/1044 of 2012 applicant was found in occupation of Tiffin Room of Banda RMS from 25.01.2008 to April, 2009, 5.1. In view of the illegal occupation of Tiffin Room, HRA for the aforesaid period was ordered to be recovered from the applicant. Against which, OA No.1316/2009, which was disposed of vide order dated 12.11.2009, directing the respondents to decide the representation of the applicant. Thereafter, the respondents decided the representation of the applicant vide order dated 15.02.2010. Said order was also challenged by the applicant in O.A. No.1081/2010, by which this Tribunal vide order dated 29.04.2011 set aside the order dated 15.02.2010. Thereafter, the applicant was also refunded the recovered amount.
5.2 Since the applicant was found in occupation of Tiffin Room unauthorizedly w.e.f. January, 2008 to April, 2009 as per inquiry report, therefore, the applicant violated the provisions of Rule-3 of Central Civil Services (Conduct ) Rule, 1964, for which, a disciplinary action was taken against the applicant and he was awarded punishment of recovery amounting to Rs.16,000/- to be recovered from his pay @ Rs.1000/- per month vide order dated PUNIT KUMAR MISHRA 25.06.2012. Hence, instant Original Application is liable to be dismissed.
6. In reply, rejoinder affidavit has been filed by the applicant on 21.01.2022, wherein, reiterating the averments as made in Original Application. However, it is stated that the complainant was never examined during the inquiry proceeding and as such, entire proceeding stands vitiated.
7. Supplementary counter affidavit has also been filed by the respondents on 28.03.2022, wherein reiterated the same averments as made in earlier counter affidavit.
8. Mr. Vinod Kumar, learned counsel for the applicant assailed the impugned order dated 25.06.2012 on the ground that there is no order regarding the stay of the applicant in Tiffin Room and if the permission was granted by the Sub Record Page 4 of 13 O.A. No.330/1044 of 2012 Officer for staying the applicant in Tiffin Room, he should also be prosecuted in the matter. During the inquiry proceeding, complainant was never examined and false statement were obtained by the Group 'D' employees under the threat by the inquiry agency and as such, entire proceedings stands vitiated. The Disciplinary Authority has failed to consider the rent deed/ affidavit as submitted by the applicant. No proper inquiry was conducted by the Inquiry Officer. The charges were not supported by the sole complainant himself.
9. On the other hand, learned counsel for the respondents vehemently opposed the contention of the learned counsel for the applicant and submitted that the Disciplinary Authority after considering the inquiry report has already passed a speaking order, there is no illegality or infirmity in the impugned order. The applicant has committed mis-conduct by unauthorized stay in Tiffin Room and as per inquiry report also, the applicant was found in occupation of the said room. The applicant has directly approached this Tribunal against the order of Disciplinary Authority without availing the alternative remedy. Hence, instant Original Application is liable to be dismissed. PUNIT KUMAR MISHRA
10. We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
11. From perusal of the records, it appears that impugned order has been passed by the Disciplinary Authority after conclusion of the departmental proceeding on the basis of inquiry report. Against which a departmental appeal lies. Admittedly the applicant has alternative remedy before Appellate Authority, but the applicant directly rush to this Tribunal without availing the same. Rule 23 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 provide for filing an appeal to the next higher Authority. Right of appeal is a substantive right and without availing the same, the applicant approached this Tribunal, challenging the order dated 25.06.2012. It is settled law that when an alternative remedy is available, without availing the same, the Court would be slow in entertaining the applications Page 5 of 13 O.A. No.330/1044 of 2012 directly. Similar issue fell for consideration before the Apex Court in case of The State of Maharashtra & Ors. Vs. Greatship (India) Limited), reported in 2022 0 Supreme (SC) 948, wherein it has been held as under:-
6. We have heard the learned counsel for the respective parties at length.
At the outset, it is required to be noted that against the assessment order passed by the Assessing Officer under the provisions of the MVAT Act and CST Act, the assessee straightway preferred writ petition under Article 226 of the Constitution of India. It is not in dispute that the statutes provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal. In that view of the matter, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act. At this stage, the decision of this Court in the case of Satyawati Tondon (supra) in which this Court had an occasion to consider the entertainability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under:
"49. The views expressed in Titaghur Paper Mills Co. Ltd. PUNIT KUMAR MISHRA vs. State of Orissa (1983) 2 SCC 433 were echoed in CCE v. Dunlop India Ltd. (1985) 1 SCC 260 in the following words: (SCC p. 264, para 3) "3. ... Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute.Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."Page 6 of 13
O.A. No.330/1044 of 2012
50. In Punjab National Bank v. O.C. Krishnan (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed: (SCC p. 570, paras 5-6) "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short „the Act‟). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.
6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence PUNIT KUMAR MISHRA demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
51. In CCT v. Indian Explosives Ltd. [(2008) 3 SCC 688] the Court reversed an order passed by the Division Bench of the Orissa High Court quashing the show-cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy.
52. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under: (SCC pp. 175-76) Page 7 of 13 O.A. No.330/1044 of 2012 "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.
30. The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factors.
PUNIT KUMAR MISHRA The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."
53. In Raj Kumar Shivhare v. Directorate of Enforcement [(2010) 4 SCC 772] the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Page 8 of 13 O.A. No.330/1044 of 2012 Constitution could be invoked. After examining the scheme of the Act, the Court observed: (SCC p. 781, paras 31-32) "31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum."
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 PUNIT KUMAR MISHRA 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 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.
Page 9 of 13O.A. No.330/1044 of 2012
12. Further even where the matter had remained pending before the Court for substantial period there was nothing wrong or illegal in relegating the party to approach the Appellate Authority provided under the statue. There can be no issue that the Appellate Authority would be having wider scope and jurisdiction as compared to this Court and therefore, apparently no prejudice can be caused to the applicant. Similar issue fell for consideration before the Apex Court in case of Genpact Pvt.Ltd. v. Deputy Commissioner of Income Tax and anr. [2019 KHC 7167], the Apex Court held as under:-
16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in S.115QA were initially confined only to those covered by S.77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large.
PUNIT KUMAR MISHRA In State of U.P. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti and others, 2008 (12) SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under:
"38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari, (AIR 1992 All 331 (Suresh Chandra Tewari vs. District Supply Officer)), that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p.
331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the Page 10 of 13 O.A. No.330/1044 of 2012 ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed."(emphasis supplied) Even otherwise, the learned Judge was not right in law.
True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Art.226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner."
13. In view of the above, it is crystal clear that the Apex Court has held that it is neither the legal position nor a proposition PUNIT KUMAR MISHRA that once a petition is admitted, it cannot be dismissed on the ground of an alternative remedy. The Apex Court in an unambiguous manner observed that it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. The Apex Court observed that if such bald contention is upheld, even the Apex Court cannot order the dismissal of the writ petition, which ought not to have been entertained by the High Court under Article 226 of the Constitution of India in view of the availability of alternative and equally efficacious remedy to the aggrieved party once the High Court has entertained a writ petition, albeit wrongly and granted the relief to the petitioner.
14. Therefore, in the light of the above authoritative decisions of the Apex Court, it is observed that it cannot be held Page 11 of 13 O.A. No.330/1044 of 2012 that once an Original Application is admitted and an interim order is passed, simply because several years elapsed after the admission of the Original Application, the question of maintainability cannot be raised or decided. Usually, in Original Applications, interim orders are passed at the admission stage. At that time, there may not be an appearance for the respondents in all the cases. This Court is admitting an Original Application based on prima facie finding. Prima facie finding regarding the maintainability of the Original Application cannot be taken advantage of by the applicant at the time of the final hearing especially because it is a finding without hearing the other side. The respondents in the Original Applications are free to raise the question of maintainability based on the argument that there is an alternative remedy, even at the time of final hearing also. The Original Application is pending before this Court for a long time after the admission is not at all a bar in raising that question or deciding that question at the time of final hearing. Of course, this is a matter to be decided by the court concerned considering the facts and circumstances of each case. There cannot be any straight jacket formula on this issue. Each case has to be decided PUNIT KUMAR on the basis of facts in that case. But it is to be declared that, MISHRA simply because an Original Application is admitted and a stay is granted at the admission stage, there is no rule that the question of maintainability in the light of alternative remedy available cannot be raised at a later stage of hearing the Original Application, even if several years elapsed after the admission of the case.
15. Further, when such a hierarchy of Forum is mentioned in Central Civil Services (Classification, Control and Appeal) Rules, this Court need not entertain an Original Application filed challenging the orders passed by the Disciplinary Authority.
16. In view of the above discussions, even though an stay order was granted by this Tribunal in favour of the applicant vide order dated 06.08.2012 and the matter is pending since long, Page 12 of 13 O.A. No.330/1044 of 2012 instant Original Application is liable to be dismissed on the ground of maintainability and is accordingly, dismissed. However, The applicant is relegated to avail the statutory remedy of appeal and other remedies available under the CCS (CCA) Rules, 1965. It is directed that if such a remedy is availed within a period of four weeks from today, the appellate authority shall decide and dispose of the same on its own merits in accordance with law without raising any question of limitation, however, subject to fulfilling the other conditions, if any, under the Rules, 1965. It is made clear that we have not expressed any opinion on the merits of the case in favour of either of the parties and it is for the appellate authority and/or appropriate authority to consider the appeal/proceedings on its/their own merits.
17. All MAs pending in this O.A. also stand disposed off.
18. No order as to costs.
(Anjani Nandan Sharan) (Justice Rajiv Joshi) Member(Administrative) Member (Judicial) PUNIT KUMAR MISHRA PM/ Page 13 of 13