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Case Details

1 W. P. (S) No. 5616 of 2003 In the matter of an application under Article 226 of the Constitution of India Nimai Chandra Gorai ------ Versus ... ... Petitioner 1. Steel Authority of India Limited, New Delhi through its Chairman 2. Bokaro Steel Plant, Bokaro Steel City, Bokaro, through its Managing Director 3. Managing Director-cum-Disciplinary Authority, Bokaro Steel Plant, Bokaro 4. Sri R.V. Singh, Superintendent (Training)-cum- Inquiring Authority in the office of the General Manager (H.R.D), B.S. City, Bokaro 5. Executive Director (F&A), Bokaro Steel Plant, ... B.S. City, Bokaro ... ------ Respondents For the Petitioner For the Respondents : Mr. Anoop Kumar Mehta, Advocate : Mr. Raunak Sahay, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------ By Court: The petitioner has approached this Court seeking quashing of the dismissal order dated 22.05.2003. 2. The brief facts of the case are that, the petitioner was appointed on the post of Assistant on 02.05.1970. On 03.05.2002, a charge-memo was served upon the petitioner and after an enquiry, the enquiry report dated 13.11.2002 was submitted. The order of penalty dated 22.05.2003 was passed against the petitioner and therefore, the petitioner has approached this Court by filing the present writ petition. 3. A counter-affidavit has been filed by the respondents stating as under:

Legal Reasoning

require any interference by this Court in exercise of power under Article 226 of the Constitution of India. He relies on the decisions of the Hon'ble Supreme Court in the case of “Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors.”, reported in AIR 1958 SC 398, “The State of Orissa & Anr. Vs. Murlidhar Jena”, reported in AIR 1963 SC 404, “State of Orissa & Ors. Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779 and “Syed Yakoob Vs. K.S. Radhakrishnan & Ors.” reported in AIR 1964 SC 477. to fortify his contention that even if some of the charges have been found proved during the departmental enquiry, the Court would not interfere in the matter, as the High Court is 5 not constituted as a Court of Appeal over the decisions of the departmental authority. He relies on the decision of the Hon'ble Supreme Court rendered in “State of Andhra Pradesh and others Vs. Chitra Venkata Rao”, reported in (1975) 2 SCC 557, in support of his contention. The learned counsel for the respondents has further submitted that since there is a distinct difference between the role played by Mr. N.N. Sinha and the present petitioner, the plea of parity taken by the learned counsel for the petitioner is not correct on the face of the record. A categorical finding has been recorded against this petitioner that he is the person who was responsible for physically submitting the cheque in the Bank and the delayed submission of the cheques has been admitted by this petitioner and therefore, the matter does not require interference of this Court. He has raised a preliminary objection that since there is a specific provision of appeal, the remedy of which the petitioner has not availed of, therefore, this Court may not exercise its discretionary jurisdiction in favour of a delinquent employee, who has been found guilty, in a properly constituted disciplinary proceeding. 8. After having appreciated the rival contentions raised by counsel for both the parties, it would be useful to notice the judgments of the Hon'ble Supreme Court, relied upon by the learned counsel for the respondents. The nature of the 'error of law' which would attract the justification of the High Court under Article 226 and 227 of the Constitution of India, has been discussed by a Constitution Bench of the Hon'ble Supreme Court in the case of “Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors.”, reported in AIR 1958 SC 398 as under : 26. “But the question still remains as to what is the legal import of the expression 'error of law apparent on the face of the record.' Is it every error of law that can attract the supervisory jurisdiction of the High Court, to 6 quash the order impugned? This court, as observed above, has settled the law in this respect by laying down that in order to attract such jurisdiction, it is essential that the error should be something more than a mere error of law; that it must be one which is manifest on the face of the record. In this respect, the law in India and the law in England are, therefore, the same. It is also clear, on an examination of all the authorities of this Court and of those in England, referred to above, as also those considered in the several judgments of this Court, that the common-law writ, now called order of certiorari, which was also adopted by our Constitution is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.” 9. In the case of “The State of Orissa & Anr. Vs. Murlidhar Jena”, reported in AIR 1963 SC 404, again a Constitution Bench of the Hon'ble Supreme Court has held that High Court has no power to re-appreciate evidence recorded in a departmental enquiry in exercise of powers under Article 226 and 227 of the Constitution of India. It has been held, 14. “There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgment indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to 7 the question about be made in regard to the discussion in the judgment of the High Court where it considered the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that - Chatrapur Saheb meant the respondent would not be justified." This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate.” 10. In the case of “State of Orissa & Ors. Vs. Bidyabhushan Mohapatra”, reported in AIR 1963 SC 779, the issue which fell for consideration before the Constitution Bench of the Hon'ble Supreme Court was whether in exercise of powers under Article 226 of the Constitution of India, the High Court can ask to reconsider the order of dismissal. The Hon'ble Supreme Court has held as under : “9. The High Court has held that there was evidence to support the findings on heads (c) and (d) of Charge (1) and on Charge (2). In respect of charge 1 (b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed." The recommendation of the 8 Tribunal was undoubtedly founded on its findings on charges 1(a), 1(e), 1(c), 1(d) and Charge (2). The High Court was of the opinion that the findings on two of the heads under Charge (1) could not be sustained, because in arriving at the findings the Tribunal had violated rules of natural justice. The High Court therefore directed that the Government of the State of Orissa should decide whether "on the basis of those charges, the punishment of dismissal should be maintained or else whether a lesser punishment would suffice." It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1 (a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. ..............The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable" the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been 9 complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanor for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction of the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanor, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation - of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question.” 11. The jurisdiction of High Courts under Article 226 of the Constitution of India in issuing a 'writ of certiorari' has been settled by a Constitution Bench of the Hon'ble Supreme Court in the case of “Syed Yakoob Vs. K.S. Radhakrishnan & Ors.” reported in AIR 1964 SC 477 as thus: “7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate 10 Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104: ((S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.” 12. In “State of Andhra Pradesh & Ors. Vs. Chitra Venkata Rao”, reported in (1975) 2 SCC 557, the Hon'ble Supreme Court has held that the High Court is not a Court of Appeal under Article 226 over the decision of the authorities holding a departmental enquiry against the public servant. Taking note of the judgment in 11 “State of Andhra Pradesh and others Vs. S. Shree Rama Rao” reported in (1964) 3 SCR 25, the Hon'ble Supreme Court has observed as under, 21. “The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. (1964) 3 SCR First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the 12 very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.” 13. There cannot be any dispute in so far as the law as laid down by the Hon'ble Supreme Court, with respect to the power and jurisdiction of High Courts to interfere with the findings in the departmental enquiry, is concerned. In the present case, the management has led evidence to establish the delayed payment of cheques. This is not a case of 'no evidence' against the petitioner and therefore, I find merit in the contention raised by the learned counsel for the respondents that this Court should not interfere with the findings recorded in the departmental enquiry. But, the contention raised before this Court in the present proceeding is, whether the disciplinary authority was justified in imposing the extreme penalty of dismissal from service upon the petitioner whereas, another similarly charged delinquent employee namely, N.N. Sinha has been let off with a penalty of reduction to the lower scale of Rs. 6400-200-11400/- (S 10) to the scale of Rs. 5800-179-7053-186-9471/- (S 9) with effect from 24.04.2002. Before examining the plea of 'parity in punishment', I propose to examine the law on this issue. 14. In “Director General of Police & Ors. Vs. G. Dasayan”, reported in (1998) 2 SCC 407, three Constables and one Head Constable were charged for the same acts of misconduct, however, the disciplinary authority exonerated the two other Constables and imposed the punishments of compulsory retirement on the Head 13 Constable whereas, one G. Dasayan was dismissed from service, the Hon'ble Supreme Court, applying the principles of parity in punishment among co-delinquents, substituted the order of compulsory retirement in place of the order of dismissal from service on the said G. Dasayan. 15. In “Anand Regional Coop. Oil Seedsgrowers' Union Ltd. Vs. Shaileshkumar Harshadbhai Shah”, reported in (2006) 6 SCC 548, the delinquent workman and six others held a meeting of the staff without obtaining permission from the management and made serious allegations against the Chief Executive Officer, calling for his ouster. The charge of misconduct against the delinquent workman stood proved in a domestic enquiry, however, the High Court held the punishment imposed upon the said delinquent employee excessive. The Hon'ble Supreme Court has held as under, 26. “A wrong test was applied herein by the Labour Court in observing “If the nature of the offence is grave he could have been inflicted punishment of stoppage of the increments”. On what premise the said observations were made is not known. 27. There is, however, another aspect of the matter which cannot be lost sight of. Identical allegations were made against seven persons. The management did not take serious note of misconduct committed by six others although they were similarly situated. They were allowed to take the benefit of the voluntary retirement scheme. 28. The first respondent might not have opted therefor. However, having regard to the peculiar facts and circumstances of this case, he should be, in our opinion, treated on a similar footing. In view of the fact that the first respondent has succeeded in the Labour Court and the learned Single Judge as also the Division Bench; we are of the opinion that having regard to the overall situation, the interest of justice would be subserved if the award of the Labour Court dated 31-1-2003 as affirmed by the High Court 14 is substituted by a direction that the first respondent shall also be given the benefit of voluntary retirement scheme from the month in which the other workmen were given the benefit thereof.” 16. In “Rajendra Yadav Vs. State of Madhya Pradesh & Ors.”, reported in (2013) 3 SCC 73, the Hon'ble Supreme Court has observed and held as under, 8. “We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both the appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was lighter inflicted comparatively a punishment. At the same time, the appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained. 9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co- delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The impose disciplinary authority punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.” cannot 15 17. Now, coming to the facts of the case, the documents on record clearly indicate that the charges as framed against the said N.N. Sinha and the petitioner are identical. The charges framed against the petitioner are as under: 1. He acted with a malafide intention and in collusion with another Assistant who was responsible for checking the pay-in slips and financial instruments before the same were handed over to him for physically submitting the financial instruments before the Company's Bank for encashment, in delaying the high value local cheques of M/s Vikas Steel from submitting before the Company's Bank on the day these were required to be submitted as per pay-in slips prepared through computer print-out. This resulted into financial loss to the Company and gain to the Party. 2. He tampered with the official documents viz second copy of the pay-in slips for the purpose of hiding his misdeeds from investigation. 18. The charges framed against the said N.N. Sinha are extracted below: 1. He acted with a malafide intention and in collusion with another Assistant who was responsible for physically submitting the financial instruments before the Company's Bank for encashment, in delaying the submission of local cheques of M/s Vikas Steel before the Company's Bank on the day these were required to be submitted as per pay-in slips prepared through computer print-out. This resulted into financial loss to the Company and gain to the Party. 2. He failed to keep the official documents safely and handed over to Vigilance 16 Department, the tampered official documents viz second copy of the pay-in slips for the purpose of hiding his misdeeds from investigation. 19. It would also appear from perusal of the charges framed against both the delinquent employees that the charges have been framed under Rule 5(x), 5(xxii), 5(xxx) of Discipline & Appeal Rules. 20. The enquiry officer has concluded in the case of the petitioner, as thus; After considering the statements, the examination-in- chief, the cross-examination and also on perusal of related documents, the Inquiry Committee arrived at the following conclusions: (i) The first charge, i.e. Shri N.C. Gorain in collusion with another Assistant delayed the submission of high value local cheques of M/s Vikas Steel in the company's bank on the day these were reacquired to be submitted as per pay-in- slips prepared through computer, is proved. (ii) The second charge, i.e. Shri N.C. Gorain tampered with the official documents viz second copy of pay-in-slips for the purpose of hiding his misdeeds from investigation, is proved. 21. The enquiry officer has recorded a finding of misconduct against another delinquent employee namely, N.N. Sinha and concluded as under: * the first charge i.e. Shri NN Sinha, acted with malafide intention and in collusion with another Assistant who was responsible for physically submitting the instruments before the Company's Bank for encashment, in delaying the submission of local cheques of M/s. 17 Vikas Steel before the Company's Bank on the days these were required to be submitted, is proved. * the second charge that Shri NN Sinha failed to keep the official documents safely and handed over to Vigilance Department the tampered official documents with second copy of pay-in- slips for the purpose of hiding his misdeeds from investigation, is also proved. 22. A perusal of these documents on record would clearly indicate that the enquiry officer has concluded that the petitioner and N.N. Sinha, another delinquent employee are responsible for the delayed submission of the cheques. However, in case of said N.N. Sinha, the following penalty has been imposed, i.e. from the scale of “As Shri Sinha has already retired from the services on 30th Sept. 2002, Disciplinary Authority is inclined to take sympathetic view and impose the penalty of reduction to the lower Rs. grade 6400-200-11400/- (S 10) to the scale of Rs. 5800-179-7053-186-9471/- (S 9) with effect from 24.04.2002. On reduction to the lower grade as aforesaid, the basic pay of Shri Sinha shall be fixed at lowest stage i.e. Rs. 5,800/-. The amount recoverable on this account may be realized from the amount payable to Shri Sinha.” 23. From the aforesaid, it is clear that the charges against the petitioner as well as co-delinquent- N.N. Sinha were the same and the enquiry officer has recored identical findings with respect to both the co-delinquents, even though the role played by the petitioner and the said N.N. Sinha was different. A perusal of the enquiry report would also indicate that it has been admitted by the management witness that on the instruction of Shri R.N. Das, the instruments were deposited in the Bank belatedly. It has also been 18 admitted during the departmental enquiry that Shri N.C. Gorain after having entered the dishonoured cheques in the register used to bring the same before Shri R.N. Das. Another management witness has admitted that the petitioner as well as N.N. Sinha were reporting to Shri R.N. Das and Shri R.N. Das failed to inform the superior officers about the late submission of the documents in the Bank. There is no material on record to indicate who is the person who is responsible for tampering with the documents, though the enquiry officer has presumed that the petitioner colluded with Shri N.N. Sinha and tampered the documents. In view of the law laid down by the Hon'ble Supreme Court as noticed above, the extreme penalty of dismissal from service could not have been imposed upon the petitioner, more particularly because co-delinquent namely, N.N. Sinha has been awarded a lesser punishment and the penalty of dismissal would deprive the petitioner of the benefit of his past service of 30 years. 24. However, these are not the only issues in this writ petition. There is another aspect of the matter which cannot be left unattended. Relying on the stand taken in the counter-affidavit, the learned counsel appearing for the respondents has contended that, since the petitioner has not availed of the remedy of appeal, the present writ petition is not maintainable. The rule of alternative remedy has been stated by Willes, J. in “Wolverhampton New Waterworks Co. Vs. Hawkesford”, reported in (1859) 6 CBNS 336, in the following passage: ‘… There are three classes of cases in which a liability may be established founded upon a statute. … But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the 19 second class. The form given by the statute must be adopted and adhered to.’ 25. In “Thansingh Nathmal Vs. Supt. Of Taxes”, reported in AIR 1964 SC 1419, the Hon'ble Supreme Court has held as under, 7. “Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extra-ordinary jurisdiction of the High Court under Art. 226 and sought to re- open the decision of the taxing authorities on question of fact.The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the 20 aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” 26. In “Titaghur Paper Mills Co. Lte. Vs. State of Orissa”, reported in (1983) 2 SCC 433, the Hon'ble Supreme Court has held, “It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.” 27. In “State Bank of India & Ors. Vs. Narendra Kumar Pandey”, reported in (2013) 2 SCC 740, the Hon'ble Supreme Court found interference by the High Court with the order of dismissal passed by the appointing authority not justified, specially because service rules provided for an alternative remedy of appeal. The Hon'ble Supreme Court has observed as under, 25. “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-accepted 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 SBI v. Ramesh Dinkar Punde5 this Court held that the High Court cannot reappreciate the evidence acting as a court of appeal. We have, on facts, found that no procedural irregularity 21 has been committed either by the Bank, presenting officer or the inquiring authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.” 28. In the present case, the petitioner has not preferred appeal before the appellate authority and the petitioner has not been able to establish a case for exercise of discretionary jurisdiction by this Court and therefore, I am in complete agreement with the learned counsel for the respondents that the petitioner should first avail of remedy of appeal before the

Arguments

20. "That with reference to paragraph 2 (ix) of the writ application, I say that the petitioner kept Shri R.N. Das in dark. He did not disclose his act of 2 malafide intention that he was delaying the submission of local cheques of M/s. Vikas Steel before the company's Bank on the day, the cheques were required to be submitted. As such no discrimination has been made. 24. That with reference to paragraph 2 (xiii) of the writ application, I say that the contention of the petitioner is not true, hence denied. I say that the petitioner was responsible for physically submitting the financial instruments before the company's Bank for encashment of cheques, in delaying the submission of local cheques of M/s. Vikas Steel before the company's Bank on the day these were required to be submitted. This tactics of delay in submission resulted into financial loss to the company and gain to the party. 25. That with reference to paragraph 2 (xiv) of the writ application, I say that Bank Guarantee is required to be availed when no cheques are submitted in time, i.e., when party becomes defaulter. Here, the case is that the party was submitting the cheques in time, but concerned dealing person was keeping it pending for personal and party's gain and loss to the company. 41. That with reference to the statement made in paragraph 21 of the writ application, I say that the petitioner had himself confirmed in his statement given to the Vigilance (MD-5) that he was depositing the cheques of M/s. Vikas Steel in the company's Bank after delaying for few days on the instructions of Shri N. N Sinha. The claim of the petitioner that his controlling officer was Shri R. N. Das, is not tenable because he could not produce any document evidence/office order in support of the same. 42. That with reference to the statement made in paragraph 22 of the writ application, I say that the claim of the petitioner that his Controlling Officer was Shri R. N. Das is not tenable because he could not produce any documentary evidence/office order in support of the same. As far as the charges levelled against the petitioner so far late submission of cheques in company's Bank and tampering of official documents are concerned, are proved for which documentary evidences are also available. 3 That I say that in respect of other officials who 58. were involved in the racket regarding the transactions with M/s. Vikas Steel case have also been prosecuted by the respondents, details of which are as follows:- (i) (ii) Shri N. Roychoudhary, C.F.M. (S & E) was removed from services with effect from 04.08.2003. Shri Ajay Kumar, Incharge of Cash Section was awarded with punishment of reduction in pay by three stages in existing time scale of pay for two years without on 20.01.2003. cumulative effect (iii) Shri Subrato Roy, Dy. C.F.M. (Cash) was awarded punishment of censure. (iv) Shri S. K. Choudhary, G.M. (F & A) was awarded punishment of censure. (v) Shri Rajesh Kumar, Cash Section was awarded punishment of removal from service. (vi) Shri N. N. Sinha was awarded punishment of reduction to lower grade S9 (Lowest pay) from 24.04.2002, by order dated 30.07.2003. from S10 (vii) Shri S. Prasad, D.G.M. is being proceeded against departmentally and the departmental proceeding against him is pending. (viii) Shri V. K. Singh has been awarded punishment of reduction to lower grade, minimum of scale E6 to E5 (minimum). (ix) Shri P. Damodaran was awarded punishment of reduction in pay by two steps for two years without cumulative effect by order dated 20.01.2003.” 4. A supplementary affidavit has been filed on behalf of the petitioner bringing on record the charge-memo, enquiry report 4 and the order of punishment passed in the case of another delinquent employee namely, N.N. Sinha. 5. Heard the learned counsel appearing for the parties and perused the documents on record. 6. Mr. Anoop Kumar Mehta, the learned counsel appearing for the petitioner, has contended that since the charge as framed against the petitioner is identical to the charge framed against another delinquent officer namely, N.N. Sinha and the enquiry officer has also concluded that both the delinquent employees were responsible for delayed submission of the cheques in the Bank, the disciplinary authority should have imposed a similar punishment upon the petitioner, as has been awarded to said N.N. Sinha. He has further raised a contention that the penalty order dated 20.05.2003 merely recites that the disciplinary authority while agreeing with the enquiry report, decided to dismiss the petitioner from service and therefore, the impugned order is liable to be quashed. 7. As against the above, Mr. Raunak Sahay, the learned counsel appearing for the respondents contended that, since the charges against the petitioner have been found proved in a properly constituted departmental enquiry, the matter does not

Decision

appellate authority. The writ petition has remained pending for about 10 years in this Court and therefore, it would serve the ends of justice, if the petitioner is granted a liberty to prefer an appeal. As noticed hereinabove, since the disciplinary authority has failed to maintain the parity in punishment when awarding punishment to the petitioner and the said N.N. Sinha, it would be more appropriate to permit the petitioner to approach the appellate authority raising all such grounds which are available to him in law. 29. Accordingly, the petitioner is granted a liberty to prefer an appeal within a period of eight weeks and the appellate authority is directed to decided the appeal, if preferred by the petitioner, within a period of next eight weeks from the date of filing of the appeal. 30. The writ petition is disposed of with the aforesaid direction. (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 26/07/2013 Manish/N.A.F.R.