# Rajendra Prasad Upadhyaya 529 (S/S) 2012 v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-03-29
- **Case number:** Special Appeal No. 73 of 2012
- **Bench:** Uma Nath Singh, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-upadhyaya-529-s-s-2012-v-state-of-u-p-and-others-42116
- **Pages:** 12

## Headnote

Sri Rajan Roy
Sri Sanjay Singh

Counsel for Respondent:
CSC

Constitution of India, Article 226-Writ
jurisdiction-alternative
remedyPunishment without following procedure
under
rules-no
proper
opportunity
claimed-can not be dismissed on ground
of alternative remedy-dismissal by Single
judge outrightly without having counter
affidavit-held not proper.

Held: Para 26

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.

## Text

260 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.03.2012

BEFORE
THE HON'BLE UMA NATH SINGH, J
THE HON'BLE RITU RAJ AWASTHI, J.

Special Appeal No. 73 of 2012

Rajendra Prasad Upadhyaya 529 (S/S)
2012

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rajan Roy
Sri Sanjay Singh

Counsel for Respondent:
CSC

Constitution of India, Article 226-Writ
jurisdiction-alternative
remedyPunishment without following procedure
under
rules-no
proper
opportunity
claimed-can not be dismissed on ground
of alternative remedy-dismissal by Single
judge outrightly without having counter
affidavit-held not proper.

Held: Para 26

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.
(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. This special appeal arises out of
the final order dated 30.01.2012 passed in
Writ Petition No. 529 (SS) of 2012
(Rajendra Prasad Upadhyaya Versus State
of
U.P.
and
others),
wherein
on
preliminary objection raised by the learned
Standing Counsel, the writ petition was
dismissed on the ground of availability of
alternative remedy to the petitioner at the
admission stage.

2. Since the grounds raised in the
appeal relates to the maintainability of the
writ petition in the background of
existence of alternative remedy, which are
purely legal in nature, thus, we have
proceeded to decide the special appeal at
the admission stage with the consent of
parties' counsel.

3. Heard Mr. Anil Tiwari, learned
Senior Advocate, assisted by Mr. Rajan
Roy, learned counsel for appellant and
Smt. Sangeeta Chandra, learned Additional
Chief Standing Counsel for State and
perused the record.

4. Sworn of unnecessary facts,
suffice is to mention that the writ petition
before the learned Single Judge was filed
against
the
punishment
order
dated
31.12.2011 challenging the punishment of
reduction in rank to the post of Chowkidar
and withholding of increment for the year
2006-07
alongwith
punishment
of
reprimand.

5. As per appellant-petitioner, he was
initially appointed as Mate in the Irrigation
Department in the year 1972 and thereafter
promoted on adhoc basis as junior clerk in
the year 1977 and confirmed on the said
post in 1978. As a consequence of re-
1 All] Rajendra Prasad Upadhyaya 529 (S/S) 2012 V. State of U.P. and others
261
structuring of the clerk cadre, the appellant
was designated and given the pay scale of
senior clerk in the year 1996. On a
complaint made by one Sri Ajay Singh, the
then President, U.P. State Employees
Union, an inquiry was held against the
appellant in the year 2009. After the
receipt of charge-sheet, the appellant had
demanded certain documents which could
not be provided to him and as such no
reply to the charge-sheet was submitted,
the inquiry officer had submitted an exparte inquiry report on the basis of which a
show cause notice was issued. The
appellant in his reply denied the alleged
charges levelled against him and the
findings of the inquiry officer and pleaded
that he was not provided adequate
opportunity of defence in the inquiry
proceedings.

6.

Moreover,
in
the
inquiry
proceedings out of five charges, three were
not found proved by the inquiry officer,
whereas the finding with regard to
remaining two charges, apparently, were
not sustainable as they were in gross
violation of Rule 9(2) and 9(4) of the U.P.
Government
Servants
(Discipline
&
Appeal) Rules, 1999 (hereinafter referred
to as the 'Rules of 1999') as well as the law
laid down by Hon'ble the Apex Court in
the cases of (i) State of U.P. vs. T.P. Lal
Srivastava (1996) 10 SCC 702, (ii) State of
U.P. vs. Saroj Kumar Sinha (2010) 2 SCC
772, (iii) Roop Singh Negi vs. Punjab
National Bank (2009) 2 SCC 570, wherein
it has been held that in case a delinquent
employee had avoided to submit reply, he
had forfeited his right to submit reply,
nonetheless the disciplinary authority is not
absolved of the duty to hold an ex-parte
enquiry to find out whether or not the
charges have been proved.

7. The arguments at considerable
length have been raised by both the parties
but the controversy revolves around the
sole question as to whether the appellantpetitioner be relegated to avail the
departmental remedy of appeal and in the
presence of such remedy, whether the writ
petition is maintainable or not.

8. The existence of alternative
remedy is not an absolute bar, is a legal
proposition, which does not require any
detailed reasons. It is also not open to
debate
that
in
case
an
alternative
efficacious remedy is available, the High
Court
normally
would
not
interfere
straight-way under Article 226 of the
Constitution of India. It is also established
principle of law that self restraint is
exercised by the High Court in dealing
with such matters, which otherwise can be
looked into by the Special Forum or
Statutory Authorities. Merely the bar in
granting any interim relief by a Special
Forum or Tribunal created for the purpose
of adjudicating such disputes would also
not be a ground in itself to permit the
aggrieved person to by-pass the alternative
remedy and to entertain the petition
straight-way in writ jurisdiction unless
there are some cogent reasons for
permitting such a challenge straight-way in
writ jurisdiction. The exceptions, however,
have been well defined by the Apex Court
as well as this Court in a number of
judgements.

9. In the case of Whirlpool
Corporation vs. Registrar of Trade Marks,
Mumbai and others, [(1998) 8 SCC], the
Supreme Court has laid down the
principles for the guidance for the High
Court in determining the forum in a matter
where efficacious alternative remedy is
available and has observed that the power
262 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
to issue prerogative writs under Article 226
of the Constitution is plenary in nature and
is not limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing
writs in the nature of Habeas Corpus;
Mandamus; Prohibition, Quo Warranto
and Certiorari, for the enforcement of any
of the fundamental rights contained in
Part-III of the Constitution but also for
"any other purpose".

10. The Supreme Court further held
that under Article 226 of the Constitution,
the High Court, having regard to the facts
of the case, has 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 following contingencies, namely,-

(i) where the writ petition has been
filed for the enforcement of any of the
Fundamental Rights;
or

(ii) where there has been a violation
of principle of natural justice; or

(iii) where the, order or proceedings
are wholly without jurisdiction; or

(iv) the vires of an Act is challenged.

11. The question with regard to
maintainability of the writ petition in
presence of an alternative remedy was
considered at length in one of the judgment
of this Court i.e. in the case of Subodh
Kumar Trivedi vs. State of U.P. and others,
[2001 (1) AWC 515]. The relevant paras of
which are quoted below:

"15. In the case of Rashid Ahmed v.
Municipal Board, Kairana, AIR 1950 SC
163, The Supreme Court observed 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 case, namely K.S.
Rashid
and
Son
v.
Income
Tax
Investigation Commissioner, AIR 1954 SC
207,
where
the
Apex
Court
while
reiterating the above proposition 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 a 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.

16. In the case of State of U.P. v.
Mohd. Nooh, AIR 1958 SC 86, a specific
and clear rule was laid down 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 legal remedies".

17. This proposition was considered
by a Constitution Bench of this Court in
A.V. Venkateswaran, Collector of Customs
v. Ramchand Sobhraj Wadhwani, AIR
1961 SC 1506, and affirmed and followed
in the following words:
1 All] Rajendra Prasad Upadhyaya 529 (S/S) 2012 V. State of U.P. and others
263

"The passages in the judgment of this
Court we have extracted would indicate (1)
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".

18. Another Constitutional Bench
decision in Calcutta Discount Co. Ltd. v.
ITO, Companies Distt., AIR 1961 SC 372,
laid down as under:

"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 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."

19. The Supreme Court in the case of
Whirlpool
Corporation
(supra),
on
consideration of various judgements has
observed as under:

"Much water has since flown under
the bridge, but there has been no corrosive
effect on these 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
purported to usurp jurisdiction without any
legal foundation."

20. In the case of Collector of
Monghyr vs. Keshav Prasad Goenka, AIR
1962 SC 1694, it was held that the High
Court has a discretion to grant relief under
Article 226 even if an alternative remedy is
available.

21. In the case of M.G. Abrol v. M/s.
Shantilal and Company, AIR 1966 SC 197,
the Supreme Court observed that the
existence of an alternative remedy does not
oust the jurisdiction of the High Court but
it is one of the circumstances to be taken
into consideration by the High Court while
exercising its discretionary jurisdiction.

22. The two exceptions of doctrine of
availability of alternative remedy were
reiterated in the case of Baburam Prakash
Chandra Maheshwari v. Antarim Zila
Parishad, AIR 1969 SC 556, namely :
264 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(i) where the proceedings are taken
under a law which is ultra vires and

(ii) the action complained of is
violative of the principles of natural
justice.

23. The Supreme Court in the case of
State of West Bengal v. North Adlai Coal
Co. Ltd. (1971) 1 SCC 309, laid down that
entertaining a writ petition without the
litigant having exhausted the alternative
remedy available to him is a rule of
practice rather than a rule of jurisdiction.
The High Court has the power to entertain
a writ petition even if the litigant has not
exhausted the remedies available to him.

24. On the question of entertaining a
writ petition when the writ petitioner
complains that the action taken is without
jurisdiction, the Supreme Court in the case
of
Dr.
(Smt.)
Kuntesh
Gupta
v.
Management
of
Hindu
Kanya
Mahavidyalaya, (1987) 4 SCC 525, held
that in such case, the writ petition was
maintainable notwithstanding the existence
of an alternative remedy.

25. Even the High Court can try
issues of fact as has been observed by the
Supreme Court in the case of Om Prakash
v. State of Haryana, (1971) 3 SCC 792,
that there is no rule that the High Court
cannot try issues of fact. In each case, the
High Court has to consider whether the
party seeking the relief has an alternative
remedy which is equally efficacious.

26. Reliance has also been placed
upon the case of M/s. Lakshmiratan
Engineering
Works
Ltd.
v.
Asstt.
Commissioner (Judicial I, Sales Tax
Kanpur Range, Kanpur and another, AIR
1968 SC 488, for defining the term
'entertain'. In this case, the Supreme Court,
while interpreting Section 9 of the U.P.
Sales Tax Act, 1948, observed as follows :

"In our opinion, these cases have
taken a correct view of the word 'entertain'
which according to dictionary also means
'admit
to
consideration'.
It
would,
therefore, appear that the direction to the
Court in the proviso to Section 9 is that the
Court shall not proceed to admit to
consideration an appeal which is not
accompanied by satisfactory proof of the
payment of the admitted tax. This will be
when the case is taken up by the Court for
the first time."

27. In the case of Devi Lal Sahu v.
Union of India, 1991 UPLBEC 480, the
order of removal from service was under
challenge against which an appeal was
provided,
the
removal
order
was
challenged as being violative of principle
of natural justice, the Court entertained the
writ petition after holding that the relief
may be granted, though the alternative
remedy was available.

28. In the case of Centurary Spinning
and Manufacturing Co. Ltd. and another v.
Ulhasnagar
Municipal
Council
and
another, (1970) 1 SCC 582, the Apex
Court found that the parties claiming to be
aggrieved by the action of a public body or
authority on the plea that the action is
unlawful, high handed, arbitrary or unjust
is entitled to a hearing of writ petition.

29. In the case of Nathi Mal Ram
Sahai Mal and others v. V.C., Meerut,
1998 UPLBEC 161, the Apex Court held
that the existence of alternative remedy has
been held to be no bar where it is alleged
that the provision is ultra vires or action is
1 All] Rajendra Prasad Upadhyaya 529 (S/S) 2012 V. State of U.P. and others
265
in violation of the Principle of natural
justice.

30. The learned counsel for the
petitioner further placed reliance upon the
case of Dr. Shyam Narain Pandey v. V.C.
Gorakhpur University, 1985 UPLBEC 99,
in which the impugned order was found to
be wholly void and ineffectual under law,
the Apex Court observed that the writ
petition cannot be dismissed on the ground
of alternative remedy after hearing has
been done on merits.

31. In the case of Hirdai Narain v.
Income Tax Officer, Bareily, AIR 1971 SC
33,
the
petitioner
was
having
an
alternative remedy of filing a revision
before the Commissioner of Income Tax
but the High Court entertained the writ
petition. The Apex Court observed that
Hirday Narain could have moved the
Commissioner in revision because at the
date on which the petition was moved the
period prescribed by Section 33A of the
Act had not expired. Their Lordship
further held that the revision for an order
correcting the order of the Income-tax
Officer under Section 35 was not moved,
the High Court would not be justified in
dismissing
the
petition
as
not
maintainable, which was entertained and
heard on merits.

32. In the case of Ashok Kumar and
others v. Managing Director, U.P. Leather
Development and Marketing Corporation
and another, 1986 (16) LCD 6, relying
upon the cases Jai Kishan and other v.
U.P. Cooperative Bank Ltd., 1989 (2)
UPLBEC 144 (DB) and Hirday Narain v.
I.T.O., Bareilly, AIR 1971 SC 33, the
Division Bench of this Court observed that
if an order is void and the petition does not
involve controversial question of facts, the
Court may not refuse to exercise its
jurisdiction. The pendency of the writ
petition for several years in the High Court
was also taken to be a justifiable ground
for not relegating the petitioners to get
their grievances redressed under the
provisions of the Industrial Disputes Act.
Holding that in such circumstances it will
not in any manner advance the cause of
justice if after the lapse of several years
this Court is to tell the workmen to go to
the Labour Court for seeking redressal of
their grievances more so in a case where
there was no controversy over the relevant
facts.

33. Reliance has also been placed
upon the case Ashok Kumar and others v.
Managing
Director,
U.P.
Leather
Development and Marketing Corporation
and another, 1986 (16) LCD 6, the High
Court after observing that the rule of
exhaustion of statutory remedy, before a
writ will be granted, is a rule of policy,
convenience and discretion rather than a
rule of law and it further observed that this
is a matter of discretion of the Court which
is to be exercised according tot he facts
and circumstances of each case.

34. In the case of Akhilesh Kumar
Saxena
v.
Director
of
Education
(Secondary) U.P., Lucknow, 1999 (17)
LCD 904, the Division Bench of this Court
observed that where the Court has
entertained the petition staying operation
of the impugned order after exchange of
affidavits the Court should not have
disposed of the matter finally only by
dismissing the petition on the ground of
alternative remedy. In view of this, the
appeal was allowed setting aside the order
and directing that the writ petition be
disposed of finally after hearing on merits.
266 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

35. In the case of Sudhakar Malviya
v. Benaras Hindu University, 1997 (2) ESC
1213, it has been held that the High Court
was wrong in dismissing a writ petition on
the ground of availability of an alternative
remedy when the writ petition had been
entertained and had remained pending for
11 years. This was a case where statutory
remedy under Section 68 of the State
Universities Act was available to the
petitioner but he has directly approached
the High Court under Article 226 of the
Constitution against the impugned order
and the High Court dismissed the writ
petition on the ground of availability of
alternative remedy under Section 68 of the
State Universities Act.

36. From the catena of decisions of
the Supreme Court following propositions
broadly flow:

(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 for
which following considerations weigh,
namely;

(a)
alternative
remedy
is
adequate,efficacious and speedy.

(iii) The High Court can try issues of
fact but may not entertain petition where
disputed question of facts have to be
determined and in such cases the petitioner
may
be
relegated
to
the
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 period 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.

(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.

Lastly, it depends upon the facts and
circumstances of each case as to whether
the discretion of entertaining the writ
petition in the teeth of the statutory remedy
has to be exercised or not."

12. The submission of learned counsel
for
appellant-petitioner
is
that
the
disciplinary
proceedings
against
the
appellant suffers from gross violation of
principles of natural justice, firstly, at the
stage of inquiry and thereafter at the stage
of issuing show cause notice as well as
passing of the final order of punishment.
Initially the appellant was denied the
relevant documents on account of which he
could not submit his reply to the chargesheet resulting in the submission of ex-parte
inquiry report by the inquiry officer. The
1 All] Rajendra Prasad Upadhyaya 529 (S/S) 2012 V. State of U.P. and others
267
inquiry officer had wrongly proceeded exparte.

13. Even if the inquiry officer had to
proceed ex-parte it was obligatory upon
him to hold an inquiry and prove the
charges on the basis of evidence by
recording his findings after discussing such
evidence but this was not done by the
inquiry officer as would be evident from a
bare perusal of his findings in respect of
charge no.3 and 5, which shows that he has
simply treated the same proved merely on
account of non submission of reply by the
appellant.

14. It is also contented that charge
nos.1, 2 and 4 were not found proved by
the inquiry officer against the appellant
and the disciplinary authority while issuing
the show cause notice under Rule 9(4) of
the Rules of 1999 did not differ with the
findings of the inquiry officer in respect of
the same, yet while passing the final order
of punishment he differed with the inquiry
officer. The disciplinary authority could
not have done so without complying with
the mandatory provisions of Rule 9(2) by
recording the reasons for differing with the
finding of the inquiry officer and thereafter
communicating the same under Rule 9(4),
since this was not done there was gross
violation of the said provisions and the
principles of natural justice rendering the
entire proceedings and the final order of
punishment unsustainable.

15. The learned State counsel on the
other hand submitted that there is no
illegality or infirmity in the impugned
order . It is the discretion of the Court
whether to entertain the writ petition or to
relegate the appellant/petitioner to exhaust
the statutory alternative remedy available
under law.

16. It is contended that in case there
is violation of Rules especially Rule 9(2)
and 9(4) of the U.P. Government Servant
(Discipline & Appeal) Rules, 1999 as
averred by the appellant, then he should
have first availed the remedy available
under the said Rules itself before invoking
the extra-ordinary jurisdiction of this
Court.

17. In support of her submission Smt.
Sangeeta Chandra, learned Additional
Chief Standing Counsel relied upon the
decision of the Supreme Court in the case
of N.P. Ponnuswami (appellant) vs. The
Returning Officer, Namakkal Constituency,
Namakkal,
Salem
Distt
and
others-
(respondents); The Union of India and
State
of
Madhya
Bharat-Interveners,
[1952(39) A.I.R. Supreme Court 64],
wherein it has been held that in case right
or liability is created by a Statute, redressal
shall be first availed in the forum created
under the said Statute itself. The relevant
paragraph-12 of the said judgment is
reproduced as under:

"12. It is now well-recognized that
where a right or liability is created by a
statute which gives a special remedy for
en- forcing it, the remedy provided by that
statute only must be availed of. This rule
was stated with great clarity by Willes J. in
Wolverhampton New Water Works Co. v.
Hawkes- ford(1) in the following passage
:-

"There are three classes of cases in
which a liability may be established
founded upon statute. One is, where there
was a liability existing at common law and
that li- ability is affirmed by a statute
which gives a special and peculiar form of
remedy different from the remedy which
existed at common law;there, unless the
268 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
statute contains words which expressly or
by necessary implication exclude the
common law remedy, the party suing has
his election to pursue either that or the
statutory remedy. The second class of
cases is, where the statute gives the right to
sue merely, but provides no particular
form of remedy: there, the party can only
proceed by action at common law. But
there is a third class, viz., where a liability
not existing at common law is created by a
statute which at the same time gives a
special
and
particular
remedy
for
enforcing it............ The remedy provided
by the statute must be followed, and it is
not competent to the party to pursue the
course applicable to cases of the second
class. The form given by the statute must
be adopted and adhered to."

The rule laid down in this passage
was approved by the House of Lords in
Neville v. London Express Newspaper Ltd.,
(1919) A.C. 368 and has been reaffirmed
by the Privy Council in Attorney-General
of Trinidad and Tobago v. Gordon Grant
& Co. 1935 A.C. 532 and Secretary of
State v. Mask & Co., 44 Cal. W.N. 709;
and it has also been held to be equally
applicable to enforcement of rights: (see
Hurdutrai v. Official Assignee of Calcutta,
52(Cal) W.N. 343, at p. 349. That being so,
I think it will be a fair inference from the
provisions of the Representation of the
People Act to state that the Act provides
for only one remedy, that remedy being by
an election petition to be presented after
the election is over, and there is no remedy
provided at any intermediate stage."

18. Reliance has also been placed
upon the case of State of U.P. and another
Vs. Labh Chand, [A.I.R. 1994 Supreme
Court 754], where it was held that when a
Statutory Forum or Tribunal is specially
created by a statute for redressal of
specified grievances of persons on certain
matters, the High Court should not
normally permit such persons to ventilate
their specified grievances before it in the
writ jurisdiction under Article 226 of the
Constitution.

19. The case of U.P. State Spinning
Co. Ltd. Vs. R.S. Pandey and another,
[(2005) 8 Supreme Court Cases, 264], has
been placed in support of submission that
the adequate and speedy statutory remedy
normally cannot be allowed to be byepassed.

20. Relying upon the decision of the
Supreme Court in the case of United Bank
of India Vs. Styawati Tondon and others,
[(2010) 8 Supreme Court Cases 110], and
in the case of Kanaiyalal Lalchand
SAchdev
and
others
vs.
State
of
Maharashtra and others, [(2011) 2 SCC
782]. The learned Additional Chief
Standing Counsel further submitted that
where the alternative remedy is available
under a statute the Court must relegate the
appellant-petitioner to that forum.

21. In the case of Kanaiyalal
Lalchand Sachdev and others (supra) in
paragraph 21 and 22, the legal position has
been summarized, which is reproduced as
under:

"21. In our opinion, therefore, the
High Court rightly dismissed the petition
on the ground that an efficacious remedy
was available to the appellants under
Section 17 of the Act. It is well-settled that
ordinarily relief under Articles 226/227 of
the Constitution of India is not available if
an efficacious alternative remedy is
available to any aggrieved person. (See:
Sadhana Lodh Vs. National Insurance Co.
1 All] Rajendra Prasad Upadhyaya 529 (S/S) 2012 V. State of U.P. and others
269
Ltd. & Anr.5; Surya Dev Rai Vs. Ram
Chander Rai & Ors.6; State Bank of India
Vs. Allied Chemical Laboratories &
Anr.7). In City and Industrial Development
Corporation
Vs.
Dosu
Aardeshir
Bhiwandiwala & Ors.8, this Court had
observed that:

The
Court
while
exercising
its
jurisdiction under Article 226 is dutybound 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.

22. In the instant case, apart from the
fact that admittedly certain disputed
questions of fact viz. non-receipt of notice
under Section 13(2) of the Act, noncommunication of the order of the Chief
Judicial Magistrate etc. are involved, an
efficacious statutory remedy of appeal
under Section 17 of the Act was available
to the appellants, who ultimately availed of
the same. Therefore, having regard to the
facts obtaining in the case, the High Court
was fully justified in declining to exercise
its jurisdiction under Articles 226 and 227
of the Constitution."

22. We have considered the
submissions made by the parties' counsel.

23. Before the writ court the
appellant-petitioner
had
assailed
the
impugned order of punishment mainly on
the ground of violation of principles of
natural justice and violation of Rules under
U.P. Government Servants (Discipline and
appeal) Rules, 1999. It was the specific
case of the appellant that he was not
provided adequate opportunity of defence
in
the
departmental
inquiry,
the
disciplinary authority while awarding the
punishment
had
disagreed
with
the
findings of the inquiry officer and had
awarded the punishment in violation of
Rules 9(2) & 9(4) of the Rules of 1999.
The disciplinary proceedings against the
appellant suffers from gross violation of
principles of natural justice firstly at the
stage on enquiry and thereafter at the stage
of show cause notice as well as passing of
the final punishment order. Further even if,
the enquiry officer has to proceed ex-parte
it was obligatory upon him to hold an
inquiry and prove the charges on the basis
of evidence by recording his findings after
discussing such evidence but this was not
done by the inquiry officer and the charges
were simply treated to be proved merely
on account of non-submission of reply to
the charge-sheet by the appellant.

24. 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
270 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
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.

(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.

25. 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.

26. 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.

27. 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.

28. 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
1 All] Yogendra Kumar, Constable No. 98 C.P. and others V. State of U.P. and others
271
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.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2012

BEFORE
THE HON'BLE SYED RAFAT ALAM, C.J.
THE HON'BLE RAN VIJAI SINGH,J.

Special Appeal No. - 385 of 2012

Yogendra Kumar, Constable No. 98 C.P.
and others

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Vijay Gautam

Counsel for the Respondents:
C.S.C.

U.P. Police Officer Subordinate Rank
(Punishment and Appeal) rules 1991Rule-17
(1)
(b)-suspension
on
contemplation of enquiry-contention that
no enquiry pending under Rule-17 (1)
(b)-suspension
order
not
legally
sustainable held-mere quoting wrong
provision can not invalidate order if
otherwise
good-however
enquiry
be
concluded within specific period-Appeal
disposed of.

Held: Para 6

In the case in hand, since the authority, in
the order of suspension, in place of Rule
17 (1) (a), has mentioned Rule 17 (1) (b),
the same cannot be said to be invalid in
view of the law laid down in State of
Karnataka Vs. Muniyalla (supra) as for the
reasons given in the impugned order of
suspension,
the
appellants
could
be
placed under suspension.
Case law discussed:
AIR 1985 SC 470
(Delivered by Hon'ble Syed Rafat Alam, C.J. )

1. This is an intra-court appeal under
the Rules of the Court against the order of
the learned Single Judge dated 07.02.2012.

2. We have heard learned counsel for
the appellants and the learned Standing
Counsel for the respondents.

3. It appears that the appellants, along
with one S.I. Salamat Kha, being aggrieved
by order dated 19.01.2012 placing them
under suspension pending enquiry, filed
Writ Petition No. 6888 of 2012, which has
been disposed of by the learned Single
Judge vide order dated 7th February, 2012
directing the respondents to complete the
disciplinary
proceedings
contemplated
against the appellants within three months
from the date of presentation of a certified
copy of the said order subject to appellants'
cooperation in the said proceeding. The
aggrieved appellants, therefore, preferred
this appeal.

4. Shri Vijai Gautam, learned counsel
for the appellant vehemently contended that
the order of suspension, impugned in the
writ petition, has been passed under Rule 17
(1) (b) of the Uttar Pradesh Police Officers
of the Subordinate Ranks (Punishment and
Appeal) Rules, 1991 (hereinafter referred to
as the 'Rules') by the Senior Superintendent
of Police, Etah - respondent no.3. He
submits that an order of suspension under
the said Rule ca only be passed against a
police officer in respect of whom an
investigation, enquiry or trial relating to a
criminal charge is pending. He submits that
since there is no investigation/enquiry or
trial relating to any criminal charge pending
against the appellants, therefore, the order
of suspension cannot sustain.