JUDGMENT
S.S. Sodhi, C.J.
1. When an effective alternative remedy is available, the long established and well settled rule of the Court, in its writ jurisdiction is relegating the petitioner to such alternative remedy, and more so where the relief claimed is founded upon disputed questions of fact stands out in bold relief here – by its breach.
2. On July 11, 1989, when the respondent held the post of Co- operative Supervisor, the impugned order was passed holding him guilty of having embezzled a sum of over Rs. 6 lakhs odd, and as a consequence he was removed from service and the said sum was directed to be recovered from him. It is this order which he sought to challenge in writ proceedings.
3. There was admittedly the alternative remedy of filing an appeal against the impugned order available to the respondent under Regulation 70 of the Co-operative Federal Authority Business Regulations, 1976 framed by the U.P. Co-operative Union. Before the learned Single Judge an objection was raised to the maintainability of this Writ petition on the ground that this alternative remedy of appeal was available to the respondent. This was negatived with the observations:
“The alternative remedy is not an absolute bar in exercise of the jurisdiction by the High Court under Article 226 of the Constitution of India. The exercise of the jurisdiction by the High Court would depend on the facts and circumstances of a particular case.”
The learned Judge went on to say:
“The punishment imposed on the petitioner is said to have been passed in violation of principles of natural justice and against the provisions of law. If the petitioner succeeds in proving that the he was punished at his back without affording any opportunity to him, his petition cannot be thrown out summarily on the ground of the bar of alternative remedy.”
4. What prevailed with the learned Single Judge was the plea of the respondent that the enquiry conducted against him was held behind his back in violation of the principles of natural justice and without affording him an opportunity to explain the charges levelled against him. It was also held that the respondent had demanded copies of documents and also permission to inspect the record which was declined, and the enquiry held was, therefore, vitiated and void ab-initio.
5. In dealing with this matter, what deserves to be highlighted, at the very outset, is that disputed questions of fact were raised in the petition, namely whether the respondent had been given notice of the enquiry and had not appeared before the enquiry officer despite receipt of notice and then again whether he had applied for inspection of documents and copies thereof. All this had been denied by the appellants. These were clearly matters to be decided in the appeal, but not in writ proceedings. The learned single Judge, however, proceeded to adjudicate upon these facts,
6. The appellants had categorically put forth the plea that registered notices had been sent to the respondent but he did not appear during the enquiry. The learned single Judge negatived it by holding.
“….. There is an affidavit against affidavit. The contention of learned counsel for the respondents could not be believed if he would have taken this Court into confidence by placing the relevant documents on record showing that the notices to the petitioner were issued by registered post. The respondents could have produced postal receipts or acknowledgement from even despatch register of the department in which entry to this effect was to be made. It was necessary that the person who had allegedly posted the registered notices should have filed an affidavit stating that he had done the needful and if the petitioner did not appear before the enquiry officer then it could be presumed that he had not appeared despite receipt of registered notice. There is presumption that registered letter must have reached its destination in due course of time but there is no presumption that registered notices must have been posted and dispatched. That was to be proved by filing affidavit or by some other proof which was in possession of the respondents…….”.
It was thereafter held that the version of the appellants that registered notices had been sent to the respondent could not be accepted.
7. An aspect of material significance here is that no opportunity was afforded to the appellants to adduce evidence in support of the plea taken by them nor indeed was the record called for. It must, therefore, be observed that the learned single Judge clearly fell in error in seeking to adjudicate upon disputed questions of fact.
8. Such being the circumstances, we cannot but set aside the impugned judgment of the learned single Judge. Keeping in view, however, the interests of justice, we relegate the respondent to his remedy of appeal under Regulation 70 of the relevant Regulations. In doing so, we also direct that if the appeal is filed by the respondent on or before August 22, 1994, no objection shall be raised with regard to limitation and the appeal shall be decided by the appellate authority on merits.
The Special Appeal is disposed of in these terms.