TYAGI, J. - (1.) -
(2.) PETITIONER M. R. Arjuna, who was a Wireless Inspector (Maintenance) in the Northern Railway, has filed this writ application under Art. 226 of the Constitution. The case of the petitioner is that on 11th October, 1961, when the petitioner was posted as Wireless Inspector (Maintenance) at Amritsar a charge sheet containing various charges was served on him. He was again served with a second charge sheet dated 26th of February, 1962 The department superceded both these charge sheets and served the petitioner with one consolidated charge sheet dated 1st of June, 1962 containing almost the same charges as were contained in the previous charge sheets. The allegation of the petitioner further is that the department further served the petitioner with another charge sheet dated 4th of June, 1962 and thereafter fresh charge sheet dated 11th of June 1962 was again given to him. It is ultimately these later three charge sheets which formed the basis of the enquiry resulting in the petitioner's dismissal from service. It is alleged that the petitioner submitted his reply to all the charges contained in the aforesaid three charge sheets and along with his reply he submitted the list of defence witnesses and the list of the documents on which he wanted to rely in support of his defence. The case of the petitioner is that after having received the first charge sheet he made an application for the inspection of certain documents on 6th of March, 1962 but he was not allowed to inspect those documents. Another application dated 10th of April, 1962 was made by the petitioner for the inspection of documents but he was not permitted to have an access to these documents. He, therefore, approached the Divisional Personal Officer, Ferozepore, respondent No. 6, on 15th May, 1962, to allow the inspection of the documents mentioned in his application, but unfortunately his approach to the Divisional Personnel Officer also could not bring any fruitful result An enquiry officer was appointed by the General Manger, Northern Railway, New Delhi for holding an enquiry against the petitioner. The enquiry commenced on the 18th of January, 1963. The witnesses produced by the Department were examined by the Enquiry Officer. Thereafter, the petitioner was directed to produce his defence evidence. The petitioner made a request to the Enquiry Officer to summon the defence witnesses whose names had already been submitted by him. But, according to the allegations made by the petitioner, the statements of the defence witnesses could not be recorded on various dates when they presented themselves before the Enquiry Officer. The petitioner had given a long list of witnesses whom he wanted to examine but in spite of his request, the Enquiry Officer failed to examine them on one plea or the other. It is alleged in para 11 of the Writ petition that the Enquiry Officer informed the petitioner that six persons who halve been named in the said paragraph, expressed their unwillingness to appear before the Enquiry Officer as defence witnesses. The grievance of the petitioner is that on enquiry he came to know that the defence witnesses mentioned in paragraph 12, who are also six in number, were never summoned by the Enquiry Officer though the petitioner was informed that all the defence witnesses who were summoned but they did not turn up. After the enquiry was over, the report of the Enquiry Officer containing his findings was submitted to the General Manager, Northern Railway. Thereafter the Chief Signal and Telecommunication Engineer, New Delhi served a notice on the petitioner to show cause why he should not be removed from service The petitioner submitted his reply before the said officer on 7th of February, 1966, but it appears that the reply submitted by the petitioner did not find favour with the disciplinary authority and the General Manager by his order dated 10th August, 1966 (Ex. 26) removed the petitioner from service taking the charges of misusing labour and claiming and drawing forged T. A. as established against him. The petitioner then filed an appeal before the Railway on 7th of October, 1966. A reminder was sent by the petitioner to the Railway Board to expedite the disposal of his appeal on 25th of February, 1967. When the reminder did not bring the desired result, the petitioner wrote through his counsel and submitted a request to the Chairman Secretary, Railway Board, requesting them to decide the case within 15 days from the date of the receipt of the said request. This was done on 11th April, 1967. On 26th of April, 1967, the petitioner's counsel sent a telegram to the Railway Board praying that the appeal may be decided expedi-tously but all these efforts on the part of the petitioner did not bear any fruits. Petitioner awaited the result of his efforts to get his appeal decided for about five months but when he did not receive any reply from the Railway Board, he filed the present writ application on 9th of September, 1967 in this Court challenging the order of his removal, inter alia, on the grounds that the impugned order was passed by the disciplinary authority in clear violation of the principles of natural justice inasmuch as the petitioner was not afforded an opportunity to have an access to the documents on which reliance could be placed by him in defending himself before the disciplinary authority and that the Enquiry Officer by cross examining the prosecution witnesses acted as a prosecutor and behaved in manner as if he became a judge in his own cause and proper opportunity for defending himself was not provided to him by calling the defence witnesses who were cited by him in his defence. I The respondents were served with notice of this petition by the 20th of December, 1967. Power of attorney has been filed on behalf of the President in this Court by Mr. M. R. Bhansali and Mr. L. R. Bhansali on 21st of December, 1967. After the parties were served, the case could not be listed for hearing in the Court as it was kept in due course list. Learned counsel for the petitioner made a mention of this case before a learned Single Judge who passed an order on 26th of February, 1969 that the case be listed for hearing before the Court at an early date. While passing that order, it was, however, mentioned that Mr. L R. Bhansali, learned Counsel for the respondent desired one month's time to file a reply to the writ application and therefore the case should be listed after one month. The respondents did not file any reply to the writ application Mr. Bhansali, however, put in his appearance before the Court at the time of the arguments and he addressed the Court without filing a reply and controverting the facts mentioned by the petitioner in his writ application. Learned counsel for the petitioner has challenged the finding of the Enquiry Officer on the following grounds: (1) That the petitioner was not allowed to inspect the documents on which reliance could be placed by him and hence proper opportunity to defend himself was denied to him which vitiated the enquiry; (2) That the defence witnesses who were summoned by him were not examined on the plea that they were unwilling to appear as defence witnesses, but later on it was discovered on enquiry that six out of the list of the defence witnesses, whose names have been mentioned in para 12 of the writ petition, were never summoned by the Enquiry Officer; (3) That the Enquiry Officer was highly interested and while making the enquiry he acted as a prosecutor by indiscriminately cross-examining the prosecution witnesses after the cross-examination by the petitioner was over. This attitude of the Enquiry Officer vitiated the sanctity and the impartiality of the entire proceedings. Learned counsel appearing on behalf of the respondents, while opening his arguments, prayed for an adjournment in order to enable him to file a reply to the writ application but this prayer of the learned counsel was rejected as he had already been given sufficient opportunity to file his reply. Mr. Bhansali raised a preliminary objection that the petitioner has already filed an appeal against the order of his removal and therefore he, as of right, cannot invoke the extraordinary jurisdiction of this Court by filing this writ application. He also, during the course of arguments gave this Court to understand that the Railway Board is prepared to dispose of the appeal of the petitioner within two months from today and, therefore, the writ application should not be disposed of on merits. I may take up the preliminary objection raised by Mr. Bhansali. Their Lordships of the Supreme Court in Calcutta Dock Labour Board vs. Jaffar Imams (1) have observed that the considerations of expediency which are not permitted by law can have no relevance whatever, when dealing with the question of the liberty and livelihood of a citizen. This sentence, as used by their Lordships of the Supreme Court, has put both the matters relating to liberty as well as livelihood at par and therefore in the matters which relate to the livelihood of a person and which ultimately go to deprive him of his livelihood must be zealously guarded by the courts of law and if the Enquiry Officer is found to have violated the principles of natural justice in arriving at the conclusions which formed the basis for the removal of a citizen from service, then the Court should not on technical pleas of the availability of an alternative remedy allow the citizens to be put at the mercy of the same authorities who have not shown any keenness in the discharge of their duties entrusted to them by the statutory rules. In this connection my attention has been drawn by learned counsel for the petitioner to a circular issued by the Railway Board itself, which was issued as back as 4th December, 1958, whereby the Railway Board has prescribed a time limit for disposing of the departmental appeals before the appellate authority. I would like to put the language that has been used by the Railway Board itself while giving light to its subordinates to deal with matters of this nature, and it has mentioned in the said circular: "it has, therefore been decided that appeals preferred by the staff in respect of disciplinary action taken against them should be decided normally within a period of one month from the date of their receipt and in any case should not take more than two months for their disposal. " It is true that the statutory rules do provide an alternative remedy to the petitioner and that remedy was availed of by him but a person who has gone out of employment cannot have so much of patience as those who are getting their regular salaries and, therefore, it was quite natural for the petitioner, who was thrown out of employment, to have made request to the Railway Board to expedite the disposal of his appeal and for the that purpose the petitioner sent a request, then a reminder through his counsel and then a telegraphic request, but it so appears that all these three documents were not sufficient to bring him the desired result and, therefore, in such circumstances he was not left with any alternative remedy but to knock the doors of this Court to get speedy justice.
(3.) I have to see whether in these circumstances the alternative remedy availed of by the petitioner is a bar for filing writ application before this Court. Mr. Mridul, appearing on behalf of the petitioner, urged that statutory remedy is no bar for issuing a writ of certiorari and especially when the order of the subordinate tribunal suffers from a patent defect of violating the principles of natural justice. In support of this contention, reliance has been placed on State of U. P. v. Mohammad Noon (2 ). Learned Chief Justice, while dealing with this question whether the presence of a statutory remedy debars the petitioner from invoking the extraordinary jurisdiction of the High Court under Art. 22b of the Constitution, observed as follows: - "in the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd, Edn. , Vol 11. p. 130 and the cases cited there ). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior Court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King vs. Postmaster-General; Ex parte Carmichael, 1926-A KB 291, a certiorari was issued, although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior Court will readily issue a certiorari in a case where there has been a denial of natural justice before a Court of summary jurisdiction. The case of Rex vs. Wandsworth Justices; Ex parte Read, 1942-1 KB 281 is an authority in point. " These principles were reiterated by their Lordships in a later case decided by the Supreme Court in A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani (3) where the two exceptions, viz. (1) when there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non-est have been taken as recognised exception to the general rule that the existence of an alternative remedy was a bar to the entertainment of & petition under Art. 226 of the Constitution by their Lordships of the Supreme Court. While accepting these exceptions, their Lordships further observed as follows: - "we must, however point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law. is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. " Learned counsel for the respondents, on the other hand, urged that in this particular case the petitioner has definitely resorted to the remedy of appeal provided to him under the statute and unless that appeal was disposed of by the appellate authority, he could not invoke the jurisdiction of this Court even though his contention of the violation of the principles of natural justice is accepted by this Court. In support of this proposition of law, he placed reliance on various authorities including those of the Supreme Court in Lakshmi Devi Sugar Mills Ltd. vs. Pt. Ram Sarup and others (4 ). K. S. Rashid and Son vs. Income-tax Investigation Commission and others (5) and that of this Court in Sukhai vs. Union of India (6) and Bhag Singh vs. Transport Appellate Tribunal, Rajasthan (7 ). I have carefully gone through these authorities cited by Mr. Bhansali, but I feel that the law laid down in these decisions cannot be of any avail to the respondents because in the present case I find that the appellate authority, which normally, according to its own circular, should have decided the appeal within one month or the maximum time that it could take was two months, slept over the appeal of the petitioner for about eleven months. The anxiety of a person, who has gone out of employment, to get a proper relief from the tribunals created under the rules can very well be appreciated because he cannot indefinitely be expected to await the result of his appeal If the petitioner, in these circumstances, felt that he was not likely to get the relief from the appellate authority and he decided to come to this Court after giving three successive notices to the Rly. Board, it is difficult to say that he did not exhaust the alternative remedy available to him under the statutory rules. In such circumstances, I can safely say that the petitioner was entitled to take further steps by approaching this Court to remove the agonies of unemployment and the remedy available under the rules could not be taken as a bar to file the writ application. Mr. Bhansali, however, assured me that he will see that the petitioner's appeal is disposed of by the Railway Board within two months and therefore the matter should not be decided on merits and may be sent back to the Railway Board for the disposal of the appeal, but I feel that the matter has been hanging for a pretty long time. The enquiry had started at the end of 1961 and disciplinary authority passed the order of removal of the petitioner in the year 1966. Since then the petitioner is out of employment. Three years have already elapsed since the petitioner in these hard times is facing the ordeal of unemployment and if the petitioner fails to get the desired result from the appellate authority, then Mr. Mridul submits that he will have to play the same innings for two years before he can get a relief from this Court and thus the petitioner shall have to face a greater hardship if the matter is now remanded to the Railway Board for the disposal of the appeal. It is therefore prayed by Mr Mridul that the matter may be decided on merits. I find fo?ce in what Mr. Mridul says and therefore I proceed to decide the writ application on merits. ;