# Rakesh Kumar v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 24
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Writ-A No. 4662 of 2022
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-v-state-of-u-p-anr-47711
- **Pages:** 5

## Headnote

A. Service Law - Forfeiture of Pension -
Punishment - U.P. Power Corporation
Limited
Employees
(Discipline
and
Appeal) Regulations, 2020: Regulation
11; Bihar Electricity Act: Section 3(1) -
Alternative Remedy - When a right is
created by the 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 u/Article 226 of the Constitution.
This Rule of exhaustion of statutory remedies
is a rule of policy, convenience and discretion.
In cases
where there are
disputed
questions of fact, the High Court may
decide to decline jurisdiction in a writ
petition. (Para 11)

In present case, the punishment order has been
challenged not only on grounds of violation of
Principle of Natural Justice but also on merits by
saying that the Inquiry Report on which such
punishment order is based is completely nonspeaking and has tried to convince this Court on
the merits of the claim of the petitioner that he
is in no way responsible for the alleged
misconduct which led to the passing of the
impugned order. Disputed questions of fact
have been tried to be raised in this
petition by means of filing affidavits
including supplementary affidavit showing
that the respondents themselves have
acted upon the noting made on the file by
the petitioner. This Court in Writ jurisdiction
finds itself unable to appreciate disputed
questions of fact only on the basis of affidavit.
(Para 12, 13)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

24 INDIAN LAW REPORTS ALLAHABAD SERIES
court below. Therefore, no interference is
required at this stage.

7. In view of the above, the
application is, accordingly, dismissed.
----------
(2022) 10 ILRA 24
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ-A No. 4662 of 2022

Rakesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri
Shivendu
Ojha,
Sri
Prathamesh
Upadhyay, Sri R.K. Ojha (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava

A. Service Law - Forfeiture of Pension -
Punishment - U.P. Power Corporation
Limited
Employees
(Discipline
and
Appeal) Regulations, 2020: Regulation
11; Bihar Electricity Act: Section 3(1) -
Alternative Remedy - When a right is
created by the 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 u/Article 226 of the Constitution.
This Rule of exhaustion of statutory remedies
is a rule of policy, convenience and discretion.
In cases
where there are
disputed
questions of fact, the High Court may
decide to decline jurisdiction in a writ
petition. (Para 11)

In present case, the punishment order has been
challenged not only on grounds of violation of
Principle of Natural Justice but also on merits by
saying that the Inquiry Report on which such
punishment order is based is completely nonspeaking and has tried to convince this Court on
the merits of the claim of the petitioner that he
is in no way responsible for the alleged
misconduct which led to the passing of the
impugned order. Disputed questions of fact
have been tried to be raised in this
petition by means of filing affidavits
including supplementary affidavit showing
that the respondents themselves have
acted upon the noting made on the file by
the petitioner. This Court in Writ jurisdiction
finds itself unable to appreciate disputed
questions of fact only on the basis of affidavit.
(Para 12, 13)

Writ petition dismissed. (E-4)

Precedent followed:

1.
Smt.
Shaheen
Badar
Vs
U.P.
Power
Corporation Ltd. & ors., Special Appeal No. 566
of 2022 (Para 3)

2. M/s Magadh Sugar & Energy Ltd. Vs The
State of Bihar & ors., Civil Appeal No 5728 of
2021 (Para 4)

3. UPPCL Vs Anil Kumar Sharma, Special Appeal
Defective No. 646 of 2021, decided on
23.10.2021 (Para 8)

4. N.P. Ponnuswami Vs Returning Officer, 1952
SCR 218 (Para 11)

Present
petition
assails
order
dated
10.01.2022, passed by Chairman, U.P.
Power Corporation Limited, Lucknow.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

1. Heard Sri R. K. Ojha, learned
Senior Advocate assited by Sri Prathamesh
Upadhyay,
learned
counsel
for
the
petitioner and Sri Abhishek Srivastava,
learned counsel for the respondent no. 2.
10 All. Rakesh Kumar Vs. State of U.P. & Anr.
25

2. This petition has been filed
challenging the Order dated 10.01.2022
passed by the respondent no. 2 forfeiting
the entire pension of the petitioner as
punishment for alleged misconduct when
the petitioner was an employee of the
Respondent Corporation.

3. Learned counsel for the respondent
has
raised
a
preliminary
objection
regarding the maintainability of the petition
saying that against the punishment order
passed by the respondent no. 2, the
petitioner has remedy for filing an appeal
under Regulation 11 of the U.P. Power
Corporation
Limited
Employees
(Discipline and Appeal) Regulations, 2020.
Learned counsel for the respondent has
placed before this Court a Division Bench
judgement in Special Appeal No. 566 of
2022, Smt. Shaheen Badar Vs. U.P. Power
Corporation Limited and others where the
Writ Court had rejected, the writ petition
by its order dated 02.09.2022 on the ground
of statutory remedy being available, under
the Regulations of 2020. The Division
Bench observed that if a punishment order
is passed in Disciplinary Proceedings by
the Chairman, against such an order
statutory remedy of filing an Appeal under
Regulation 11 is provided to the Board of
Directors of the Corporation.

4. It has been argued by the learned
counsel appearing on behalf of the
petitioner that the order impugned was
passed without jurisdiction and in violation
of Principles of Natural Justice and in view
of the law settled by a recent judgement of
the Supreme Court by a three Judges Bench
rendered on 24.09.2021 in Civil Appeal
No. 5728 of 2021, 'M/s Magadh Sugar &
Energy Ltd. vs. The State of Bihar &
Others', the existence of a statutory remedy
would not be a bar for the High Court for
exercising extraordinary jurisdiction under
Article 226 of the Constitution.

5. It has been argued by the learned
counsel for the petitioner that the petitioner
was engaged initially as an Assistant
Engineer, and thereafter, promoted as
Executive Engineer, and Superintending
Engineer, and then promoted as a Chief
Engineer before he retired on 31.03.2021.
After his retirement charge sheet was
issued to him on 17.11.2021 by an Inquiry
Committee constituted by the Respondent
No.2 without jurisdiction, as there is no
provision in the Employees Regulations
which gives power to the Respondents to
initiate Disciplinary Proceedings against a
retired employee without sanction of the
Competent Authority.

6. It has further been submitted that
the punishment order has been passed on
the basis of an Inquiry Report submitted in
complete violations of Principles of Natural
Justice as no date time and place of hearing
were fixed by the Inquiry Officer after the
petitioner submitted his reply to the charge
sheet. Moreover the Inquiry report is nonspeaking in nature.

7. Sri Abhishek Srivastava, has placed
reliance upon the mention made in the
impugned order of punishment that looking
into grave charges of misconduct, the
Chairman of the Corporation had in his
capacity as the Competent Authority given
sanction for initiation of Disciplinary
Proceedings under Article 351-A of the
Civil Services Regulations on 17.11.2021.

8. Learned counsel for the respondent
has placed reliance upon a Division Bench
judgement of this Court in Special Appeal
Defective No. 646 of 2021 decided on
23.10.2021, 'UPPCL vs. Anil Kumar
26 INDIAN LAW REPORTS ALLAHABAD SERIES
Sharma', where this Court has considered
the applicability of Article 351-A of the
Civil Services Regulations to Employees of
Statutory Corporations such as the UPPCL,
and after placing reliance upon Supreme
Court Judgements has observed that the
language of Article 351-A of the Civil
Services
Regulations
shall
mutatis
mutandis apply in such cases and
Competent Authority would mean the
Chairman of the Corporation who can grant
sanction, but such sanction has to be
granted by a reasoned and speaking order
for initiation of proceedings for a retired
employee, in case, the alleged misconduct
is of a time when the employee was
working and within four years of his date
of retirement.

9. I have considered the arguments
raised by the learned counsel for the parties
and have carefully gone through the
judgement rendered in M/s Magadh Sugar
& Energy Ltd. vs. The State of Bihar &
Others (Supra) where the appellant had
invoked the writ jurisdiction of the High
Court to challenge the imposition of
Electricity Duty and penalty on the
electricity that it was supplying to Bihar
State Electricity Board. The appellant being
a Sugar Mill Company was producing
electricity out of waste of sugarcane, which
it was supplying to Bihar State Electricity
Board since March, 2008, under the Bihar
Electricity Duty Act, 1948 as amended in
2002, which also provided that the State of
Bihar could levy tax on the basis of value
of units of energy consumed or sold at the
rate specified by it in its notification. The
appellant had challenged the notifications
issued regarding rates notified by the State
Government before the High Court. The
High Court struck down the notifications
on the ground that there were no guideline
in the Statute for the notifications for
construing
the
expression
"value
of
energy".
The
State
of
Bihar
being
aggrieved filed a Special Leave Petition
before the Supreme Court where the matter
is pending. The State of Bihar amended the
Bihar Electricity Act and defined the term
"value of energy". Such amendment was
challenged by the Bihar Sugar Mills
Association in writ jurisdiction before the
Patna High Court and the Writ Petition was
pending. In the meanwhile, the fourth
respondent issued notice to the appellant
for failure to file returns with regard to levy
of
taxes
and
duties.
The
Assistant
Commissioner, Commercial Tax rejected
the arguments raised by the appellant that it
was supplying energy to the State of Bihar.
In the mean while, the National Thermal
Power Corporation Limited had also filed a
Writ Petition challenging the imposition of
Electricity Duty on its supply of Electricity
to various Electricity Boards including the
Bihar State Electricity Board. The High
Court held that Electricity Duty cannot be
included under Section 3 (1) of the Bihar
Electricity Act on a power generation
company
supplying
Electricity
to
a
Licensee
Electricity
Board.
The
Respondents filed Special Leave Petitions
which were dismissed by the Supreme
Court.

10. The High Court by its judgement
dated 18.09.2018 dismissed the Writ
Petition instituted by the appellant holding
the liability of the appellant to file returns
would require a factual determination on
the nature of the supply of electricity made
to Bihar State Electricity Board, and
observed that the appellant should invoke
statutory remedy provided in the Act. The
appellant approached the Supreme Court
against such order the Supreme Court in
Paragraph 19 of the Judgement has
observed as under:-
10 All. Rakesh Kumar Vs. State of U.P. & Anr.
27

"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 and Harbanslal
Sahni v. Indian Oil Corporation Ltd.
Recently, in Radha Krishan Industries v.
State of Himachal Pradesh & Ors 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
ordinanly, a writ petition should not be
entertained when an efficacious alternate
remedy is provided by law.

(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."

 (emphasis supplied)"

The
principle
of
altemate
remedies and its exceptions was also
reiterated recently in the decision in
Assistant Commissioner of State Tax v.
M/s Commercial Steel Limited. In State
of HP v. 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
28 INDIAN LAW REPORTS ALLAHABAD SERIES
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 v. 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".

11. This Court finds that the Supreme
Court has reiterated the long settled law as
propounded
by
the
Constitution
Bench
judgement in the case of N. P. Ponnuswami vs.
Returning Officer 1952 SCR 218; and has
observed that when a right is created by the
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. In
cases where there are disputed questions of fact,
the High Court may decide to decline
jurisdiction in a writ petition.

12. In the case of the petitioner, he has
challenged the punishment order not only on
grounds of violation of Principle of Natural
Justice but also on merits by saying that the
Inquiry Report on which such punishment order
is based is completely non-speaking and has
tried to convince this Court on the merits of the
claim of the petitioner that he is in no way
responsible for the alleged misconduct which
led to the passing of the impugned order.
Disputed questions of fact have been tried to be
raised in this petition by means of filing
affidavits including supplementary affidavit
showing that the respondents themselves have
acted upon the noting made on the file by the
petitioner.

13. This Court in Writ jurisdiction finds
itself unable to appreciate disputed questions of
fact only on the basis of affidavit, more so when
the matter is so technical as that of the petitioner
where the charge sheet itself shows imputation
malafide intention on the part of the petitioner
to help M/s Gaur Sons Realty Pvt. Ltd., Gaur
Sundaram Greater Noida, Gautam Budh Nagar,
by giving new electricity load of 5200 KV from
under Construction 220/132 KV Sub-Station,
Sector 123, Noida through 33 KV independent
"bay" and refers in detail to the Technical
Feasibility Report and the Electricity Audit
conducted, thereafter.

14. This Writ Petition is dismissed as not
maintainable on account of statutory remedy of
filing an appeal before the Board of Directors
and the Regulation 11 of the Regulations of
2020.

15. If such an appeal is filed within three
weeks from today, the Board of Directors shall
not reject it on ground of delay, but shall
consider and decide the same on merits.
----------
(2022) 10 ILRA 28
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.09.2022

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No.6006 of 2002
Along with other cases

Shesh Ram & Ors. ...Petitioners
Versus
State of U.P. ...Respendent