N.C. Mahendra Vs. the Haryana State Electricity Board and ors. - Court Judgment

S.S. Sandhawalia, C.J.

1. Whether the writ. Court is empowered to limit the scope of the lis in a petition under Article 226 of the Constitution of India to one or more specific grounds only, at the threshold stage of its admission is the significant question which necessitated this. reference to the Division Bench.

2. N. C. Mahendra petitioner was working. as an Executive Engineer under the Haryana State Electricity Board when, on 4th November, 1974; he was placed, under suspension in view of the departmental proceedings a against him. A charge-sheet was duly served on him on the l3th January; 1975 and after the completion of the enquiry; that followed, he was. served with a show cause notice as to why his three increments be not stopped with cumulative effect. On 11th July; 1977 he submitted a reply thereto, As averred by him, no punishment was inflicted on him and later he was promoted to the post of the Superintending Engineer vide order, Annexure P: 2, dated the l3th of September, l977. He was to remain on probation for a period of one year therefrom.

3. Later on the 2nd Dec., 1977, the petitioner submitted a detailed representation annexure P. B, to the respondent authorities claiming that he should be promoted with. retrospective effect from a back date when persons junior to him were promoted and as a consequential relief his seniority vis-a-vis his colleagues. be altered accordingly and the benefits regarding pay and allowances again with retrospective effect he given to him. According to the petitioner, the date from which he claimed at1 these benefits retrospectively worked to he the l6th May, 1974. In reply to this representation he was informed by respondent No. 1 vide annexure P. 9 dated the 7th July, 1978 that his claim for pay and allowances with retrospective effect was ill-founded as he had not worked during that Period. in the promoted rank. However his request for promotion with retrospective effect and seniority were kept under consideration. It would appear that. the petitioner's case was duly considered by the Haryana State Electricity Board at its meeting on the 9th September, 1977 which resolved as under:--

'His having been ignored from promotion for the last three years, was enough of a penalty to meet the ends of justice. It was decided that subject to above observations, the case against Shri Mahendra may be closed and that the proceedings so far taken against him should not stand in the way of his promotion on the next occasion'.

In accordance with the aforesaid Board's decision, the Petitioner was informed vide Annexure P-l0 dated the 3lst of August, 1978 that. the question of allowing any benefit whatsoever with retrospective: effect did not arise and his representation dated the 2nd December, 1977 was rejected in tote.

4. The writ petitioner challenged the aforesaid order. on a wide variety of grounds. The. Motion Bench issued a notice of. motion. In reply thereto a return was filed on behalf-of respondents 1 and 2 on the 9th November, 1978 and the case was adjourned for arguments. Patently on the basis of the pleadings. and after hearing the counsel the Motion Bench recorded the following order:--

'Admitted only in regard co seniority and pertaining. to salary for the period of suspension. Very early.'

When the case first Same up before my learned brother I. S Tiwana, J. sitting singly as many as six specific contentions on behalf. of the petitioner were sought to be raised. However, a preliminary objection at the very threshold was. advanced on. behalf of the respondents that the writ petitioner could not be permitted to do so and the matter must be confined only to seniority and salary for the period of suspension because of the order of the Motion Bench. This preliminary objection was controverted on behalf of the writ petitioner on the ground that in view of the. provisions of Order 41, Rr. 11 and 12 of the Civil P. C., the scope, of the challenge could not be restricted or limited in. spite of the afore-quoted order of the Motion Bench. Noticing some intricacy in the issue involved; the matter had been referred for decision on by the Division Bench.

5. As before the Single Bench, so before us; the primary argument of Mr. Kuldip Singh on behalf of the petitioner vas that the, Writ jurisdiction is, in essence; appellate in nature or in the alternative is akin t hereto. On this basic premise the provisions of Order 41 Rules 11 and 12 of Civi1 P. C. were invoked by virtue of Rule 32 of the Writ Jurisdiction ''(Punjab and Haryana) Rules, 1976, to contend that the writ petition having been admitted, it has to. be entertained as a whole. and the lis could not have been confined or limited by the Motion Bench. Precedentially, reliance was placed on, Eswariah v. Rameswarayya, ILR (1940) Mad 785: (AIR 1940 Mad 483) (FB),. which, in terms has been. followed in Kasi Viswanathan. Chettiar v. C. M. Chinnaiah. Chettiar;. (1977) 2 Mad LJ 524: (AIR 1978 NOC 117. (Mad))

6. It is oh ions. from the above that the foundational question herein is whether the writ jurisdiction is stricto sensu appellate in nature. For the reasons that. follow,. there seems to be no option but to answer this question in the negative. I believe it needs no great erudition to see that: a number of well known writs. are not even remotely appellate in essence. The celebrated writ of habeas corpus, for instance, may not be directed against any. specific order at all and may claim relief only against. the fact of unauthorised detention. Similarly, the writs of. prohibition, and quo warranto may equally be not invariably directed. against any. judicial or. quasi-judicial order as such. The position is analogous if not identical, in the case of a writ of mandamus as wel1. Even in the case of a writ of Certiorari, it cannot be said: inflexibly that. it partakes the nature of an appeal. In fact, the law on-the point is hallowed with the reiteration of the principle that the writ Jurisdiction not an. appellate jurisdiction.

7. Now apart from principle, the matter seems to be equally covered by the binding precedent.: It is unnecessary to multiply. the same. In the landmark case, Hari Vishnu Kamath v. Ahmad. Ishaque, AIR l955 SC 233,.it has been expressly observed as follows (at p 243):--

'...The Court issuing a writ of 'certiorari' acts in exercise of a supervisory and not. appellate jurisdiction. One consequence. of this is that the Court will not review findings of fact. reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has, jurisdiction to decide wrong as well as right, and when. the Legislature does not choose to confer a right. of appeal against that decision, it would be defeating its purpose and policy, if. a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions are well settled and are not in dispute.' In vie w of the above, the blanket submission that the writ jurisdiction is in strictitude an appellate jurisdiction necessarily attracting Order 41 of the Civil P. C., must be rejected.

8. Again the mellowed stand in the alternative that in any case the writ jurisdiction is akin to the appellate forum also does not seem to hold water. In M. R. v. Channarayapa v. The Tehsildar and Returning Officer, Malur, AIR1980 Kant 72, a somewhat similar question had arisen in the context of the Rule 39 of the Karnataka High court Writ Proceedings Rules, 1977(which appeared to be in pari materia with Rule 32 of the Writ Jurisdiction (Punjab and Haryana) Rules; 1976), it was held as follows (At p. 74):--

.'..By Rule 39 of the Rules, the provisions of the Civil P: C: in matters: not specifically dealt by the Rules and to the extent they are necessary, are made applicable to proceedings under Article 229 of the Constitution. In matters of procedure, it is permissible to rely on the provisions made in the Code with such modifications as are necessary in the context. I am, there fore, of the opinion that Order 27 of the C.P.C. is applicable to writ proceedings before this Court. In Order 27 of the C.P.C. we have to read the words 'writ petition' wherever the word 'suit' occurs.'

The aforesaid observations were quoted. with approval and affirmed by the Full Bench in-Teja Singh v. Union Territory of Chandigarh;1981 (1) Serv LR 274--:AIR1982 Punj & Har 169), in paras 20 and 21 of the report.

9. It then deserves highlighting that Order 41.of the code, as its very heading indicates, pertains to appeals from original decrees. Without doing violence to the language, one cannot easily imagine a writ petition as being as appeal from an original decree. Consequently the provisions of this Order prima facie may not be attracted. Even assuming it to be so, (however, entirely for argument's sake) I am inclined to hold that even placing the case of the writ petitioner at the highest, the matter again does not seem to be entirely in his favour on precedent as well, even in the strictitude of this appellate forum. Undoubtedly, the observations in vattipalle Eswariah's case (supra and the view therein do go in aid of the stand taken on behalf of the writ petitioner. However, an equally distinguished Bench presided over by Sir John Beaumont C. J. in Krishnaji shrinivas v. Madhusa Appansa, ILR 58 Bom 406 (AIR 1934 Bom 207), has observed as follows:--

'.......We are not prepared to go quite as far as Mr. Murdeshwar and to hold that an appeal must. be admitted in whole or rejected in whole. It. seems to us that if an appeal is severable it is open the Judge, hearing the appeal under Rule 11. dismiss in Part and admit it in part just as at the final hearing the Court may dismiss the appeal in pat and a1low it in part For instance, if an appeal. relates to two survey numbers. which are. held under distinct titles, we do not see any objection to the court dismissing the appeal a to one of the survey numbers, and dirceting notice to issue as to the other survey number:' Again Fazal Ali, J. speaking far the Division Bench in Rekha Thakur v. Ramnandan Rai (1936) ILR 15. Pat 96: (AIR 1936. Pat.7). held as under:--'**** At the same time it appears to me that if at the-time when the appeal is heard tinder Order 41, Rule 11, the appellate Court is informed' that the appeal will be confined to certain specified grounds only and that the other grounds are abandoned or if it is conceded on behalf of the appellant that the ground's other than those specified are not fit to be urged in appeal; there is nothing to prevent the Court before which the appeal is placed under O. 41, Rule 11 from making a note of this tact.'

It would thus appear that even within the strict parametres of Order 41 of the Civil P. C., there appears to be distinct discordance and authority is not lacking that the admission of an appeal may be confined to one or more clear cut severable issues. Precedent is thus divided on the point even in the context of appeals from original decrees preferred under the Code and I do not feel compelled to adjudicate on the issue in view of my earlier finding that the writ jurisdiction is in essence not an appellate jurisdiction at all.

10. In this context. it seems equal1y necessary to notice that the final Court even in the specific forum of the appel1ate jurisdiction, under. Article 136 of the Constitution of India, has by practice confined the admitted appeals to a limited point alone. This is not in dispute though the learned counsel for the writ petitioner had vaguely attempted to argue that this might be warranted by the rules framed by the Supreme Court though no specific provisions therefrom warranting the admission of an appeal on limited grounds alone could be brought to our notice. As at present advised I am inclined to take support from the fact that even in the final hierarchy of appeals by Special Leave to the Supreme Court, it is open to limit the admission to a part of the lis and not necessarily to the whole of it. Indeed, it would seem to. appear that other things apart, this may flow even from the inherent power of a Court of Record.

11. Altogether dehors the aforementioned considerations I would particularly wish to rest myself on the larger principle that the high prerogative writs enumerated in Article 226 of the Constitution are not to be confined to the procrustean bed of absolute procedural limitations. It is well-settled that he general principles of English Law applicable to the high prerogative writs have been incorporated and continued by virtue of Articles 32, 139 and 226 of the Constitution. It seems to follow therefrom that a Court of Record, empowered to issue these writs would have inherent power to limit or modulate the relief. The strongest, if not conclusive, support to view is received from the settled low that the power to grant relief in the writ jurisdiction is discretionary and cannot be claimed as a matter of absolute right. The writ court admittedly in its discretion, (even though it has to be necessarily judicial) can decline to issue 9 writ for and wide variety of reasons Indeed that is the point of sharp distinction between the remedy by way of a writ and that by way of a suit whilst the relief in the latter can be claimed ex debito justitiae. It is only discretionary in the former. Now if in a writ petition relief may be refused as a whole for a number of considerations, it would follow that the same may be refused in part. It is axiomatic that the whole includes the part, and if relief can be denied entirely, it can obviotts1y be denied partially. To put it in the converse, the prayer of relief may be limited to part of the whole claim only. This larger perspective seems to be common both in the earlier English law also to what is now settled within this diction as well. One need not go further back then recalling the following observations of the House of Lords in Queen v. Churchwardens of A11 Saints Wigan, (1876) 1 AC 611, as under

'Now there appears. to me to have been some little confusion upon this subject, which can easily be removed: writ of mandamus is a prerogative writ and not a writ of right, and it is in the sense in the discretion of the Court whether it shall be granted or not. The Court may refuse to grant the writ not only upon the merits, but upon some delay, or other matter, personal to the party applying for it; in this the Court exercises a discretion which cannot be questioned. So in cases where the right in respect of which a rule for a mandamus has been granted, upon shewing cause Appears to be doubtful the court frequently grants a mandamus in order that the right may be tried upon the return; this also is a matter of discretion......'

It would be wasteful to further quote extensively in support of the aforesaid basic proposition and reference may instructively be made to Queen v. garland, (1870)5 QB 269 (272) and Regina v. Brentwood Supdt., Registrar of Marriages; Ex. p. Arias, (1968) 2 QB 956 (970)

12. An identical lega1 position enures within this country and High Courts have repeatedly held that the exercise of jurisdiction under Article 226 of the Constitution is discretionary and not obligatory. without being exhaustive, it is settled law that the Court would not ordinarily issue a Writ in favour of a person, who has (i) an adequate alternative remedy, (ii) who is guilty of delay Which is unexplained, (iii) who is guilty of conduct disentitling him to relief, (iv) where the interests of justice do not require that relief should be granted, (v) where the petitioner raises a disputed question of fact, (vi) where the grant of writ. would be futile, and, (vii) where the impugned law has not come into force. it would follow from the above that the rant or refusal of a writ is within the judicial discretion of the Court and that indeed is the line which divides the extraordinary remedy from the ordinary one by way of a civil suit

13. Now once it is settled, as inevitably it must be, that the right to claim the relief is subject to the discretion or the court a fortiori, if instead of declining the relief altogether, it is limited or confined by the court there cannot possibly be any quarrel therewith. The answer to the question posed at the outset has, therefore, to be rendered in the affirmative, and it is held that the Motion Bench is empowered to limit the admission of a writ petition to one or more specific grounds only.

14. Once it is held as above, the learned counsel for the petitioner had been fair enough to say that on the limited issues to which the admission stood confined, he had little or indeed nothing to urge. Admittedly, the highest body of the Haryana state electricity Board had fully considered the,matter and for good reasons declined the petitioner's claim for benefits with retrospective effect. Obviously enough, the petitioner has no inflexible right to claim promotion form a deemed date with retrospective effect and the consequential benefits of pay and seniority therefrom. He could, at best, claim a consideration of the matter which has been admittedly dome. Clearly enough, no mandamus can issue that a fictional deemed date of promotion must be accorded to the petitioner when, in face, such promotion took place much later on September 13, 1977. The writ petition is consequently dismissed without any order as to costs.

15. Petition dismissed.