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Bal Kishan Tewari v. State Of U.P. And Others - WRIT - A No. 18988 of 2007 [2007] RD-AH 7065 (18 April 2007)


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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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