Pradeep Kant, J.
1. The petitioner being aggrieved by an order of removal from service dated August 1, 1997, has approached this Court under Article 226 of the Constitution of India. The petition was filed on October 13. 1997, on which date the High Court passed an order giving time to the learned standing counsel for seeking instructions on the question of competence of the authority who has passed the order of removal from service.
2. The matter was listed for several times and on April 17, 1999, the Court again taking into consideration that since no counter-affidavit has been filed, passed an order that the contention of the petitioner is that he has been removed from service without following the principle of natural justice as the Enquiry Officer although has relied upon the preliminary enquiry report but neither the copy of the report of the preliminary enquiry was furnished to him nor he was allowed to cross-examine the witnesses and that the order of removal was passed not by the competent authority, allowed two weeks time and no more to the State to file counter-affidavit and directed for production of the record also. The order further directed that both the parties to come prepared for final disposal of the writ petition.
3. Later on counter-affidavit has been filed by the State to which rejoinder-affidavit has been filed by the petitioner.
4. Learned counsel for the petitioner reiterated the plea that the order of removal from service has been passed in violation of the principle of natural Justice and that the Director was not the authority competent to pass the impugned order, the submission in nut-shell, thus, was that the order has been passed by an authority who was having no jurisdiction to pass the impugned order and that the same suffers from vice of violation of principles of natural justice also.
5. A preliminary objection has been raised by the learned counsel for the State that the petitioner has an alternative remedy under the provisions of the U. P. Public Services Tribunal Act and, therefore, the writ petition is not maintainable.
6. In response to the aforesaid preliminary objection, the learned counsel for the petitioner Sri Ritu Raj Awasthi and Sri Amit Bose who volunteered himself to argue the question, submitted that once the petition has been entertained, the petitioner cannot be relegated to the remedy of the Tribunal after a lapse of three years. It was further submitted that since the order impugned has been challenged on the ground of the competence of the authority who passed the order and also for violation of principles of natural Justice in holding the disciplinary proceedings, the High Court has full jurisdiction to entertain the writ petition and alternate remedy would not be a bar.
7. In the instant case. It cannot be disputed that at the time of filing of the writ petition this Court did not deem it proper to relegate the petitioner to avail the alternative remedy before the Tribunal and that is why time was granted to the learned standing counsel to obtain instructions with respect to the competence of the authority to pass the impugned order. Not only this on April 17, 1999, the Court again took into consideration the pleas raised by the learned counsel for the petitioner and after being satisfied that a counter-affidavit would be necessary for adjudicating such pleas granted further time to State counsel to file counter-affidavit.
8. The Court also felt satisfied that after filing of the counter-affidavit, the matter may be decided finally and, therefore, gave a direction that both the parties were required to come prepared with the case for final disposal of the writ petition. Thus, it cannot be said that the petition was not entertained by the Court.
9. Learned counsel for the State asserted that unless an order of admission has been passed, it cannot be said that the petition has been entertained. The purpose of passing an order of admission which order is passed after preliminary hearing of the case. Is only to entertain the writ petition and to make it known to the other side that the writ petition hasbeen entertained by the High Court and by issuing of notice at the time of admission to the opposite parties, they are required to file their response to the pleas raised in the writ petition. Since in absence of service upon the opposite parties and without affording opportunity to them to meet the challenge raised in the writ petition, by filing a response, the petition cannot be heard and disposed of finally so as to give the final decision, the petitions are directed to be admitted and notices are ordered to be issued to other side. It has become a common practice that the High Court while entertaining the writ petition on various occasions does not intend to pass a formal order of admission but at the same time requires the opposite parties to file a counter-affidavit. In case the opposite parties are only State, or State functionaries, the notice already stands accepted and they are given time to file counter-affidavit but where private parties are also arrayed as respondents, notices are directed to be issued to them and they are also granted time to file counter-affidavit.
10. Once the notices have been directed to be issued to private parties or the State who has already accepted the notice before entertaining the writ petition under the Rules of the Court are directed to file a counter-affidavit. It cannot be said by any means that the petition has not been entertained merely because of the absence of formal order of admission being passed in the writ petition. Any order passed by the Court, which is passed after applying its mind and which furthers the proceedings in the writ petition more explicitly by requiring the opposite parties to file a counter-affidavit, would fall within the meaning of entertaining the writ petition. The facts as they exist in the present writ petition and which has been narrated above leaves no room of doubt that the petition has already been entertained by this Court in the year 1997 itself i.e.. much before when this matter has come up for hearing before this Court.
11. Apart from the fact that once the writ petition has been entertained and is pending for such a long time. there would be little Justification for relegating the petitioner to the remedy of the Public Services Tribunal. The grounds on which the petitioner is challenging the order, in ex parte motion is also to be seen while entertaining the writ petition or while requiring the petitioner to seek his remedy in alternative forum. In case the challenge is made on the ground of want of jurisdiction or authority of the authority who has passed the order or if the violation of the fundamental rights, or violation of principle of natural Justice is asserted, the Court may entertain the writ petition irrespective of any forum of alternate remedy being available to the petitioner. Whether the petition is to be entertained or not, is to be considered on the date of presentation of the writ petition and particularly on the date when the Court decides to entertain it. In case the High Court comes to the conclusion that the appropriate remedy is to relegate the petitioner to the alternative forum, the petition should not be entertained but in case the Court takes a different view and entertains the writ petition, then in such cases 'ordinarily1 the petitioner should not be relegated to the remedy of alternative forum after a considerable period has elapsed, and or, the parties have exchanged their pleadings under the orders of the Court.
12. There is one more aspect of the matter, namely, if a litigant under a bona fide belief has approached the High Court under Article 226 of the Constitution impugning a particular order which otherwise could have been impugned before the Public Services Tribunal also and the writ petition is entertained by the Court which comes up for hearing after exchange of affidavits after considerable period of time, compelling the petitioner at such a late stage to seek has remedy in the alternative forum would not only put him into another course of long drawn litigation but would also bring the entire exercise which has beendone in the High Court to a naught and the petitioner would find himself again standing at the same place from where he has started his fight for justice. Relegating the petitioner to the alternative remedy before the Public Services Tribunal would once again require him to wander into the maize of litigation and to face the vagaries of procedural law once again. On the one hand in the present era, cry of speedy justice from all over the country is a matter of concern which has been expressed by the Apex Court in many cases, the refusal on the part of the High Court to decide the writ petition on merit when it is ripe for hearing and to force the petitioner to seek remedy which he has not chosen to elect while approaching the High Court would delay the justice further more and would not be in consonance with the legal mandate of providing speedy Justice. It is the discretion of the Court where the petition has been filed, to entertain the same on the grounds urged by the petitioner or to dismiss the writ petition on the ground of alternative remedy but once the petition has been entertained in exercise of Judicial discretion, such a discretion 'ordinarily' is not to be interfered with in the subsequent stages of litigation unless the Court is satisfied, that the matter could not or for some cogent reasons, should not have been entertained by the High Court at all.
13. Refusal on the part of the High Court to entertain writ petition where statutory alternative remedy is available to the petitioner is a self-imposed restriction which cannot be taken as an absolute bar for the High Court in entertaining the writ petition.
14. In the case of Whirlpool Corporation v. Registrar of Trade Marks : AIR1999SC22 , the Apex Court while considering the question of availability of alternate remedy observed that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. This power can be exercised by the HighCourt not only for issuing writs in the naure 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' and that 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. The Supreme Court further finds that the alternative remedy has been consistently held by this Court not to operate as a bar at least in the following 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 principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
15. In the case of Rashid Ahmed v. Municipal Board, Kairana : [1950]1SCR566 , 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 u. Income Tax Investigation Commissioner : [1954]25ITR167(SC) , 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. Noon 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 inspite 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 Sobhrqj Wadhwani : 1983ECR2151D(SC) , and was affirmed and fallowed in the following words :
'The passages in the Judgments 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 : [1961]41ITR191(SC) , laid down as under :
'Though the writ of prohibition or certiorari will not issue against an executiveauthority, 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 judgments 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. Reliance has also been placed on the case of Collector of Monghyr v. Keshav Prasad Goenka : [1963]1SCR98 , which provided 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 : [1966]1SCR284 , 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 ChandraMoheshwari v. Antarim Ztta Parishad : [1969]1SCR518 , namely :
(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)1SCC309 , 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(32)ELT8(SC) , 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)3SCC792 , 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 1, Sales Tax Kanpur Range, Kanpur and another : [1968]1SCR505 . 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 toconsideration'. 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 . and another v. Ulhasnagar Municipal Council and another : [1970]3SCR854 , 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 Sahal 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 uires or action is 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 : [1970]78ITR26(SC) , the petitioner was having an alternative remedy of filing a revision before the Commissioner of IncomeTax 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 Jat Ktshan and other v. V. P. Cooperative Bank Ltd., 1989 (2) UPLBEC 144 (DB) and Hirday Narain v. I.T.O., Bareilly : [1970]78ITR26(SC) , 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 a. Managing Director. U. P. Leather Development and Marketing Corporation and another. 1998 (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 beexercised according to the 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.
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 entertainpetition where disputed question of facts have to be determined and in such cases the petitioner may be relegated to the statutory alternate 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.
37. The learned counsel for the State placed before this Court a copy of the Division Bench judgment passed in Special Appeal No. 328 of 2000 decided on 29.8.2000, wherein a single Judge of this Court finally dismissed the writ petition of the petitioner who has challenged an order of dismissal from service but in the special appeal which was filed by the petitioner being aggrieved from the order of dismissal of the writ petition against dismissal from service, the Division Bench relegatedthe petitioner to the remedy of Public Services Tribunal. The submission on the strength of the aforesaid judgment raised by the learned counsel for the State was that since the Division Bench has sent the petitioner before the Tribunal even when the writ petition was finally decided by the learned single Judge of this Court, even after a lapse of considerable period, the present petition cannot be entertained on this ground.
38. So far the Judgment passed by the Division Bench in the special appeal is concerned, it is on the facts and circumstances of that case. The Division Bench took a view that the petition should not have been entertained and the petitioner should have been relegated to the remedy of the Public Service Tribunal. If in a particular case on the strength of the pleadings and facts and circumstances of that case, the Division Bench has relegated the petitioner of that writ petition to the remedy of Public Services Tribunal, it does not mean that the Division Bench judgment debars and excludes the jurisdiction of the High Court in entertaining the writ petition where allegedly a statutory alternative remedy exists. The Division Bench judgment does not lay down any specific law placing an absolute embargo on the discretion of the High Court to entertain the writ petition in given circumstances but it is only a case particular in its nature where the Division Bench had taken a view that the petition should be dismissed on the ground of availability of the alternative remedy.
39. Much emphasis has been laid down by the learned counsel for the State on the case of State of U. P. v. Labh Chand : (1993)IILLJ724SC . In this case the Government servant challenged the order of compulsorily retirement without approaching the State Public Services Tribunal, the Division Bench of the High Court dismissed the writ petition on the ground of availability of alternative remedy.
Second writ petition was filed for the same cause of action before a learned single Judge, who despite the earlier writ petition being dismissed on the ground of alternative remedy, entertained the said writ petition. The Supreme Court while allowing the appeal of the State of U. P. observed as under:
(i) The learned Judge of the High Court, as a High Court even if assumed to have had discretionary power to entertain a second writ petition under Article 226 of the Constitution notwithstanding the fact that an earlier similar writ petition had not been entertained by the same Court because of the non-exhaustion of an alternative statutory remedy available to the petitioner in the matter, he could not have enetertained the second writ petition unless it was found that the discretion already exercised by the High Court in refusing to entertain the earlier writ petition was either arbitrary or otherwise unwarranted.
(ii) The learned single Judge of the High Court, by entertaining a second writ petition under Article 226 of the Constitution on the subject-matter which was covered by an earlier writ petition dismissed by the Division Bench of the same Court had given a go-by to the well-established salutary rule of judicial practice and procedure that an order of a single Judge Bench much less of Judges of larger Bench of a High Court refusing to entertain the earlier writ petition in limine even on the ground of laches or on the ground of non-availing of alternate remedy ought not to be interfered with by another single Judge or Judges of larger Benches except in review or appeal, if permitted.
The Lordship further found that the remedy of the Public Services Tribunal was adequate and if the Division Bench has exercised its jurisdiction in not entertaining thewrit petition on the ground of alternative remedy the exercise of discretion could not be said to be unreasonable.
40. The facts of Labh Chand case (supra) were different from the fact of the instant case. In that case the discretion was exercised by the Division Bench of the Court relegating the petitioner to the remedy of the Public Services Tribunal and said exercise of discretion was found to be fully in consonance with the sound exercise of judicial discretion, and therefore, the learned single Judge ought not to have entertained the second writ petition for the same cause of action.
41. From the ratio of the aforesaid Judgment, it does not emerge that a complete embargo has been placed upon the High Court in entertaining the writ petition if alternative remedy is available before the Tribunal, but the discretion has to be exercised on sound judicial principle and as per the principles enunciated by the Apex Court. Of course while exercising discretion in permitting the petitioner. Government employee to bypass the statutory and alternative remedy before the Public Services Tribunal, care should be taken that unless there are good reasons normally the discretion should not be exercised in favour of entertaining the writ petition.
42. One more important aspect of the matter is that once the Government employee chooses to forego his right of redressal of his grievance before one forum, i.e., Public Services Tribunal and takes recourse to approaching the High Court directly under Article 226 of the Constitution and his petition is dismissed on merits, such a petitioner normally would not be relegated to the remedy of the Public Services Tribunal unless appellate Court or higher Court takes a different view as this would give another chance or second inning to such Government servant to get his case adjudicated once again by the Public Services Tribunal, irrespective of the fact that his challenge in this Court against the impugned order hasremained unsuccessful. The Government servant who has chosen to bypass the alternative remedy of the Public Services Tribunal cannot be permitted to derive any advantage of the risk that he has taken by approaching the High Court directly and should only in exceptional cases, be given a chance to get the same issue re-adjudicated before the State Public Services Tribunal whose jurisdiction is subject to the jurisdiction of the High Court under Article 226/227 of the Constitution under the provisions of the U.P. Public Services Tribunal Act itself.
43. The Government servant who has deliberately and with open eyes availed his remedy of approaching the Public Services Tribunal, is estopped from urging that he should be relegated to the remedy of the Public Services Tribunal after his petition has been dismissed by the High Court.
44. The learned counsel for the State relied upon the case of Dr. G. Sarna v. University of Lucknow and others : (1977)ILLJ68SC . In this case, the petitioner Dr. G. Sarna made a challenge to the selection on the ground of bias of the Selection Committee. The writ petition was dismissed by the High Court. In appeal the Supreme Court found that the petitioner who did not raise even his little finger against the constitution of Selection Committee, seems to have voluntarily appeared for interview and took a chance of favourable recommendation in his favour. The Supreme Court further observed that it was difficult to understand how the writ petition or for that matter the present appeal in the Supreme Court was maintainable when the recommendation of the Selection Committee has still to be scrutinized by the Executive Council of the University and either accepted or rejected by it and other remedies by way of representation to the Executive Council and an application for reference of the matter under Section 68 of the Uttar Pradesh Universities (Re-enactment and Amendment) Act, 1974, to the Chancellor are still open to the appellant and have not been exhausted.
45. In the case of Dr. G. Sarna, a challenge to the Selection Committee was made by the petitioner without objecting about its constitution either before participation or during the course of the interview. In these circumstances, the Supreme Court dismissed the writ petition and observed that the petitioner has not exhausted the remedy of approaching the Executive Council or under Section 68 of the State Universities Act. The petitioner thus had come before the High Court without giving a chance or opportunity to the Executive Council for looking into the grievance and also without approaching the Chancellor under Section 68 of the aforesaid Act. In these circumstances the Supreme Court took the view as stated above. This case also does not say that if there is a remedy or statutory remedy the High Court has no jurisdiction to entertain the petition at all.
46. The Supreme Court in the case of Sudhakar Malviya (supra) and Dr. (Smt,) Kuntesh Gupta (supra) has also found that the alternative remedy under Section 68 of the aforesaid Act could not be an absolute bar for entertaining the writ petition depending upon the facts and circumstances of the case.
47. The authority and the discretion of the High Court to entertain the writ petition even on the existence of adequate statutory alternative legal remedy, on the law laid down by the Apex Court in various cases about which mention has been made above, clearly establishes and reiterates that the alternative remedy is not an absolute bar in entertaining the writ petition and High Court has full jurisdiction to entertain the writ petition, on the principles which have been enunciated by the Supreme Court in various cases.
48. In view of the facts and circumstances of the present case where the challenge to the impugned order has been made on the ground of incompetence or want of jurisdictionof the authority who has passed the impugned order and also on the ground that the petitioner has not been afforded reasonable opportunity and there has been violation of principles of natural justice in holding disciplinary proceedings, the petition was entertained by the High Court, and the discretion exercised by the High Court cannot be said to be arbitrary or unreasonable, and, therefore. I, do not find at this stage of final hearing, any probable and justified reason to relegate the petitioner to the forum of alternative remedy of State Public Services Tribunal.
49. It would be pertinent to take note at this juncture that 'entertainment' of a petition is to be considered in an ex-parte motion where the pleadings emerge from the averments made in the writ petition and the discretion has to be exercised by the Court at that time, considering the pleas raised at the time of ex-parte motion. If at the time of ex parte motion, the Court is satisfied that any such circumstance exists which entitles the petitioner to bypass the statutory alternate remedy, the petition may be entertained either by passing the order of 'admission' or by issuing notices to the opposite parties, requiring them to file reply to the writ petition. It is a different matter that after reply is filed, when the writ petition is heard, the Court comes to the conclusion that the pleas raised in the writ petition do not have any merit and for that matter, the petition is liable to be dismissed, may dismiss the writ petition on merits, but the final decision of the writ petition, in such a case would not affect the jurisdiction of the Court to entertain the writ petition and to give final verdict when the matter is finally heard on the merits of the case. Entertaining a petition is a stage which comes before the final decision takes place, therefore, the discretion to entertain the writ petition or not to entertain the writ petition in presence of alternative statutory remedy has to be exercised at the earlier stage, i.e., at the time of entertainment of the writ petition. However, this does not necessarilymean that after exchange of affidavits, the writ petition can in no circumstances be dismissed on the ground of alternative remedy, but in doing so, discretion has to be exercised on sound judicial principles.
50. Apart from this in the case in hand, the petition has already been entertained, affidavits have been exchanged, there is an order dated April 17, 1999. of the Court directing the parties to come prepared with the case for final disposal of the writ petition.
51. The State's objection is, thus, overruled.
52. So far the merits of the case are concerned, the learned counsel for the petitioner submitted that the impugned order has not been passed by the competent authority as the appointing authority of the petitioner was the Chief probation Officer because the petitioner belongs to the probation cadre whereas the removal order has been passed by the Director, Samaj Kalyan.
53. The learned counsel for the State in response to the aforesaid argument submitted that the petitioner was appointed in the Probation cadre under Samaj Kalyan Department and on enforcement of Clause-3 Ministerial Cadre Service Rules on September 5. 1991, the Director Samaj Kalyan was made the appointing authority of Class-Ill employees. It has been further submitted that on constitution of Manila Evam Bal Vikas Vibhag, the Director became the appointing authority.
54. The learned counsel for the petitioner did not press the question of competence of the authority who has passed the order of removal any further and submitted that even if the order has been passed by the competent authority, the order suffers from the vice of violation of the principle of natural justice and, therefore, it cannot be sustained. I, therefore, find that the impugned order has been passed by the authority competent which fact could not be disputed by the learned counsel for the petitioner.
55. The petitioner was subjected to formal disciplinary proceedings by issuance of a charge-sheet. It appears that a complaint was made regarding misappropriation of money given by the State Government in the form of grant for reimbursement of fee, etc. for the Scheduled Castes and Scheduled Tribes children studying in Sanjaya Gandhi Janta Sahayogi Madhyamik Vidyalaya, Jariyari, district Barabanki. A preliminary enquiry was conducted by Sri R. C. Mathur, the Assistant Manager, who submitted the preliminary enquiry report dated May 25, 1996. On the strength of the preliminary enquiry conducted by Sri R. C. Mathur, the petitioner was charge-sheeted vide charge-sheet dated September 21, 1996. The charge-sheet consisted only one charge, namely, in the years 1992-93 and 1993-94 when the petitioner was working in the office of District Social Welfare Officer, Barabanki and was looking after the work of reimbursement, the petitioner has issued cheques in the name of Manager Sanjaya Gandhi Janta Sahayogi Madhyamik Vidyalaya, Jariyari, district Barabanki, which were three in number, which were not handed over to the Manager of the ICOnstitution but to some other person who opened a fictitious bank account and encashed the amount. For this act, the petitioner was held guilty. The cheques were three in number dated 6.2.1993. 3.4.1992 and 8.4.1992. The evidence which was said to be relied upon by the petitioner was the letter of the District Social Welfare. Falzabad. dated June 11, 1996 and preliminary enquiry report submitted by Sri R. C. Mathur.
56. On receipt of the aforesaid charge-sheet, the petitioner, by means of the letter dated October 15, 1996, requested for supply of relevant documents, but his request was not conceded with the result he moved another application on November 1, 1996, before the enquiry officer, and requested that the relevant evidence/documents which are to be read in support of the charge against the petitioner may be supplied to him so that he may give an effective replyto the charge-sheet. The document which were mentioned in the charge-sheet were also not supplied, therefore, the petitioner prayed that the following documents may be supplied :
(i) Copy of the letter dated June 11, 1996 of the Dy. Director Samaj Kalyan, Faizabad Mandal. Falzabad.
(ii) Preliminary enquiry report dated May 25, 1996 of Sri R. C. Mathur.
(iii) The allocation of duties and work for the relevant period, i.e., 1991-92 and 1992-93.
(iv) Reimbursement register for the year 1992-93, and other relevant record and also.
(v) The copies of the cheques/ voucher of three cheques which have been mentioned in the charge-sheet.
57. Again the petitioner, by means of letter dated November 22, 1996, made a representation that despite several requests, he has not been supplied with the relevant evidence. This letter was addressed to the Enquiry Officer and copy of the same was sent to the Director. Social Welfare, U. P. The fact that the relevant documents were not supplied to the petitioner is also supported by the fact that the Enquiry Officer himself on November 4. 1996, wrote to the Deputy Director, Social Welfare, Lucknow, that the petitioner be supplied the documents which are being asked for and that necessary direction be issued to the concerned Section Officer. The Enquiry Officer also mentioned that so far the documents mentioned in item No. 4 are concerned, copies of the same may be given or they may be permitted to be inspected, namely the reimbursement register of 1992-93 and other connected register so that the petitioner may submit his reply before the Enquiry Officer. Apart from the aforesaid record, the petitioner be supplied the copies of the documents asked for. The petitioner was thereafter supplied the copies of the letter dated June 11, 1996, written bythe Deputy Director, Samaj Kalyan and preliminary enquiry report submitted by Sri R. C. Mathur, dated May 25, 1996, but he was not given the copies of the allocation of duty chart and other connected records nor the Photostat copies of the cheques or vouchers of the cheques which were the subject-matter of investigation, nor he was allowed to inspect the reimbursement register of 1992-93 and other connected record.
58. A complaint in this regard was made to the Enquiry Officer in his reply/representation vide letter dated February 26, 1996. In this representation apart from raising the aforesaid grievance, the petitioner, infer alia, submitted that in the charge-sheet, the charge with respect to the financial year 1992-93 and1993-94 has been mentioned whereas all the cheques which were the subject-matter of enquiry relate to the period 1993-94. Further it has not been indicated in the charge-sheet 'as to who was the person other than the Manager of the institution to whom the cheques were handed over and who opened the fictitious bank account.' As in case any fictitious bank account has been opened, the petitioner should have been made aware of the said name for meeting the charges. The petitioner in this representation submitted that the petitioner has not been supplied with the relevant documents and in the absence of evidence being made available to him, the petitioner may be allowed to cross-examine the concerned witnesses. However, it was also prayed that the petitioner be reinstated in service as he was not guilty of any charge.
59. The petitioner's request did not pay any result and the petitioner finding that probably enquiry proceedings would be completed ex parte, filed reply in absence of aforesaid documents on March 3, 1997. Soon thereafter within a period of three days, i.e., on March 6, 1997, the Enquiry Officer submitted his enquiry report to the Disciplinary authority. The Disciplinary authority on April 15, 1997, issued a show cause notice to the petitionerrequiring him to show cause as to why he may not be removed from the Government service. A copy of the enquiry report was also supplied to the petitioner.
60. From the enquiry report, it is apparent that the petitioner's grievance of non-supply of the documents mentioned at SI. Nos. (iii) to (v) and item No. (vi) which related to the items mentioned by the Enquiry Officer in his letter dated March 4, 1997, also finds mention in this report, when the petitioner further alleged that in absence of these documents, he finds himself unable to give an effective reply to the charge-sheet. The enquiry report further reveals that the Enquiry Officer has come to the conclusion that the counterfoil of one cheque was available in the office was received by the petitioner himself which fact was accepted by him before the Enquiry Officer on March 4, 1996, but so far the two other cheques are concerned, were said not to have been received by the Manager of the Sanjaya Gandhi Janta Sahayogi Madhyamik Vidyalaya, Jariyari, district Barabanki. Further the Enquiry Officer found that on the basis of record available in the office the signatures on the receipt of these two cheques tallied with the signatures of the Manager of Baba Ratandas Smarak Junior High School. Doodi, Mahmoodabad, Barabanki and therefore, these cheques have been handedover to the said Manager and not to the Manager of Sanjaya Gandhi Janta Sahayogi Madhyamik Vidyalaya, Jariyari, district Barabanki.
61. It is relevant to observe that these aforesaid records were not available in the office of the Enquiry Officer nor they were marked as a piece of evidence in the charge-sheet. It is not clear as to whether these records were ever shown to the petitioner or the copy of the same was provided to him or that he was allowed to adduce any evidence in rebuttal or to cross-examine the person whose signatures were said to be found on the counter foil of the cheques. The Enquiry Officer reliedupon the records and also upon the letter of the District Social Welfare Officer dated September 12, 1996, which was not even mentioned in the charge-sheet. Further the Enquiry Officer himself has found that while examining the record in the office for the year 1992-93, 1993-94, the petitioner was not even allowed to inspect the reimbursement register, the sanction orders and other relevant records. The Enquiry Officer also made some enquiry from one Chhotey Lal who was found present in the office who gave certain information but the petitioner was not afforded any opportunity even to cross-examine Chhotey Lal. The witnesses who have given statements in the preliminary enquiry, namely, the Manager of the institution was not even summoned in the departmental proceedings and the petitioner was not afforded any opportunity to cross-examine him. It is an admitted case that the petitioner was not associated in the preliminary enquiry and the entire material was collected in the preliminary enquiry without associating him.
62. Thus, it is apparent that the Enquiry Officer without giving any opportunity to the petitioner and without fixing the date and place for adducing the evidence to the petitioner and without permitting him to cross-examine the witnesses, namely, Chhotey Lal and the Manager of the institution, whose statement was relied upon and also without affording any opportunity of even inspection of documents submitted his enquiry report on the strength of the reply submitted by the petitioner within three dates from the date of the receipt of such reply. The records which were available in the office appears to have been seen by the Enquiry Officer himself and without giving any reasonable opportunity to the petitioner to make his defence on these records submitted his enquiry report despite the fact that he himself was of the view that the petitioner was not allowed to inspect the records.
63. In the case of State of U. P. v. Shatrughan Lal and another : [1998]3SCR939 , the Supreme Court observed that it is not sufficient to say that the petitioner was allowed to inspect but a date has to be fixed for inspection which should be duly communicated to the delinquent and access to the record should be permitted. In the absence of any such evidence, it cannot be said that reasonable opportunity was given to the delinquent. It is also settled that in case the delinquent is not supplied the copies of the relevant documents and he is not allowed to inspect the documents, he would not be in a position to give any effective reply to the charges levelled against him which deprives him of his legal and fundamental right to put his defence effectively. Holding of an enquiry in such circumstances, would be in gross violation of the principle of natural justice.
64. Besides this, certain record has been relied upon and the statement of witnesses have been relied upon which statement was either recorded during the course of enquiry in which the petitioner was not associated nor was he given opportunity to cross-examine which is again in violation of the principle of natural justice. The petitioner has, therefore, been deeply prejudiced and since he has not been afforded reasonable opportunity the enquiry report submitted by the Enquiry Officer could not have been made the basis for inflicting the punishment upon the petitioner.
65. Reliance has also been placed upon the case of Yash Pal Verma v. M/s. Hindustan Machines Tools Limited, 1994 (12) LCD 594, wherein it has been held that all the relevant documents which were relied upon in support of the charges were not furnished which prejudiced the defence, as such the disciplinary proceedings held against the petitioner were vitiated and the impugned orders are illegal and liable to be quashed.
66. The cases do come before the High Court in large number where no enquiry is held at all and orders imposing major punishment upon the Government servant are passed. In some cases, the charge-sheet is served and reply is asked for and on submission of reply without fixing date, time and place for holding the enquiry, the report is submitted, such a procedure has been found ab initio illegal and not in consonance with the procedure for holding the enquiry.
67. In the case of Uma Shanker Yadav v. Registrar Cooperative Society, 1992 (2) UPLBEC 849, the High Court found that it was incumbent on the enquiry officer to have sent a notice to the petitioner informing the date, time and place of enquiry so that the petitioner could produce his witnesses and cross-examine the witnesses. Since this was not done, rules of natural Justice have been violated.
68. Similar view has been taken in the case of Avtar Singh v. State of U. P. and another, 1987 (7) LCD. where the High Court found that the reasonable opportunity includes opportunity to cross-examine the witnesses relied in support of the charges and to lead his defence. Order passed only on charge-sheet and explanation filed by the employee is not sufficient and clearly violates CCA Rules. Article 311 of the Constitution of India as well as principles of natural justice.
69. Likewise in the case of Om Pal Singh v. District Development Officer. Ghaziabad and others, (2000) 2 UPLBEC 1591, where the High Court held that dismissal order passed after holding departmental enquiry wherein after service of charge-sheet and submission of reply no date was fixed for evidence or for examination of witnesses which clearly shows that the principle of natural justice were violated. Thus, the entire enquiry proceedings and the order of dismissal were bad and liable to be quashed including the order of dismissal.
70. Un-wholly haste and the proximity of dates, namely, the date of submission of reply to the charge-sheet on March 3, 1997 and the date of submission of enquiry report i.e.. March 6, 1997, do not call for any further scrutiny for holding that the Enquiry Officer did not follow the procedure and did not fix any date, time and place for holding departmental proceedings which was necessarily required for affording an opportunity to the petitioner to adduce evidence and to cross-examine the witnesses and to adduce the evidence in rebuttal. Non-supply of the documents relied upon against the petitioner, also vitiates the enquiry. This plea has been specifically urged by the learned counsel for the petitioner but has not been successfully rebutted by the learned counsel for the State rather no attempt has been made by him to controvert this plea.
71. The learned counsel for the State Sri Alok Sinha has seen the records which have been produced before this Court and has not been able to indicate that the Enquiry Officer has ever fixed any date for enquiry or place for holding the enquiry. The State also could not indicate from the record that the petitioner was ever afforded any opportunity to cross-examine the witnesses or inspect the records, a reference of which has also been made in the enquiry report itself. I, therefore, find that the enquiry proceedings are vitiated as they have been concluded in violation of principle of natural justice. The impugned order of punishment having been passed on such an enquiry, is vitiated and it can also not be allowed to sustain. The order of removal from service dated August 1, 1997, is hereby quashed. Let a certtorari be issued accordingly.
72. Since the enquiry has been vitiated for want of opportunity to the petitioner and also the same has been held in violation of the principle of natural Justice, therefore, it would be open for the opposite parties to hold an enquiry afresh from the stage of submission of reply to the charge-sheet. The petitioner shall either be given the copies of the relevant documents or shall be allowed inspection by communicating him specific date, time and place for the purpose and his accessibility to the records shall be ensured. The enquiry shall be completed within a period of three months from the date the certified copy of the order is produced before the authority concerned. The petitioner shall be reinstated 'in service. The liberty is given to the opposite parties to place the petitioner under suspension in case they feel necessary and to pay him subsistence allowance during the period of suspension. The payment of salary and the back wages including other emoluments for the period from the date of removal from service till the date of reinstatement shall depend on the final outcome of the enquiry. The writ petition is allowed. No order as to costs.