Allahabad High Court
Bijender Kumar vs State Of U.P. Thru. Addl. Chief Secy. … on 19 May, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2025:AHC-LKO:29274 Reserved Court No. - 3 Case :- WRIT - A No. - 3365 of 2025 Petitioner :- Bijender Kumar Respondent :- State Of U.P. Thru. Addl. Chief Secy. P.W.D. Lko. And 3 Others Counsel for Petitioner :- Avinash Tiwari Counsel for Respondent :- C.S.C.,Ranjana Agnihotri,Shishir Jain Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Avinash Tiwari, learned counsel for the petitioner, Sri Nitin Mathur, learned Addl. Chief Standing Counsel for opposite party no.1 and Ms. Ranjana Agnihotri, learned counsel for opposite parties no. 2 to 4.
2. By means of this petition, the petitioner has prayed for the following main reliefs:-
“(I) A writ, order or direction in the nature of certiorari quashing the impugned order dated 01.03.2025 passed by opposite party No.4, contained as Annexure No.1, with all consequential benefits, in the interest of justice.
(II) Any other order or direction which this Hon’ble Court may deem fit just and proper may also kindly be passed in favour of the Petitioner.
3. In the short counter affidavit filed on 23.04.2025 and counter affidavit filed on 08.05.2025, Ms. Ranjana Agnihotri has taken a specific objection regarding maintainability of the writ petition referring Para-706 of the U.P. Rajkiya Nirman Nigam Manual (hereinafter referred to as “the Manual”) submitting that there is a statutory prescription to the effect that the employee to whom the punishment has been awarded by the competent authority may appeal to the next higher authority; provided that if the Board of Directors is the appointing authority, the appeal will lie to the Government in Public Works Department of U.P. In paragraphs no.21 & 22 of the short counter affidavit and in paragraphs no.51 & 52 of the counter affidavit, the same objection has been raised referring one judgment of the Apex Court in re; Union of India v. T.R. Varma, 1957 AIR 882.
4. Before adverting to the merits of the case, firstly, I would deal the objection regarding maintainability of the writ petition so raised by Ms. Ranjana Agnihotri. The Apex Court in re; Genpact India Private Limited v. Deputy Commissioner of Income Tax & Anr., Civil Appeal No.8945 of 2019 (arising out of Special Leave Petition (Civil) No.20728 of 2019, vide judgment and order dated 22.11.2019, in paragraphs no.15 & 16 has held that if the alternative and efficacious remedy is available to the petitioner, he should first approach such remedy, thereafter may approach the writ court inasmuch as the alternative statutory remedy may not be circumvented. Paragraphs no.15 & 16 in re; Genpact India Private Limited (supra) are being reproduced herein below:-
“15. We now turn to the question whether the High Court was justified in refusing to entertain the writ petition because of availability of adequate appellate remedy. The law on the point is very clear and was summarised in Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603, as under:-
“11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, AIR 1958 SC 86, Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433, Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, and State of H.P. v. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499)
12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, AIR 1954 SC 207, Sangram Singh v. Election Tribunal, AIR 1955 SC 425, Union of India v. T.R. Varma, AIR 1957 SC 882, State of U.P. v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar, AIR 1965 SC 1321, Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436, S.T. Muthusami v. K. Natarajan, (1988) 1 SCC 572, Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75, Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293, Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 SCC 695, L.L. Sudhakar Reddy v. State of A.P., (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC 509, Pratap Singh v. State of Haryana, (2002) 7 SCC 484, and GKN Driveshafts (India) Ltd. v. ITO, (2003) 1 SCC 72]
…
15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, AIR 1964 SC 1419, Titaghur Paper Mills case4 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”
Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C., (2018) 3 SCC 85, the principles laid down in Chhabil Dass Agarwal (supra) were reiterated as under:
“The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal (supra) …”
16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition. The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was still at large.
In State of U.P. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti and others, (2008) 12 SCC 675, this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under:
“38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari vs. District Supply Officer, AIR 1992 All 331, that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that “petition cannot be rejected on the ground of availability of alternative remedy of filing appeal”. But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331)
“2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed.”
(emphasis supplied)
Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner.”
5. The Apex Court in re; Tamil Nadu Cements Corporation Limited v. Micro and Small Enterprises Facilitation Council and Another, (2025) 4 SCC 1, has held that if the alternative statutory remedy is available, before approaching the writ court, such remedy should be exhausted. Paragraphs no.58 & 59 in re; Tamil Nadu Cements Corporation Limited (supra) are being reproduced herein below:-
“58. Thus, it would be true to say that the existence of the statutory remedy does not affect the jurisdiction of the High Court to issue a writ. Nevertheless, the writ jurisdiction being discretionary by policy, the writ courts generally insist that the parties adhere to alternative statutory remedies, as this reinforces the rule of law. However, in exceptional cases, writ jurisdiction can still be exercised as a power to access the court for justice and relief.
59. It is in this context, that a Constitution Bench of five Judges way back in 1954 in Himmatlal Harilal Mehta v. State of Madhya Pradesh and Others, (1954) 1 SCC 405, had observed that the principle that the High Court should not issue a prerogative writ when an alternative remedy is available may not apply when the remedy under the statutes is onerous and burdensome in character, such as when the party has to deposit the whole amount of the tax before filing an appeal. An alternative remedy must be equally efficacious and adequate.”
6. Ms. Ranjana Agnihotri has enclosed one judgment of the Apex Court as Annexure No.5 to the short counter affidavit filed on 23.04.2025 i.e. State Bank of India and Ors. v. Narendra Kumar Pandey, Civil Appeal No.263 of 2013 [arising out of SLP (Civil) No.34118 of 2011], vide judgment and order dated 14.01.2013, wherein para-23 clearly mandates that the High Court cannot re-appreciate the evidence acting as a court of appeal, therefore, if alternative remedy is available, the same should be approached first. Para-23 in re; Narendra Kumar Pandey (supra) reads as under:-
“23. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well acceptable principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In State Bank of India and Others v. Ramesh Dinkar Punde (2006) 7 SCC 212, this Court held that the High Court cannot re-appreciate the evidence acting as a court of Appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.”
7. Having considered the aforesaid case laws and the specific provisions of Para 706 of the Manual, I am also of the considered opinion that since there is specific provision to file an appeal before the appellate authority, therefore, without entering into merits of the issue and without interfering the impugned order, I hereby dispose of this petition finally at the admission stage relegating the petitioner to file an appeal under Para 706 of the Manual before the appellate authority within fifteen days and if such appeal is filed before the appellate authority, the appellate authority is directed to consider and dispose of the appeal of the petitioner on merits, strictly in accordance with law, by speaking and reasoned order, by affording an opportunity of hearing to the petitioner, with expedition, preferably within a period of two months from the date of filing of appeal alongwith certified copy of this order and decision thereof shall be intimated to the petitioner forthwith.
8. It is needless to say that if the appellate authority provides an opportunity of hearing to the petitioner intimating the date for personal hearing, the petitioner shall avail such opportunity of personal hearing appearing before the appellate authority on the date fixed so that grievance of the petitioner would be appreciated by the appellate authority properly.
[Rajesh Singh Chauhan,J.]
Order Date :- 19.05.2025
RBS/-
