HIGH COURT OF CHATTISGARH AT BILASPUR
Writ Petition S No 4597 of 2008
1. Chandrika Prasad Sahu
2. Ramesh Kumar Uike
3. Santosh Jain
...Petitioners
Versus
1. State of Chhattisgarh
2. General Administration Committee
3. Chief Executive Officer
...Respondents
! Shri Rahul Jha, counsel for the petitioners
^ Shri Arun Sao, Govt. Advocate for the State
Honble Mr. Satish K. Agnihotri J
Dated: 28/08/2008
: Judgement
(Writ Petition under Article 226 of the Constitution of
India)
ORAL ORDER
(Passed on this 28th day of August, 2008)
With the consent of learned counsel appearing for the
parties, the matter is heard finally.
Learned counsel appearing for the petitioners submits
that the respondent-authorities have failed to understand
the purport of the order wherein before passing the
impugned order dated 23-5-2008 (Annexure P/5) as
principles of natural justice were required to be followed.
It is further contended that show cause notice was passed
on one ground and the impugned order dated 23-5-2008
(Annexure P/5) was passed on different ground. No show-
cause notice or opportunity of hearing was afforded to the
petitioners in respect of the ground, which was taken for
passing the impugned order.
2) Mr. Jha learned counsel appearing for the petitioners
relying on a decision of the Hon’ble Supreme Court in the
matter of D.K. Yadav Vs. J.M.A. Industries Ltd1, contends
that the fundamental right of the petitioners has been
infringed. Mr. Jha relies on the following passage.
“13…All matter relating to employment
include the right to continue in service
till the employee reaches superannuation
or until his service is duly terminated in
accordance with just, fair and reasonable
procedure prescribed under the provisions
of the Constitution and the rules made
under proviso to Article 309 of the
Constitution or the statutory provisions
or the rules, regulations or instructions
having statutory flavour. They must be
comformable to the rights guaranteed in
Part III and IV of the Constitution.
Article 21 guarantees right to life which
includes right to livelihood, the
deprivation thereof must be in accordance
with just and fair procedure prescribed by
law comformable to Articles 14 and 21 so
as to be just, fair and reasonable and not
fanciful, oppressive or at vagary. The
principles of natural justice are in
integral part of the guarantee of equality
assured by Article 14. Any law made or
action taken by an employer must be fair,
just and reasonable. The power to
terminate the service of an
employee/workman in accordance with just,
fair and reasonable procedure is an
essential inbuilt of natural justice.
Article 14 strikes at arbitrary action.
It is not the form of the action but the
substance of the order that is to be
looked into. It is open to the court to
lift the veil and gauge the effect of the
impugned action to find whether it is the
foundation to impose punishment or is only
a motive. Fair play is to secure justice,
procedural as well as substantive. The
substance of the order is the soul and the
effect thereof is the end result”.
3) I have heard learned counsel appearing for the
parties, perused the pleadings and documents appended
thereto.
4) In the matter of Krishan Chander Nayar Vs. The
Chairman, Central Tractor Organisation and others2, Their
Lordships of the Supreme Court in the Constitution Bench
observed as under:
“The fundamental right guaranteed by the
Constitution is not only to make an
application for a post under the
Government but the further right to be
considered on merits for the post for
which an application has been made. Of
course, the right does not extend to being
actually appointed to the post for which
an application may have been made.”
5) There is no dispute with regard to the dictum laid
down by the Hon’ble Supreme Court in the matter of D.K.
Yadav (supra) and other catena of decisions. This Court,
while considering the identical issue in a batch of matters
arising from cancellation of appointments of the Shiksha
Karmis in the matter of Ku. Punam & others Vs. State of
C.G. & Others3, held that the principles of natural
justice are required to be complied with, having regard to
the facts situation obtained therein. The purpose of
rules of natural justice is to prevent the miscarriage of
justice and the principles of natural justice are
applicable to the administrative order, if such order
effects right of a citizen. Subsequently, the similarly
situated Siksha Karmis approached this Court, who were
granted liberty to take recourse to alternative statutory
forum that may be available to them as there is appellate
provision under the Chhattisgarh Panchayat Shiksha Karmi
(Recruitment and Conditions of Services) Rules 2007.
6) On the question of availability of alternative remedy,
the Hon’ble Supreme Court in the matter of State of H.P.
and others v. Gujarat Ambuja Cement and another4, observed
as under:
“17. We shall first deal with the plea
regarding alternative remedy as raised by
the appellant State. Except for a period
when Article 226 was amended by the
Constitution (Forty-second Amendment)
Act,1976, the power relating to
alternative remedy has been considered to
be a rule of self-imposed limitation. It
is essentially a rule of policy,
convenience and discretion and never a
rule of law. Despite the existence of an
alternative remedy, it is within the
jurisdiction of discretion of the High
Court to grant relief under Article 226 of
the Constitution. At the same time, it
cannot be lost sight of that though the
matter relating to an alternative remedy
has nothing to do with the jurisdiction of
the case, normally the High Court should
not interfere if there is an adequate
efficacious alternative remedy. If
somebody approaches the High Court without
availing the alternative remedy provided
the High Court should ensure that he has
made out a strong case or that there exist
good grounds to invoke the extraordinary
jurisdiction.
21. In G. Veerappa Pilla v. Raman & Raman
Ltd., CCE v. Dunlop India Ltd; Ramendra
Kishore Biswas v. Stae of Tripura,
Shivgonda Anna Patil v. State of
Maharashtra; C.A. Abraham v. ITO, Titaghur
Paper Mills Co. Ltd. v. State of Orissa;
H.B. Gandhi vs. Gopi Nath and Sons;
Whirlpool Corpn. V. Registrar of Trade
Marks, Tin Plate Co. of India Ltd. v.
State of Bihar, Sheela Devi v. Jaspal
Singh and Punjab National Bank v. O.C.
Krishnan, this Court held that where
hierarchy of appeals is provided by the
statute, party must exhaust the statutory
remedies before resorting to writ
jurisdiction.”
7) Further, applying the said ratio in the matter of U.P.
State Spinning Co. Ltd. vs. R.S. Pandey and another5, the
Hon’ble Supreme Court observed as under:
“21. In U.P. State Bridge Corpn. Ltd. v.
U.P. Rajya Setu Nigam S.Karmachari Sangh,
it was held that when the dispute relates
to enforcement of a right or obligation
under the statute and specific remedy is,
therefore, provided under the statute,
the High Court should not deviate from the
general view and interfere under Article
226 except when a very strong case is made
out for making a departure. The person
who insists upon such remedy can avail of
the process as provided under the statute.
To the same effect are the decisions in
Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke, Rajasthan SRTC v. Krishna
Kant, Chandrakant Tukaram Nikam v.
Municipal Corpn. of Ahmedabad and in
Scooters India vs. Vijai E.V. Eldred.”
8) In another decision on the concept of maintainability
of writ petition vis–vis availability of alternative
remedy, the Hon’ble Supreme Court in the matter of Secy.
U.P. High School & Intermediate Education, Allahabad &
another v. H.K. Lal6, observed as under:
“4. From the records it is borne out that
the question asto whether the respondent
has a legal right to alter his date of
birth recorded in the certificate granted
by the Board was pending consideration
before the appellate Court. The writ
petition filed by the respondent should,
therefore, not have been entertained
particularly in view of the fact that the
appeal thereagainst was pending. Writ
jurisdiction is discretionary jurisdiction
and should not ordinarily be exercised if
there is an alternative remedy.”
9) A common thread running into the dicta laid down by
the Hon’ble Supreme Court in the aforementioned cases is
that normally the High Court should not interfere if there
is an adequate efficacious alternative remedy where
hierarchy of appeals is provided by the statute, party must
exhaust the statutory remedy before resorting to writ
jurisdiction, except when a very strong case is made out
for making a departure.
10) Applying the well-settled dicta laid down by the
Hon’ble Supreme Court on the issue of availability of
alternative remedy to the facts of the case, this petition
is dismissed as not maintainable as no strong case has been
made out for exercise of extraordinary discretionary
jurisdiction in favour of the petitioners. However,
liberty is reserved to the petitioners to take recourse to
alternative statutory forum, raising all the grounds
available to the petitioners, if so advised. No order asto
costs.
JUDGE