# Naipal Singh v. U.P. Housing & Development Board & Anr

- **Citation:** (2023) 7 ILRA 1287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-29
- **Case number:** Writ-A No. 2000885 of 2005
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naipal-singh-v-u-p-housing-development-board-anr-50370
- **Pages:** 37

## Headnote

R.K.Mehrotra,
Anurag
Srivastava,
Mahesh
Chandra, Manoj Singh, O P Srivastava, Puneet
Chandra

Subject: Service Law - Disciplinary Proceedings
- Financial Irregularities - Dismissal - Natural
Justice
An Executive Engineer with the U.P. Housing
Development
Board,
was
dismissed
on
29.07.2004, two days before his retirement,
following a 2002 audit report alleging financial
irregularities in construction work at Ambedkar
Nagar. A charge sheet with eight charges was
issued on 30.07.2002. The petitioner alleged
non-supply
of
documents,
hindering
his
defense. Two charges were found proved, and a
show
cause
notice
was
published
in
newspapers due to his unavailability. The
inquiry report was provided on 20.07.2004,
and
dismissal
followed.
The
petitioner
challenged the order, alleging procedural
lapses,
bias,
and
disproportionate
punishment.
The
case
reinforces
that
disciplinary proceedings must adhere to
natural justice but upheld the dismissal when
evidence supports charges and the delinquent
admits guilt, even partially. It also clarifies
that publication of a show cause notice can
suffice when personal service is not possible.

List of Cases cited:

## Text

_Characters 0–39,927 of 119,630. This is a partial read: ask again with offset=39927 for what follows._

7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1287
could have turned the tables in their favour.
Nor has any error apparent on the face of
the record been brought out by them.

36. Thereafter an application for
review was made on 3-4-1979. If there was
some error apparent in the order dated 213-1979 surely the same should have been
pointed out In the first review application
which was made on 3-4-1979, but in fact,
the petitioner has claimed a right to move
successive review applications. 4. Such a
right cannot be allowed to him. Barlier the
review application was rejected by the trial
court
then
the
petitioner
filed
an
infructuous revision, thereafter, he filed a
writ petition and lastly be filed the instant
second review application.

42. Apart from the same, this Court
also in the case of Irtaza Ali Vs. The
District Judge Moradabad and others
reported in (1982) 2 ARC 514 held that
successive review applications are not
maintainable even though the earlier review
application was dismissed as infructuous.
The relevant paragraph is reproduced
below:-

"Thereafter an application for
review was made on 3-4-1979. If there was
some error apparent in the order dated 213-1979 surely the same should have been
pointed out In the first review application
which was made on 3-4-1979, but in fact,
the petitioner has claimed a right to move
successive review applications.

4. Such a right cannot be allowed
to him. Barlier the review application was
rejected by the trial court then the
petitioner filed an infructuous revision,
thereafter, he filed a writ petition and lastly
be
filed
the
instant
second
review
application."Hence the second review
petition is not maintainable on the same
ground.

43. In this view of the matter, we are
of the firm opinion that the present review
application filed by the petitioner is being
the second review application is not
maintainable. The review application has
been filed to misuse the process of law and
process of Court, hence the same is liable
to be dismissed with exemplary costs.

44. In view of the above discussion
made hereinabove, the present review
application is dismissed on merits as
review proceedings cannot be equated with
the original hearing and a review is by no
means as appeal in disguise whereby an
alleged erroneous decision is reheard and
corrected.

45. Present review application being
second review application for the same
cause of action is rejected on the ground of
maintainability as well.

46.

Accordingly,
this
review
application stands rejected with a cost of
Rs. 50,000/(Rs. Fifty Thousand), which the
applicant shall deposit with the Registrar
General of this Court within a period of one
month from today. On deposit of such cost,
it shall be transmitted to the account of
'High Court Legal Services Committee,
Allahabad'.
----------
(2023) 7 ILRA 1287
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.05.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2000885 of 2005

Naipal Singh ...Petitioner
Versus
U.P. Housing & Development Board & Anr.
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
 ...Respondents

Counsel for the Petitioner:
Sri Ravindra Kumar, Gaurav Mehrotra, K.N.
Vishwakarma, Rani Singh, Ravindra Kumar

Counsel for the Respondents:
R.K.Mehrotra,
Anurag
Srivastava,
Mahesh
Chandra, Manoj Singh, O P Srivastava, Puneet
Chandra

Subject: Service Law - Disciplinary Proceedings
- Financial Irregularities - Dismissal - Natural
Justice
An Executive Engineer with the U.P. Housing
Development
Board,
was
dismissed
on
29.07.2004, two days before his retirement,
following a 2002 audit report alleging financial
irregularities in construction work at Ambedkar
Nagar. A charge sheet with eight charges was
issued on 30.07.2002. The petitioner alleged
non-supply
of
documents,
hindering
his
defense. Two charges were found proved, and a
show
cause
notice
was
published
in
newspapers due to his unavailability. The
inquiry report was provided on 20.07.2004,
and
dismissal
followed.
The
petitioner
challenged the order, alleging procedural
lapses,
bias,
and
disproportionate
punishment.
The
case
reinforces
that
disciplinary proceedings must adhere to
natural justice but upheld the dismissal when
evidence supports charges and the delinquent
admits guilt, even partially. It also clarifies
that publication of a show cause notice can
suffice when personal service is not possible.

List of Cases cited:

1. M/s Magadh Sugar & Energy Ltd. Vs St. of
Bihar & ors.Civil Appeal No. 5728 of 2021

2. Whirlpool Corp. Vs Registrar of Trade Marks
Citation: (1998) 8 SCC 1

3. Rajendra Prasad Upadhyaya Vs St. of U.P. &
ors.Citation: (2012) 93 ALR 403 (All), Durga
Enterprise (P) Ltd. Vs Principal Secretary, Govt.
of U.P. & ors.Citation: (2004) 13 SCC 665

4. St. of U.P. & ors.Vs Saroj Kumar Sinha
Citation: (2010) 2 SCC 772

5. Roop Singh Negi Vs Punjab National Bank
Citation: (2009) 2 SCC 570

6. Radhey Kant Khare Vs U.P. Cooperative Sugar
Factories Federation Ltd. : (2002) SCC Online All
1575

7. Smt. Mazda Begum & ors.Vs St. of U.P. &
ors.: (2017) SCC Online All 2909

8. Moni Shankar Vs U.O.I. & ors.: (2008) 2 SCC
484

9. M.VS Bijlani Vs U.O.I. & Ors.: (2006) 5 SCC
88

10. Chamoli District Cooperative Bank Ltd. Vs
Raghunath Singh Rana : (2016) 12 SCC 204

11. Smt. Chinta Yadav Vs St. of U.P. &
ors.Citation: (2008) SCC Online All 2125

12. Subhas Yadav Vs St. of U.P. & ors.Citation:
(2008) SCC Online All 2121

13. S.R. Tewari Vs U.O.I. & anr.Citation: (2013)
6 SCC 602

14.
Union
Bank
of
India
Vs
Bodupalli
Gopalaswami Citation: (2011) 13 SCC 553

15. Charanjit Lamba Vs Commanding Officer,
Army Southern Command & ors.Citation: (2010)
11 SCC 314

16. Chairman-cum-Managing Director, Coal India
Ltd. Vs Mukul Kumar Choudhuri & ors.Citation:
(2009) 15 SCC 620

17. Dinesh Kumar Verma Vs St. of U.P. &
anr.Citation:
Writ-A
No.
20837
of
2020,
Judgment dated 24.03.2022

18. Prakash Chandra Agarwal Vs St. of U.P. &
anr.Citation: Writ-A No. 2555 of 2022, Judgment
dated 07.05.2022

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Gaurav Mehrotra,
learned counsel for the petitioner and Sri
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1289
Puneet Chandra, learned counsel for the
respondent(s).

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
certiorari quashing the impugned dismissal
order
dated
29.07.2004
passed
by
respondent No.2 contained as Annexure-1
to the writ petition with a further prayer to
issue a writ, order or direction in the nature
of mandamus commanding the respondents
to pay all benefits including post-retiral
benefits to the petitioner.

3. Brief facts giving rise to the present
writ petition are as under:

Sr.
No
.
Relevant Facts of the Case
a.
The petitioner was appointed as
Assistant Engineer vide order dated
08.07.1970. In the year 1982, he was
confirmed
on
the
said
post.
Subsequently, he was promoted on
the post of Executive Engineer in
U.P. Housing Development Board
(for short, "Board").
b.
In
the
year
1996,
the
State
Government created a new district,
namely, Ambedkar Nagar and the
Board was given the work of
constructing Collectorate Building.
In pursuance thereof, a construction
unit was established in the year
1996-97 and the petitioner was
posted as Project Manager for the
aforesaid unit.
c.
In the year 2002, an inspection was
made
by
Sri
R.N.
Goel,
Superintending
Engineer,
Lok
Nirman Vibhag, U.P., who inspected
the deposit work done by the
petitioner as a Project Manager. The
Superintending
Engineer
without
seeking reply from the petitioner,
submitted his report vide letter dated
27.07.2002 and recommended for
initiation of departmental inquiry
against the petitioner.
d.
On 27.07.2002, on the basis of said
report departmental inquiry was
initiated against the petitioner and he
was charge sheeted. In the charge
sheet
dated
30.07.2002,
eight
charges were levelled against the
petitioner.
e.
When the petitioner did not find
necessary documents enclosed along
with charge sheet, vide letters dated
01.08.202
and
14.08.2002,
he
requested
to
supply
necessary
documents
and
demanded
measurement books, PCR files.
f.
Vide letter dated 07.10.2002, the
petitioner submitted reply to avoid
the delay, however, he mentioned
that in spite of repeated requests, no
documents have been made available
to him.
g.
Out of eight charges, two charges
have been found proved against the
petitioner.
h.
On 24.06.2004, a show cause notice
was issued to the petitioner, which
was received by him on 01.07.2004
stipulating time of 15 days to submit
reply along with relevant evidence.
i.
The petitioner submitted reply to the
said
show
cause
notice
on
07.07.2004 through registered post
and requested to supply copy of
enquiry report and conclusion report
of the board. In this regard, he also
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
moved a reminder on 14.07.2004.
j.
The petitioner received copy of
inquiry report dated 22.04.2004 on
20.07.2004.
Vide
letter
dated
19.07.2004, he was asked to submit
reply within a week.
k.
A perusal of impugned order shows
that reply of the petitioner was not
submitted within time.
l.
The news that several officers of the
Housing Board had been punished,
was published in news paper on
25.06.2004.
The
petitioner
was
General Secretary of Engineer's
Association
and
other
directly
recruited engineers.
m. The Engineers Association Evam
Diploma Engineers Association, U.P.
Avas
Evam
Vikas
Parishad,
Lucknow given a protest letter
signed by the General Secretaries
that in case of the petitioner, show
cause notice was issued to the
petitioner and reply of the same was
awaited, even then the news had
been published in daily news papers
and has also been telecasted on TV
channels.
n.
Just two days before petitioner's
retirement
i.e.
31.07.2005,
the
impugned order of dismissal was
passed against the petitioner on
29.07.2005.
o.
The petitioner made several requests
and approached the authorities for
reconsideration of the matter, but
when heed was paid to his requests,
the present writ petition has been
filed.

4. Submission of learned counsel for
the petitioners is that the impugned order of
dismissal dated 29.07.2005 is bad in law,
illegal and is violative of principles of
natural justice. He further submitted that
the entire proceeding initiated against the
petitioner is in blatant disregard of service
regulation.

5. He next submitted that the
disciplinary proceeding initiated against the
petitioner has been conducted in utter
disregard of Regulation of the Board. He
submitted that the relevant documents in
regard to charge sheet and inquiry report
were never supplied to the petitioner nor he
was allowed to inspect the same, which has
caused serious prejudice to him.

6. He further submitted that the
respondents with biased mind to oust the
petitioner from service have not supplied
relevant documents to the petitioner to
furnish proper reply and passed the
impugned order of dismissal against the
petitioner.

7. He next submitted that the inquiry
officer did not apply its own mind to the
facts and circumstances of the case and has
proceeded on the dictate of the authorities,
which is itself evident from the fact that out
of eight charges levelled against the
petitioner,
six
charges
are
baseless,
arbitrary and without assigning any reason.

8. He further submitted that the
impugned
order
of
dismissal
is
discriminatory in nature and is against the
provisions of Article 14 and 16 of the
Constitution of India.

9. He lastly submitted that the even if
the charge Nos.3 & 6 are found proved
against the petitioner, even then major
punishment awarded to the petitioner is
disproportionate to the charges, therefore,
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1291
the quantum of punishment is excessive
and arbitrary in nature. In support of his
submissions, he placed reliance upon the
following judgments:

On
the
point
that
availability
of
statutory alternative remedy is not an
absolute bar, he placed reliance upon
following judgments:
Judgment
Citation
Paragr
aphs
M/s Magadh Sugar
& Energy Ltd. vs.
The State of Bihar
and others
Judgment
and
order
dated
24.09.2021
passed
in
Civil Appeal
No.5728 of
2021
19, 20,
21,
22
& 25
Whirlpool
Corporation
Vs.
Registrar of Trade
Marks
1998
(8)
SCC 1
15, 16,
17, 18,
19,
20
& 21
Rajendra
Prasad
Upadhyaya
Vs.
State of U.P. and
others
judgment
and
order
dated
29.03.2012
passed
in
Special
Appeal
No.5827 of
2021
:
(2012)
93
ALR
403
(All)
page
Nos.23,
24,
25
& 26
On the point that if a writ petition
remained pending for a long time and
pleadings have been exchanged, the
matter
may
not
be
relegated
to
alternative
remedy,
he
has
placed
reliance upon following judgments:
Judgment
Citation
Paragr
aphs
Durga
Enterprise
(P)
Ltd.
and
another
Vs.
Principal Secretary
Govt. of U.P. and
others
(2004)
13
SCC 665
3
On the point that each charge need to be
independently and separately proved by
witnesses and oral enquiry is must, he
has placed reliance upon following
judgments:
Judgment
Citation
Paragr
aphs
State of U.P and
Ors.
Vs.
Saroj
Kumar Sinha
(2010)
2
SCC 772.
28, 29,
30, 33,
34, 35,
38, 39,
41 & 42
Roop Singh Negi
Vs.
Punjab
National Bank
(2009)
2
SCC 570
14, 15,
17 & 21
Radhey
Kant
Khare
Vs.
U.P.
Cooperative Sugar
Factories
Federation Ltd.
(2002) SCC
Online
All
1575
6, 7, 8,
9 & 22
On the point that enquiry officer is a
quasi-judicial officer and not merely a
representative of department, he has
placed
reliance
upon
following
judgment:
Judgment(s)
Citation
Paragr
aphs
Smt.
Mazda
Begum and Ors.
Vs. State of U.P.
and others
(2017) SCC
Online
All
2909
43
On the point that documents relied upon
by
enquiry
officer
/
disciplinary
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
authority needs to be provided to
delinquent employee, he has placed
reliance upon following judgment:
Judgment(s)
Citation
Paragr
aphs
State of U.P. and
Others Vs. Saroj
Kumar Sinha
(2010)
2
SCC 772
24,
29
& 31
• On the point that courts exercising
power of judicial review are entitled to
consider as to whether relevant pieces of
evidence have been taken into account or
not, he has placed reliance upon
following judgment:
Judgment(s)
Citation
Paragr
aphs
Moni Shankar Vs.
Union of India and
others
(2008)
2
SCC 484
17
On the point that order based on
improper enquiry report, which is
vitiated
due
to
non-adherence
to
principles of natural justice is not
sustainable, he placed reliance upon
following judgment:
Judgment(s)
Citation
Paragr
aphs
MV
Bijlani
Vs.
Union of India
(2006)
5
SCC 88
21, 25,
26,
27
& 28
On
the
point
that
mandatory
requirement of disciplinary enquiry is
holding an inquiry, where charges are
refuted,
he
placed
reliance
upon
following judgment:
Judgment(s)
Citation
Paragr
aphs
Chamoli
District
Cooperative Bank
Ltd. Vs. Raghunath
(2016)
12
SCC 204
22.2 &
22.4
Singh Rana
On the point that in absence of reasoning
as to why the reply submitted by
delinquent employee to show cause
notice
was
not
satisfactory,
the
punishment order passed cannot sustain,
he
place
reliance
upon
following
judgments:
Judgment(s)
Citation
Paragr
aphs
Smt. Chinta Yadav
Vs. State of U.P.
and others
(2008) SCC
Online
All
2125
59,
60
& 21
Subhas Yadav Vs.
State of U.P. and
others
(2008) SCC
Online
All
2121
8 & 9
On
the
point
that
quantum
of
punishment is so disproportionate to
gravity of offence shocks the conscience
of Hon'ble Court, he has placed reliance
upon following judgments:
Judgment(s)
Citation
Paragr
aphs
S.R.
Tewari
vs.
Union of India and
another
(2013)
6
SCC 602
6,
17,
24, 25,
26, 30,
31 & 34
Union
Bank
of
India Vs. Bodupalli
Gopalaswami
(2011)
13
SCC 553
28, 30,
33, 34,
46, 47,
48 & 49
Charanjit
Lamba
Vs.
Commanding
Officer,
Army
Southern Comman
and others
(2010)
11
SCC 314
12, 13,
14 & 19
On the point that award of punishment,
which is grossly in excess to allegations
cannot claim immunity and remains
open for interference under limited
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1293
scope of judicial review, he has placed
reliance upon following judgment:
Judgment(s)
Citation
Paragr
aphs
Chairman-cumManaging Director,
Coal India Ltd. and
another Vs. Mukul
Kumar Choudhuri
and others
(2009)
15
SCC 620
18,
19
& 20
On the point that fixing date, time and
place of enquiry is must by the
disciplinary authority for proving /
disproving of charges, he has placed
reliance upon following judgments:
Judgment(s)
Citation
Paragr
aphs
Dinesh
Kumar
Verma Vs. State of
U.P. and another
judgment
and
order
dated
24.03.2022
passed
in
Writ-A
No.20837 of
2020.
5, 7, 11
& 12
Prakash
Chandra
Agarwal Vs. State
of U.P. and another
judgment
and
order
dated
07.05.2022
passed
in
Writ-A
No.2555 of
2022
4, 5, 6,
7 & 11
Sanjay Misra vs.
Director
SGPGI
and another
judgment
and
order
dated
18.09.2019
passed
in
Writ Petition
No.1192
(S/S)
of
2008
15, 16,
17 & 18
On the point that lack of efficiency or
attainment of highest standards in
discharge of duty attached to public
office would not ipso fact constitute
misconduct, he placed reliance upon
following judgment:
Judgment(s)
Citation
Paragr
aphs
Union of India and
others
Vs.
J.
Ahmed
(1979)
2
SCC 286
7, 9 &
11

10. On the other hand, learned
counsel for the respondents submitted that
the audit department submitted special
audit report, wherein financial irregularities
were found against the petitioner in deposit
work done at Ambedkar Nagar. Thereafter,
taking into consideration the audit report,
an inquiry was initiated against the
petitioner. It has been submitted that the
inquiry report has been submitted in
accordance with law by affording full
opportunity to the petitioner.

11. He next submitted that relevant
documents
relating
to
charges
were
supplied to the petitioner vide letter dated
14.07.2004. He submitted that after due
inquiry, a charge sheet containing eight
charges was served upon the petitioner on
30.07.2002 along with evidence and found
the charge Nos.3& 6 to be proved against
the petitioner.

12. He further submitted that the
petitioner himself accepted the charges
against him and made a request that he
should be awarded minor punishment,
which itself proves that the inquiry was just
and proper. He submitted that show cause
notice dated 24.06.2004 could not be
served upon the petitioner as he was not
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
available in his office / residence and his
family members have also denied from
receiving the same. Thereafter, the said
notice was published in daily news papers
Dainik Jagran and Times of India on
29.06.2004 for information upon the
petitioner.

13. He lastly submitted that the
inquiry report was based on documentary
and other evidences and on the basis of
same, the impugned order of dismissal has
been passed against the petitioner, which is
just and valid.

14. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

15. To resolve the controversy
involved in the matter, the judgments relied
upon by learned counsel for the petitioner
are being quoted below:

• Judgment relied upon by learned
counsel for the petitioner:

a) M/s Magadh Sugar & Energy Ltd.
(Supra):

19. While a High Court would normally not
exercise its writ jurisdiction under Article
226 of the Constitution if an effective and
efficacious alternate remedy is available,
the existence of an alternate remedy does
not by itself bar the High Court from
exercising
its
jurisdiction
in
certain
contingencies. This principle has been
crystallized by this Court in Whirpool
Corporation v. Registrar of Trademarks,
Mumbai 19 and Harbanslal Sahni Vs.
Indian Oil Corporation Ltd.. Recently, in
Radha Krishan Industries Vs. State of
Himachal Pradesh and Others, a two judge
Bench of this Court of which one of us was
a part of (Justice DY Chandrachud) has
summarized the principles governing the
exercise of writ jurisdiction by the High
Court in the presence of an alternate
remedy. This Court has observed:

"28. The principles of law which emerge
are that:

(i) The power under Article 226 of the
Constitution to issue writs can be exercised
not
only
for
the
enforcement
of
fundamental rights, but for any other
purpose as well;

(ii) The High Court has the discretion not
to entertain a writ petition. One of the
restrictions placed on the power of the
High Court is where an effective alternate
remedy is available to the aggrieved
person;

(iii) Exceptions to the rule of alternate
remedy arise where

(a) the writ petition has been filed for the
enforcement
of
a
fundamental
right
protected by Part III of the Constitution;

(b) there has been a violation of the
principles of natural justice; (c) the order
or
proceedings
are
wholly
without
jurisdiction; or (d) the vires of a legislation
is challenged;

(iv) An alternate remedy by itself does not
divest the High Court of its powers under
Article 226 of the Constitution in an
appropriate case though ordinarily, a writ
petition should not be entertained when an
efficacious alternate remedy is provided by
law;
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1295
(v) When a right is created by a statute,
which itself prescribes the remedy or
procedure for enforcing the right or
liability, resort must be had to that
particular statutory remedy before invoking
the discretionary remedy under Article 226
of the Constitution. This rule of exhaustion
of statutory remedies is a rule of policy,
convenience and discretion; and

(vi) In cases where there are disputed
questions of fact, the High Court may
decide to decline jurisdiction in a writ
petition. However, if the High Court is
objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily
be interfered with."

The principle of alternate remedies and its
exceptions was also reiterated recently in
the decision in Assistant Commissioner of
State Tax Vs. M/s Commercial Steel
Limited. In State of HP VS. Gujarat
Ambuja Cement Ltd., this Court has held
that a writ petition is maintainable before
the High Court if the taxing authorities
have acted beyond the scope of their
jurisdiction. This Court observed:

"23. Where under a statute there is an
allegation of infringement of fundamental
rights or when on the undisputed facts the
taxing authorities are shown to have
assumed jurisdiction which they do not
possess can be the grounds on which the
writ petitions can be entertained. But
normally, the High Court should not
entertain writ petitions unless it is shown
that there is something more in a case,
something going to the root of the
jurisdiction of the officer, something which
would show that it would be a case of
palpable injustice to the writ petitioner to
force him to adopt the remedies provided
by the statute. It was noted by this Court in
L. Hirday Narain Vs. ITO [(1970) 2 SCC
355: AIR 1971 SC 33] that if the High
Court had entertained a petition despite
availability of alternative remedy and
heard the parties on merits it would be
ordinarily unjustifiable for the High Court
to dismiss the same on the ground of nonexhaustion of statutory remedies; unless
the High Court finds that factual disputes
are involved and it would not be desirable
to deal with them in a writ petition."

20. The above principle was reiterated by a
three-judge Bench of this Court in
Executive Engineer Vs. Seetaram Rice Mill.
In
that
case,
a
show
cause
notice/provisional assessment order was
issued to the assessee on the ground of an
unauthorized use of electricity under
Section 126 (1) of the Electricity Act, 2003
and a demand for payment of electricity
charges
was
raised.
The
assessee
contended that Section 126 was not
applicable to it and challenged the
jurisdiction of the taxing authorities to
issue such a notice, before the High Court
in its writ jurisdiction. The High Court
entertained the writ petition. When the
judgement of the High Court was appealed
before this Court, it held that the High
Court did not commit any error in
exercising its jurisdiction in respect of the
challenge raised on the jurisdiction of the
revenue authorities. This Court made the
following observations:

" 81. Should the courts determine on
merits of the case or should they preferably
answer
the
preliminary
issue
or
jurisdictional issue arising in the facts of
the case and remit the matter for
consideration on merits by the competent
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
authority? Again, it is somewhat difficult to
state with absolute clarity any principle
governing such exercise of jurisdiction. It
always will depend upon the facts of a
given case. We are of the considered view
that interest of administration of justice
shall be better subserved if the cases of the
present kind are heard by the courts only
where they involve primary questions of
jurisdiction or the matters which go to the
very root of jurisdiction and where the
authorities
have
acted
beyond
the
provisions of the Act.

82. It is argued and to some extent
correctly that the High Court should not
decline to exercise its jurisdiction merely
for the reason that there is a statutory
alternative remedy available even when the
case falls in the above stated class of cases.
It
is
a
settled
principle
that
the
courts/tribunal
will
not
exercise
jurisdiction in futility. The law will not
itself attempt to do an act which would be
vain, lex nil frustra facit, nor to enforce one
which would be frivolous-lex neminem
cogit ad vana seu inutilia-the law will not
force anyone to do a thing vain and
fruitless. In other words, if exercise of
jurisdiction by the tribunal ex facie
appears to be an exercise of jurisdiction in
futility for any of the stated reasons, then it
will be permissible for the High Court to
interfere in exercise of its jurisdiction. This
issue is no longer res integra and has been
settled by a catena of judgments of this
Court, which we find entirely unnecessary
to refer to in detail..." (emphasis supplied)

21. In Union of India v State of Haryana 25
the assessing authorities imposed sales tax
on the rentals charged for supply of
telephones. Writ petitions were filed in the
High Court challenging the levy. The writ
petitions were dismissed on the ground that
an alternative remedy of a statutory appeal
was available. An appeal against these
orders was filed before this Court. The
appeal was allowed and the matter was
remanded back to the High Court for
determination since it involved a question
of law on whether the supply of telephones
amounted to sale.

22. It is not the case of the appellant that
the respondents have miscalculated the
duty and penalty imposed on it. The
appellant
contends
that
the
State
Government does not have the power to
levy tax on its sale of electricity to BSEB.
Thus, the plea strikes at the exercise of
jurisdiction by the Government. In view of
the law discussed above on the rule of
alternate remedy, the High Court can
exercise its writ jurisdiction if the order of
the authority is challenged for want of
authority and jurisdiction, which is a pure
question of law.

25. We are of the considered view that the
High Court made an error in declining to
entertain the writ petition and it would be
appropriate to restore the proceedings back
to the High Court for a fresh disposal. In
order to facilitate the decision on remand,
we have recorded the broad submissions of
the parties on merits but leave the matter
open for a fresh evaluation by the High
Court. We accordingly allow the appeal
and set aside the judgement of the High
Court dated 18 September 2017 arising out
of CWJC No 4300 of 2015. The writ
petition is restored to the file of the High
Court for fresh determination. The appeal
is disposed of in the above terms with no
order as to costs.
b) Whirlpool Corporation (Supra):
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1297
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 not
normally exercise its jurisdiction. But the
alternative remedy has been consistently
held by this 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
Rights 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. There is a plethora of case-law
on this poinit but to cut down this circle of
forensic whirlpool, we would rely on some
old decisions of the evolutionary era of the
constitutional law as they still hold the
field.

16. Rashid Ahmed Vs. 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 vs. 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.

17. A specific and clear rule was laid down
in State of U.P. v. Mohd. Nooh as under:
"But this rule requiring the exhaustion of
statutory remedies before the writ will be
granted is a rule of policy, convenience and
discretion rather than a rule of law and
instances are numerous where a writ of
certiorari has been issued in spite of the
fact that the aggrieved party had other
adequate remedies."

18. This proposition was considered by a
Constitution Bench of this Court in A.V.
Venkateswaran, Collector of Customs v.
Ramchand Sobhraj Wadhwani and was
affirmed and followed in the following
words:

"The passages in the judgments of this
Court we have extracted would indicate (I)
that the two exceptions which the learned
Solicitor General formulated to the normal
rule as to the effect of the existence of an
adequate alternative remedy were by no
means exhaustive, and (2) that even beyond
them a discretion vested in the High Court
to have entertained the petition and
granted
the
petitioner
relief
notwithstanding
the
existence
of
an
alternative remedy. We need only add that
the broad lines of the general principles on
which the Court should act having been
clearly laid down, their application to the
facts
of
each
particular
case
must
necessarily be dependent on a variety of
individual facts which must govern the
proper exercise of the discretion of the
Court, and that in a matter which is thus
pre-eminently one of discretion, it is not
possible or even if it were, it would not be
desirable to lay down inflexible rules which
should be applied with rigidity in every
case which comes up before the Court."
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Another Constitution Bench decision in
Calcutta Discount Co. Ltd. Vs. ITO,
Companies Distt. laid down:

"Though the writ of prohibition or
certiorari will not issue against an
executive authority, the High Courts have
power to issue in a fit case an order
prohibiting an executive authority from
acting without jurisdiction. Where such
action of an executive authority acting
without jurisdiction subjects or is likely to
subject a person to lengthy proceedings
and unnecessary harassment, the High
Courts will issue appropriate orders or
directions to prevent such consequences.
Writ of certiorari and prohibition can issue
against the Income Tax Officer acting
without jurisdiction under Section 34,
Income Tax Act.

20. Much water has since flown under the
bridge, but there has been no corrosive
effect on there decisions which, though old,
continue to hold the field with the result
that law as to the jurisdiction of the High
Court in entertaining a writ petition under
Article 226 of the Constitution, in spite of
the alternative statutory remedies, is not
affected, specially in a case where the
authority against whom the writ is filed is
shown to have had no jurisdiction or had
pruported to usurp jurisdiction without any
legal foundation.

21. That, being so, the High Court was not
justified in dismissing the writ petition at
the initial stage without examining the
contention that the show-cause notice
issued to the appellant was wholly without
jurisdiction and that the Registrar, in the
circumstances of the case, was not justified
in acting as the "Tribunal".

c) Rajendra Prasad Upadhyaya (Supra):

So far as the legal proposition that the
existence of alternative remedy is not an
absolute bar, it does not require any
adjudication as the law laid down by the
Supreme Court as well as this High Court
is well settled. In order to summarize the
aforesaid legal position we reiterate the
same as under-

(i) Statutory alternative remedy is not an
absolute bar for the High Court to
entertain a writ petition under Article 226
of the Constitution.

(ii) Refusal to entertain a writ petition on
existence of statutory alternative remedy is
a self imposed restriction broadly based on
following considerations, namely;

(a)
alternative
remedy
is
adequate,
efficacious and speedy.
(b) writ petitions involving complex and
disputed question of facts may be relegated
to statutory alternative forum;

(iv) If a writ petition has been entertained
despite there being a statutory remedy,
which may be adequate, and the said
petition
has
remained
pending
for
considerable long time then there would be
little
justification
for
relegating
the
petitioner to the alternative remedy, unless
there are valid and cogent reasons for
doing so.

(v) Even if there exists an adequate
alternative, efficacious speedy remedy in
the alternative forum, the High Court may
entertain the writ petition in the following
circumstances.
7 All. Naipal Singh Vs. U.P. Housing & Development Board & Anr.
1299
(a) for enforcement of any of the
fundamental rights,
(b) where there has been a violation of
principle of natural justice,
(c) where the order or proceedings are
wholly without jurisdiction, or
(d) the vires of the Act is challenged.

It will depends upon the facts and
circumstances of each case as to whether
the discretion of entertaining the writ
petition in the light of the availability of
statutory remedy has to be exercised or not.
There cannot be any straight jacket
formula or a hard and fast rule so as to
either entertain such writ petition or throw
it away at the threshold asking the
petitioner to approach the alternative
forum.

The learned Single Judge while dismissing
the writ petition on the ground of
availability of alternative remedy did not
address itself on the plea of violation of
principles
of
natural
justice
in
the
departmental enquiry and relegated the
appellant to avail departmental remedy, we
are of the considered opinion that the
impugned order requires interference. In
cases of violation of principles of natural
justice
and
denial
of
reasonable
opportunity to defend in the disciplinary
proceedings, the writ petition is fully
maintainable and it shall not be normally
dismissed on the ground of availability of
alternative remedy, as was the position in
the present case.

Since the writ petition was dismissed on the
very first date without calling for counter
affidavit, therefore, it would be appropriate
that the matter may be remanded back to
the learned Single Judge to decide the writ
petition on merit.

In this view of the matter the special appeal
is allowed and the order dated 30.1.2012
passed by the learned Single Judge in W.P.
No. 529 (SS) of 2012 is hereby set aside.
The matter is remanded back to the learned
Single Judge with a request to decide the
same on merits in accordance with law.
The parties shall appear before the writ
Court as and when the case is listed. Cost
made easy.
d) Durga Enterprise (P) Ltd. and
another (Supra):

3. The High Court, having entertained the
writ petition, in which pleadings were also
complete, ought to have decided the case
on merits instead of relegating the parties
to a civil suit.
e) State of U.P and Ors. (Supra):

28. An inquiry officer acting in a quasijudicial authority is in the position of an
independent
adjudicator.
He
is
not
supposed to be a representative of the
department/disciplinary
authority
/
Government. His function is to examine the
evidence presented by the Department,
even in the absence of the delinquent
official to see as to whether the unrebutted
evidence is sufficient to hold that the
charges are proved. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been taken into
consideration to conclude that the charges
have been proved against the respondents.

29. Apart from the above, by virtue of
Article 311(2) of the Constitution of India
the departmental enquiry had to be
conducted in accordance with the rules of
natural justice. It is a basic requirement of
the rules of natural justice that an
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
employee
be
given
a
reasonable
opportunity
of
being
heard
in
any
proceedings which may culminate in
punishment
being
imposed
on
the
employee.

30. When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal /removal from service.

33. As noticed earlier in the present case
not only hte respondent has been denied
access to documents sought to be relied
upon against him, but he has been
condemned unheard as the inquiry officer
failed to fix any date for conduct of the
enquiry. In other words, not a single
witness has been examined in support of
the charges levelled against the respondent.
The High Court, therefore, has rightly
observed that the entire proceedings are
vitiated having been conducted in complete
violation of the principles of natural justice
and total disregard of fair play. The
respondent never had any opportunity at
any stage of the proceedings to offer an
explanation against the allegations made in
the charge-sheet.

34. This Court in Kashinath Dikshita v.
Union of India had clearly stated the
rationale for the rule requiring supply of
copies of the documents sought to be relied
upon by the authorities to prove the
charges levelled against a government
servant.
In
that
case
the
enquiry
proceedings had been challenged on the
ground that non-supply of the statements of
the witnesses and copies of the documents
had resulted in the breach of rules of
natural justice. The appellant therein had
requested for supply of the copies of the
documents as well as the statements of the
witnesses at the preliminary enquiry.