IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/01/2005
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
WRIT PETITION No.3431 OF 1998
Thulukanam,
S/o. Raghavan .. Petitioner
-Vs-
1. Collector,
Kancheepuram,
Kancheepuram District.
2. Deputy Registrar
(Public Distribution Scheme)
Kancheepuram District
at Kancheepuram.
3. President Vadamanipakkam
Primary Agricultural
Co-operative Bank .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus as stated therein.
For Petitioner : Mr.J.R.K. Bhavanantham
For Respondents : Mr.P.S. Jayakumar
Government Advocate
:O R D E R
Heard the learned counsels appearing for the parties.
2. In the present writ petition, the petitioner has prayed for
issuance of writ of certiorarified mandamus to quash the impugned order in
reference No.Na.Ka.4357/95 Public Distribution No.2. dated 18.10.199 7 issued
by the second respondent, which has been intimated by the third respondent as
per the order dated 6.3.1998.
3. The brief facts are as follows :-
The petitioner was appointed as a salesman in Vadamanipakkam
Cooperative Service Society. Subsequently the said Society was incorporated
as GC 2349 Vadamanipakkam Primary agricultural Co-operative Bank. The
petitioner was working in Orathi Fair Price Shop, which comes under the
control of the third respondent. Subsequently, after conducting some
inspection, it was found that rice has been sold at a price higher than the
one fixed by the Government. The second respondent by Ref.No.Na.Ka.4357/95
dated 18.10.1997 directed to take disciplinary action against the Special
Officer and the Secretary for having advised the salesman (the present
petitioner) to sell the rice at a higher price. He further directed to
suspend the salesman temporarily and recover double the amount of the sales,
i.e., Rs.82,080/-. As per the aforesaid direction, the present third
respondent issued letter dated 6.3.1998 placing the present petitioner under
suspension with effect from 6.3.1998. This latter communication, which is
obviously based on the direction given by the second respondent, is being
challenged.
4. It is not disputed that an interim order of stay was
passed by this Court and subsequently, the interim stay has been made final.
It is therefore not disputed that the petitioner is continuing as such without
being suspended.
5. Learned counsel for the petitioner has submitted that
admittedly rice was sold at a higher price on the basis of the direction
issued by the Secretary of the Vadamanipakkam Primary Agricultural Cooperative
Bank. This is apparent from the reply dated 4.2.1998, sent by the Secretary
addressed to the Deputy Registrar (Co-operative Societies), Maduranthagam. It
is also apparent from the order issued by the present Respondent No.2, wherein
in paragraph 2 it has been clearly indicated that disciplinary action may be
taken against the Special Officer and the Secretary for having advised the
salesman to sell the rice for one Rupee more per Kilo instead of selling the
rice for the price determined from 1-4-95 to 13-5-95 by the Government. In
other words, the present petitioner was sought to be suspended for having
followed the instructions issued by his superior officer. The suspension
order is passed only on the direction issued by the second respondent. In
view of the admitted fact that action of the present petitioner was based on
the direction of the superior officer, the suspension order, so far as the
petitioner is concerned, appears to be arbitrary.
6. It is no doubt true that ordinarily an order of suspension
passed in contemplation of the departmental proceedings should not be
interfered with by Court of law and more so while exercising jurisdiction
under Article 226 of the Constitution of India. However, in the present case,
apart from the fact that such suspension order has remained stayed for all
these years, in the face of the admitted fact that the alleged delinquency was
on the basis of the direction of the superior officer, it would be rather
unjust either suspend or even to initiate any action against the present
petitioner. Moreover, in paragraph 3 of the impugned direction issued by the
second respondent, a further direction has been issued for recovery of the
double the amount of the sales. It is rather surprising that even before a
departmental proceeding has been started, penalty itself has been suggested by
the second respondent. In such view of the matter, the direction contained in
paragraph 3 of the impugned direction dated 18.10.1997, issued by the second
respondent to suspend the petitioner and to recover certain amount, cannot be
sustained and liable to be quashed.
7. Learned counsel for the respondents has submitted that the
petitioner need not have rushed to the High Court against the order of
suspension as he could have filed an appeal against the impugned order and
since alternative remedy is available, the writ petition should not be
entertained.
8. Even though such a contention may prima facie appears to
be attractive, in the facts and circumstances of the present case, such a
submission cannot be accepted. Ordinarily, when alternative remedy is
available, the High Court should not entertain the matter under Article 226.
However, this rule is subject to certain well known exceptions. In the
present case, as already pointed out, the order itself appears to be wholly
arbitrary so far as the petitioner is concerned. Moreover, the writ petition
was filed in the year 1998 and has remained pending for more than six years
and it would be highly unjust to drive the petitioner to pursue his so called
appellate remedy and directing the petitioner at this stage to pursue the
alternative remedy will encourage multiplicity of proceedings.
9. Having regard to all these aspects, the writ petition is
allowed and the direction contained in paragraph 3 of the impugned direction
dated 18.10.1997, issued by the second respondent, is quashed. However, it is
made clear that quashing of such a direction would not stand in the way of
initiating any departmental proceeding against the petitioner for any other
delinquency. There would be no order as to costs.
Index : Yes
Internet: Yes
dpk
To
1. Collector,
Kancheepuram,
Kancheepuram District.
2. Deputy Registrar
(Public Distribution Scheme)
Kancheepuram District
at Kancheepuram.
3. President Vadamanipakkam
Primary Agricultural
Co-operative Bank
