IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No.13087 of 1989 Date of Decision: 21.7.2010 Mohinder Singh. ....... Petitioner through Shri H.S.Dhindsa, Advocate. Versus Punjab State Warehousing Corporation. ....... Respondent through Shri Sukhbir Singh Mattewal, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The petitioner was an employee of the Punjab State Warehousing Corporation (hereinafter described as `the Corporation') and was working as Ware House Manager. He has assailed order dated 25.9.1989 (Annexure P10) by which a penalty of removal from service was imposed upon him. The grievance of the petitioner stems from the fact that in April, 1984, he was posted in the State Ware House, Rajpura from where he was transferred to Ludhiana vide an order dated 29.6.1987 at which place he joined on 8.7.1987 after handing over the charge to his successor,namely, C.W.P.No.13087 of 1989 -2- .... Shri Shri Ram Sharma. Just before relinquishment of charge by the petitioner at Rajpura, a discrepancy memo (Annexure P1) was served upon him on 6.7.1987 which was stated to have been issued on the basis of the inspection conducted by one Shri Prem Singh, District Manager,Flying Squad of the Corporation. One of the discrepancies pointed out in the said memo related to the condition of rice stock in various godowns in the administrative control of the petitioner. He then submitted his reply, Annexure P2, stating his innocence in respect of the allegations mentioned in the memo. Thereafter, a show cause notice dated 31.7.1987 (Annexure P3) was served upon the petitioner seeking to inflict a minor penalty upon him. The reply submitted by the petitioner in response to the show cause notice was found unsatisfactory and consequently, the competent authority of the Corporation imposed punishment of warning upon him vide order dated 9.11.1987 (Annexure P4) as it was found that the stocks had not been stocked appropriately. Thereafter, on the basis of the same inspection conducted by Prem Singh, a regular enquiry was initiated against the petitioner was initiated against the petitioner with the allegation that the stocks which were stored in the Ware House at Rajpura contained inferior quality of rice and that the same had been replaced by syphoning of better quality of food grains. The petitioner, as also several other employees were made to face this enquiry in which all of them were indicted and removed from service. The impugned order was passed in the case of the petitioner. The other employees resorted to filing of statutory appeals, while the petitioner resorted to the filing of the instant writ petition and evaded the C.W.P.No.13087 of 1989 -3- .... process of appeal on the ground that the order of removal was passed by the Managing Director of the Corporation and the Appellate Authority under the Punjab State Warehousing Corporation Staff Regulations, 1960 (hereinafter described as `the Regulations') was the Chairman, but at that point of time, the Managing Director was holding the post of chairman. In such an eventuality, the apprehension of the petitioner was that he would not get any justice. On 17.10.1989 when the petition came up for hearing before this Court, operation of the impugned order was stayed. Despite this restraint order, the petitioner was not reinstated, as a result of which he was constrained to file C.O.C.P.No.213 of 1990 which was disposed of by an order dated 15.12.2006. The relevant portion of that order is extracted below:- “As no final opinion has yet been expressed by this Court in relation to the order of removal, in my view, this petition can be disposed of by fully protecting the interest of the petitioner with an observation that if the order of removal is finally set aside by this Court, the petitioner will be entitled to all those consequential benefits which he would have earned upon his reinstatement in service in terms of the interim order passed by this Court.” In the meanwhile, the statutory appeals preferred by the similarly situated employees as the petitioner who were removed from service like him, were disposed of by the Appellate Authority of the C.W.P.No.13087 of 1989 -4- .... Corporation and the punishment of removal from service was reduced to stoppage of two increments with cumulative effect in case of one Shri Trehan and to that of penalty of `Censure' in the cases of others. It has, thus, been contended by the learned counsel for the petitioner that the order of removal in the case of the petitioner is completely arbitrary and discriminatory. His contention is that he had relinquished the charge at Rajpura in favour of the successor employee and that the inspection was done by Shri Prem Singh behind the back of the petitioner. It was submitted that the charge having been handed over to the successor employee and the petitioner having not been associated with the inspection, the allegation that he was responsible for the inferior quality of food grains stored in the Ware House instead of superior one, is without any substance and hence, unsustainable. Learned counsel for the petitioner further submitted that the employees, who were similarly situated as the petitioner, have been treated differently as their appeals were partly accepted and even though they were held guilty, yet, the punishment was reduced, whereas he has continued to suffer ever since the impugned order was passed in the year 1989 and also despite the restraint order passed by this Court. He contended that the petitioner was ultimately reinstated in the year 2003, but for more than a decade, he suffered at the hands of the functionaries of the corporation while similarly situated employees have continued to enjoy the tenure ever since they were reinstated. It was pointed out that Shri Trehan was reinstated in the year 1990, whereas the other employees were reinstated in the year 1992. C.W.P.No.13087 of 1989 -5- .... Learned counsel for the Corporation could not justify the action of the authorities of the Corporation except to say that other employees whose instances have been cited by the petitioner had preferred statutory appeals which were decided by the Chairman and in his case, since he had filed a writ petition, a similar order could not be passed. At the time of hearing, the learned counsel for the Corporation was given opportunity to seek instructions as to whether the petitioner could be treated at par with other similarly situated employees and given a similar treatment and similar benefits. He, after availing of the instructions from the Managing Director of the Corporation, has expressed his inability to do so. The communication which he has received from the Managing Director of the Corporation has been produced before the Court which is taken on record as Mark `A'. He, however, contended that since the petitioner did not avail the alternative remedy of statutory appeal, no relief can be granted in the instant petition. After hearing the learned counsel for the parties and perusing the material on record, I proceed to determine the controversy. The plea that the petitioner had an alternative remedy of filing a statutory appeal cannot be sustained as it was considered even at the time of admission of the petition and the fact that this Court chose to admit the petition for final disposal is indicative of the fact that the same stood negatived. In Dr.L.L.Dhawan, Lecturer Versus D.A.V.College, Chandigarh, 1995(3) P.L.R. 267 (P&H), a learned Single Judge, while C.W.P.No.13087 of 1989 -6- .... dealing with a similar plea, observed in paragraph 7 of the judgment as under:- “7. The second preliminary objection of Shri Jain relates to the availability of the alternative remedy. Shri Jain argued that the remedy of representation available to the petitioner is an effective alternative remedy and, therefore, this Court must not exercise its extraordinary jurisdiction in his favour particularly when disputed questions of fact are required to be determined. Here it is necessary to mention that before admitting the writ petition a show-cause notice was issued by the Court. Respondent No.1 filed its reply on 11.1.1994 to which the petitioner filed a replication on 8.4.1994. Therefore, the Court heard the arguments and ordered the admission of the writ petition on 25.4.1994. It is, therefore, reasonable to presume that the Division Bench which hard the case on 25.4.1994 did not feel persuaded to non-suit the petitioner on the ground of availability of alternative remedy. In addition to this, I find that the case was heard on merits as early as on 25.4.1994 and thereafter it remained pending for the last about six months. The admission of the writ petition after consideration of the objections regarding the availability of alternative remedy and its hearing on merits are important factors, which, in my opinion, are sufficient to negative the plea of Shri Jain that the petitioner should be non-suited on the question of availabiality C.W.P.No.13087 of 1989 -7- .... of alternative remedy. Moreover, the relief sought by the petitioner is in the form of a mandamus and after the petitioner has remained pending for a period of almost two years there is no justification to direct the petitioner to make a representation to the D.P.I. (Colleges), Chandigarh. The rule that the Court will not exercise its extraordinary jurisdiction under Article 226 in cases where an alternative remedy is available to the aggrieved party is not a rule of law but a rule of self-imposed restraint and in a case like the present one wherein the question of livelihood of the petitioner is involved, I do not consider it just and proper to dismiss the petition on the ground of the failure of the petitioner to avail the remedy of representation.” The next and only question that requires determination is as to whether two sets of employees, i.e., the petitioner and similarly situated persons, can be treated differently when all of them faced a common enquiry with identical allegations and were proceeded against in the same manner. In my opinion, this commonality of facts inter se between the petitioner and similarly situated persons ought to have compelled the authorities of the Corporation to consider the case of the former in the same manner as they had done in the cases of others. But, they chose a path of inaction to perpetuate the sufferings of the petitioner which conduct can, at best, be termed to be abhorrent. The situation has been further compounded by the fact that despite restraint order passed by this Court on 17.10.1989, the petitioner was not reinstated in service till as late as the year 2003 even C.W.P.No.13087 of 1989 -8- .... though the employees, who were removed from service on the similar charge, were reinstated in the years 1990 and 1992. The authorities of the Corporation can not take umbrage in the fact that the petitioner did not file a statutory appeal because he in the very first instance came to this Court and they were very well aware and conscious of the process resorted to by him. It was their duty to have acted consciously and as a model employer were obliged to evaluate the case of the petitioner as was done in the cases of other employees. It was not necessary for them to wait for the pronouncement of this Court as the pendency of the writ petition and the agitation of the petitioner could very well have been taken care of by themselves. I am, therefore, constrained to observe that it is a stubborn attitude of the authorities of the State and its functionaries that more or less becomes an obstructive tool in the proceedings before the Courts compelling them to spend innumerable moments to ponder and decide the matters which lie in their decision taking process. In the instant case, I do not find any justification on the basis of which the impugned order can be sustained, more-so when dismissal of the similarly situated employees has already been set aside by the authorities of the Corporation. The petitioner has also been able to demonstrate that he was not associated with the inspection carried out by Shri Prem Singh on the basis of whose report he was charge sheeted. In any eventuality, as observed earlier, in view of the fact that dismissal order has already been set aside in the cases of other similarly situated employees in whose cases the authorities of the C.W.P.No.13087 of 1989 -9- .... Corporation have not shown any mitigating circumstance and have not been able to establish any dis-similarity between their case and the case of the petitioner and also the fact that there is no aggravating circumstance against him, I am of the opinion that the instant petition deserves to be accepted. Consequently, the writ petition is allowed and the impugned order is set aside. As a result thereof, the petitioner is held entitled to all the benefits that could have accrued to him had he been in service. Whatever benefits admissible to the petitioner shall be released to him within a period of two months from today. The petitioner shall also be entitled to costs of Rs.25000/- which shall be recovered from the salary of the Managing Director of the Corporation and paid to him within the aforesaid period of two months. July 21,2010 ( Mahesh Grover ) “SCM” Judge