Anjani Kumar, Sudhir Agarwal - (1.) -The petitioner aggrieved by the order dated 7th May, 2007, passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as 'Tribunal'), whereby Orginal Application No. 457 of 2007 filed by the petitioner has been disposed of by the Tribunal observing that against the order of suspension the petitioner has remedy of review under Rule 29A of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as '1965 Rules') and in case such an application is filed, the same shall be decided in accordance with law within a period of three weeks, has approached this Court under Article 226 of the Constitution of India contending that the order of suspension, impugned before the Tribunal, being wholly without jurisdiction the Tribunal erred in law by declining to consider this aspect of the matter.
(2.) THIS writ petition came up before this Court for admission on 21st May, 2007 as a fresh matter. The respondents put in their appearance through Sri Subodh Kumar, learned counsel filed two counter-affidavits one on behalf of respondents 1 and 2 and another on behalf of respondents 3 and 4, copies whereof were already served upon learned counsel for the petitioner on 20th May, 2007. Learned counsel for the petitioner, in the circumstances, requested for 24 hours time to file rejoinder-affidavit and with the consent of learned counsel for the parties, the matter was adjourned for 22nd May, 2007 on which date the petitioner filed rejoinder-affidavit. Since pleadings are complete, therefore, with the consent of learned counsel for the parties, the matter has been heard and is being decided finally at this stage under the Rules of the Court. The facts in brief are that the petitioner, who was working as Telecom District Manager, B.S.N.L. posted at Rampur was placed under suspension vide order dated 17th April, 2007, alleging that a case against him in respect to a criminal offence is under investigation and therefore he is being placed under suspension. It is alleged by the petitioner that neither any criminal investigation or trial, nor any enquiry is pending against him, inasmuch as till date no first information report (hereinafter referred to as 'F.I.R.') or criminal complaint has been filed against him at any police station. He has further alleged that it is claimed that a private television news channel IBN-7 telecasted a news item claimed to be based on sting operation in which the petitioner was shown accepting gratification for awarding the security work providing security (watch and ward services) of Telecom installation/premises of Rampur S.S.A. of B.S.N.L. However, neither any departmental inquiry is contemplated nor pending against him. Therefore order of suspension passed by the respondent is beyond the purview of sub-rule (1) of Rule 10 of 1965 Rules and is wholly without jurisdiction. He further contended that Rule 29A of 1965 Rules was not at all applicable in the case in hand and the Tribunal erred in law in relegating the petitioner to avail such remedy instead of considering the matter on merits. The respondents, on the other hand have stated in the counter-affidavit admitting that the petitioner was placed under suspension prima facie on the basis of news telecast on IBN-7 news channel, wherein he was allegedly found indulged in corrupt practice of taking bribe to award work of supply of security guards, in respect whereof the department has initiated investigation and handed over the matter to C.B.I., Dehradoon for further investigation. Though it is correct that neither any F.I.R. has been lodged against the petitioner till date, nor any criminal complaint has been registered, nor any departmental enquiry is contemplated or pending, at this stage, since the matter is under investigation before C.B.I., hence the petitioner has been under suspension under sub-rule (1) of Rule 10 of 1965 Rules. Lastly it is contended that even otherwise also it is not a fit case in which this Court should interfere under Article 226 of the Constitution of India.
(3.) WE have heard learned counsel for the parties and perused the records. It is no doubt true that normally this Court decline to entertain a matter under Article 226 of the Constitution of India where a litigant has a statutory alternative remedy, unless such remedy is availed. However, there are certain exception, namely where order impugned in the writ petition has been passed in violation of principles of natural justice or is wholly without jurisdiction or has violated the fundamental rights or vires of the Statute is under challenge. However, in the case in hand prima facie we are of the view that Rule 29A of 1965 Rules would not have attracted and therefore the petitioner does not have a statutory alternative remedy. Rule 29A of 1965 Rules are quoted as under : "29A. Review.-(1) The President may, at anytime, either on his own motion or otherwise, review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice : Provided that no order imposing or enhancing any penalty shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in Rule 11 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under Rule 14 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 14, subject to the provisions of Rule 19, and except after consultation with the Commission where such consultation is necessary.";