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Bal Kishan Tewari v. State Of U.P. And Others - WRIT - A No. 18988 of 2007  RD-AH 7065 (18 April 2007)
Civil Misc. Writ Petition No. 18988 of 2007
Bal Kishan Tewari ................................................................. Petitioner
State of Uttar Pradesh & others .............................. Respondents
Hon'ble Ashok Bhushan, J.
Heard Sri Ashok Khare Senior Advocate appearing for the petitioner.
By this writ petition the petitioner has prayed for quashing the order dated 23.2.2007 passed by the Managing Director, U.P. State Industrial Development Corporation Ltd., Kanpur. Learned counsel appearing for the respondents has raised preliminary objection that under rule 45 of the U.P. State Industrial Development Corporation Conduct and disciplinary appeal Rules, the order of dismissal can be appealed before the Chairman. Learned counsel for the petitioner contended that in the present case despite availability of statutory appeal the writ petition be entertained and the petitioner be not relegated to avail alternative remedy. It is submitted that there are serious allegations against the respondent no. 5 who has been influencing all the proceedings against the petitioner. It is further contended that the order has been passed in violation of principles of natural justice since the enquiry has been held in breach of principles of natural justice. The Chairman being the Member of Legislative Assembly shall also be under influence while deciding the appeal. He submits that the letter of the Special Secretary, Industrial Development Section as well as the letter of the Member of Parliament Sri Amar Singh was sent in the year 2005 to the Corporation with regard to getting enquiry conducted against the petitioner. He submitted that in view of aforesaid fact the petitioner be not relegated to statutory remedy of appeal.
I have considered the submissions of counsel for the petitioner and perused the record.
The petitioner has earlier come to this Court when the petitioner was dismissed from service, this Court allowed the writ petition No. 19028 of 2006 vide its judgement dated 19.4.2006 Annexure 26 to the writ petition, giving liberty to the respondent Corporation for issuing fresh charge sheet and undertake disciplinary proceeding against the petitioner in accordance with law. In view of the order of the High Court dated 19.4.2006 again proceedings were initiated by the Managing Director . It is settled that the availability of alternative remedy is not a bar to entrain the writ petition under Article 226 of the Constitution. However, there are exceptions laid down in exercise of jurisdiction of this Court to entertain the writ petition despite availability of alternative remedy. Apex Court in (1998) 8 Supreme Court Cases 1 Whirlpool Corporation Versus Registrar lof Trade Marks, Mumbai and others has laid down the exceptions to the general rule of not entertaining the writ petition when statutory remedy is available. The three exceptions noted where alternative remedy would not operate as bar are; (i) where the writ petition has been filed for the enforcement of any of the Fundamental Rights; (ii) where there has been a violation of the principles of natural justice; (iii) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. The present case cannot be said to be falling in any of the above exceptions. The order has been passed after disciplinary enquiry in which the petitioner participated . It is not a case of having passed the order without notice and opportunity. It can also not be contended that the order is without jurisdiction. Emphasis which has been laid by the counsel for the petitioner is that due to influence of the respondent no. 5 and the letters of the Special Secretary and the Member of Parliament as noted above, there will not be the dispassionate objective decision in his appeal. In the writ petition the allegation has been made against the respondent no. 5 and on the basis of the letter of the Special Secretary noted above, there are no allegations in the writ petition that the Chairman is under influence of the respondent no. 5 or is suffering from any other disability in deciding the appeal. Without there being any pleading or foundation it cannot be assumed that the Chairman shall not be able to decide the appeal fairly. The appellate forum is provided in the Disciplinary & Appeals Rules to give an opportunity to delinquent to raise his challenge both on facts and law. Thus I am satisfied that in the present case the petitioner be asked to avail his remedy of appeal.
In view of above, there is no case made out to entertain the writ petition in view of availability of right of appeal. The writ petition is dismissed on the ground of alternative remedy.
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