1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO. 1132 OF 2009 Girreddi Suryanarayana Reddy, ) Age : 47 years, Indian Inhabitant, ) Residing at C-2/57, Karmaksetra Seva ) Samiti Nagar, Sion, Koliwada, ) Mumbai – 400 037. ).. Petitioners Versus 1. The Securities and Exchange Board ) of India, through its Chairman, ) having its office at SEBI Bhavan, ) Plot No.C-4-A, ‘G’ Block, ) Bandra Kurla Complex, ) Bandra (E), Mumbai – 400 051. ) 2. Dr. K.M. Abraham, ) Whole Time Mebmer, SEBI, ) SEBI Bhavan, Bandra Kurla Complex, ) Bandra (E), Mumbai – 400 051. ) 3. Dr. K.P. Krishnan, ) Joint Secretary – CM, ) Department of Economic Affairs, ) Ministry of Finance, Government of ) India, Room No.166-D, North Block, ) New Delhi – 110 001. ) 4. Shri Anurag Goel, ) Secretary, ) Ministry of Corporate Affairs, ) “A” Wing, Shastri Bhavan, ) Room No.515, 5th Floor, ) New Delhi – 110 001. ) 2 5. Dr. G. Mohan Gopal, ) Director, ) National Judicial Academy, ) Suraj Nagar, Bhadbadha Road, ) Bhopal – 462 044. ) 6. Shri T.V. Mohandas Pai, ) Director, ) Infosys Technologies Ltd., ) Plot No.44 & 97A, Electronics City, ) Hosur Road, Bangalore – 560 100. ) 7. Smt. Usha Thorat, ) Dy. Governor, ) Reserve Bank of India, ) Mumbai. ) 8. Shri Ashok Chawla, ) Secretary (EA), ) Room No.130, North Block, ) New Delhi, ) (Copy to be served upon the Union ) of India.) ) 9. Ms Vini Mahajan, ) Joint Secretary to the Prime Minister, ) Prime Minister’s Office, ) New Delhi. ).. Respondents -- Petitioner-in-person. Shri J.J. Bhatt along with Shri Daya Gupta i/by Earnest Legal Associates for the SEBI. Shri G. Hariharan i/by Dr. T.C. Kaushik for Respondent Nos.3, 4, 8 and 9. -- 3 CORAM : SWATANTER KUMAR , C.J. & S.C. DHARMADHIKARI, J JUDGMENT RESERVED ON : 7TH JULY, 2009 JUDGMENT PRONOUNCED ON : 23RD JULY, 2009 JUDGMENT : (Per SWATANTER KUMAR, C. J.) Heard. Rule. Respondents waive service. By consent, Rule is made returnable forthwith. 2. The Petitioner was appointed as Division Chief (General Stream) by the Securities and Exchange Board of India ( hereinafter referred to as the “Board” ) on 5th April, 2004. Respondent No.2 Member of the Board, vide his order dated 6th May, 2004 placed the Petitioner under suspension with immediate effect as departmental inquiry was contemplated against him. This order of suspension was challenged by the Petitioner in Writ Petition No. 464 of 2005 on various grounds, inter alia, that the same was without jurisdiction and punitive in its contents. Writ Petition No.464 of 2005 was dismissed by the order of a Division Bench of this Court dated 14th 4 December, 2005. The Petitioner was granted liberty to raise all contentions in his reply to the Show Cause Notice dated 25th April, 2004 before the Competent Authority at an appropriate stage. In the meanwhile, on 6th May, 2004, the Petitioner was served with the Memorandum of Article of Charges and Shri S.M. Jhunjhunuwala, retired Judge of Bombay High Court, was appointed to conduct inquiry against the Articles of Charges against the Petitioner. The inquiry proceedings were completed and the Investigating Officer had submitted report to the Competent Authority on 11th March, 2005. On the basis of the Inquiry Report, the Petitioner was found guilty of Articles of Charges, based upon which, the Competent Authority issued notice to show cause proposing to impose major punishment of dismissal from the service. The Petitioner filed reply to this Show Cause Notice. The hearing was fixed before the concerned Authority wherein the Petitioner sought some time and appeared before the Authority on 12th January, 2009. The Executive Director of Respondent No.1 vide order dated 16th January, 2009 imposed penalty of dismissal of the Petitioner from the service of the Board in terms of Regulation 79(2)(e) of SEBI (Employees Service) Regulations, 2001 (hereinafter referred to as the “Regulations”). 5 The remedy against order of dismissal being available under the Regulations, the Petitioner, on 27th February, 2009, filed an Appeal under the Regulation 88. The Petitioner also filed an application before the Appellate Authority for seeking permission to engage a lawyer and that the Appeal be heard by an Independent Members of the Board and not by the whole time member. On 25th March, 2009, the Petitioner was informed by Respondent No.1 of the rate of license fee for retaining official quarters and was also asked him to vacate and hand over vacant and peaceful possession of the service quarters latest by 30th April, 2009. 3. Aggrieved by this attitude of the Respondents, the Petitioner filed Writ Petition (Lodging ) No.784 of 2009 ( registered as Writ Petition No.909 of 2009) before this Court praying that his Appeal should be heard expeditiously as possible by Independent Members, as well as he should not be asked to vacate his official accommodation. This Writ Petition came to be disposed of by an order dated 24th April, 2009 passed by the Division Bench of this Court. The Court declined to consider other pleas raised in that Writ Petition, however, it directed the Respondents to allow the Petitioner 6 to occupy the quarter till the disposal of his appeal on condition that in the event of dismissal of the Appeal, he should vacate the official premises within two weeks from the date of the order of the Authority. The Petitioner was also directed to fully co-operate with the authority concerned. 4. The appeal has not been heard, as the Petitioner moved the Authority from time to time seeking adjournment on one pretext or the other. The Petitioner has filed an undertaking on 29th April, 2009 as required by the order of the Court dated 24th April, 2009 . The Petitioner without arguing his case before the Appellate Authority filed the present Writ Petition praying for quashing of the Communication dated 18th May, 2009 of Respondent No.1 requiring the Petitioner to be present for hearing of his Appeal and in the event he failed to appear before the said Authority, the Authority would pass final orders in the said matter after considering his representation. He has also prayed in the present Writ Petition that his unconditional letter of resignation dated 18th November, 2008 be placed before the Independent members for decision to be taken, that he should not be asked to vacate the official accommodation and 7 and the Respondents be directed to disclose the entire amount due and payable to the Petitioner as on 16th January, 2009 and disburse the same immediately in the event of any advese orders being passed against him. 5. As we have already noticed, this Petition was contested by the Respondents. The Respondents had also stated that they were not willing to consider the resignation of the Petitioner and would deal with it in accordance with law. 6. We have already noticed that between the order of his suspension and passing of the order of dismissal and subsequently till filing of this Writ Petition, this is the third Writ Petition filed by the Petitioner before this Court. In fact, grounds and averments made in the present Writ Petition and the grounds taken up earlier relate to the Petitioner’s basic relief which is on the Regulation and which questions the jurisdiction of the Full Time Member or Executive Director to impose order of punishment and/or to hear the Appeal of the Petitioner. The present Writ Petition lacks bona fide. Again the Division Bench of this Court had dealt with it in its order dated 24th 8 April, 2009 passed in Writ Petition No. (Lodging ) No.784 of 2009 and clearly declined to entertain other reliefs prayed by the Petitioner and directed the Authorities to dispose of the appeal expeditiously. The Petitioner did not cooperate before the Appellate Authority and files the present Writ Petition. 7. Now the contention raised before us is that the Independent member should hear the Appeal and hearing sought to be given by the whole-time members is not contemplated in the Regulation and whole-time member of the Board does not have any jurisdiction to hear the Appeal and if the Appeal is heard by the said Authority, it will cause serious prejudice to the interest of the Petitioner. The Executive Director of Respondent No.1 had passed an order imposing major penalty of dismissal from the service on 16th January, 2009. This order was passed in exercise of power vested in him under the Regulations 79(2)(e). An appeal has been preferred under Regulation 88 of the said Regulations. Regulation 88 provides that an employee may appeal against an order imposing upon him any of the penalties specified in Regulation 79 or order of suspension under Regulation 86 and the appeal would lie to the appellate 9 Authority. Note to Regulation 88(1) clarifies the word “Appellate Authority” and reads as under: - “Note: For the purpose of this regulation “Appellate Authority” means the Board, in case the Chairman is the competent authority; Chairman or whole-time member of the Board, in case the Executive Director is the competent authority and Executive Director concerned in all other cases.” A bare reading of the above note to Regulation 88 clearly shows that the order passed by the Executive Director imposing penalty upon the Petitioner, remedy of appeal is available under Regulation 88(1). The Appellate Authority would mean the Board in case the Chairman is competent authority, while the Chairman or whole-time member of the Board in case the Executive Director is the Competent Authority and Executive Director concerned in all other cases. The Petitioner was appointed to the post and his order of punishment has been passed by the Executive Director of Respondent No.1. Thus, the Competent Authority to hear the said Appeal should be the Chairman or whole-time member of the Board, as the case may be. The Competent Authority has been defined under 10 Regulation 3(1)(e) and means the Chairman in the case of officers, which expression shall also include whole-time member of the Board or Executive Director, in regard to any matter or power to be dealt with or exercisable by the Chairman under these Regulations, which are delegated to him. In light of these Regulations, which are not only made and are clear, the contention of the Petitioner that the whole-time member of the Board is not Competent Authority to hear his appeal cannot be accepted in law. Furthermore, we are also unable to appreciate the attitude adopted by the Petitioner in the proceedings before the Appellate Authority. The Appellate Authority is bound by the order of the High Court to dispose of the appeal expeditiously but it is unable to do so because of non-cooperative attitude adopted by the Petitioner. We expect that the Petitioner now shall fully cooperate before the Appellate Authority and have the said appeal disposed of in accordance with law. 8. As far as other prayer with regard to the retaining of official quarters is concerned, it would clearly be barred by principle of res judicata as the order passed by a Division Bench of this Court dated24th April, 2009 has attained finality and is binding on the 11 parties to the Petition. 9. Another contention which was raised before us is that the present Writ Petition is not maintainable because the Petitioner should be directed to pursue his statutory remedy before the Appellate Authority and not before this Court by way of filing Writ Petitions repeatedly. 10. It is a settled principle of law that the availability of statutory alternate remedy normally would be an impediment to exercise the powers under Article 226 of the Constitution of India unless it satisfies the ingredients stated in the various judgments of the Supreme Court as well as this Court. No fundamental right of the Petitioner has been violated. The Petitioner is being granted hearing in accordance with the Regulations and no gross injustice has been done to the Petitioner, still the Petitioner is filing Petition after Petition in this Court. The Petitioner should exhaust his alternative remedy. When an alternative remedy is available and has been invoked by the party, the Court would be reluctant in deciding such proceedings. Furthermore, it has to be a very very exceptional case. 12 The case of the Petitioner does not satisfy any of these requirements. A reference in this regard can be made to decisions of the Supreme Court in the case of (i) S.K. Bhatia v State of U.P, (1983) 4 SCC 194 (ii) K.S. Rashid & Sons v. Income Tax Investigation Commission, AIR 1954 SC 207 and (iii) T.K. Rangrajan v. Government of Tamil Nadu, (2003) 6 SCC 581. 11. Despite the above fact, we have discussed the merit of the contentions raised before us and are of the considered view that the present Writ Petition would hardly lie before this Court and the Petitioner should be directed to pursue the remedy, before the Authority, which he has already availed of. We would further direct the Petitioner to cooperate with the Appellate Authority and the Appellate Authority, in terms of the earlier order of this Court, should dispose of the Appeal filed by the Petitioner under Regulation 88(1) expeditiously. We keep all the contentions raised by the Petitioner in the Writ Petition open and nothing that has been observed in this order would be taken by the Appellate Authority to the prejudice of the Petitioner. 13 12. The Rule is discharged. The Petition is disposed of with the above directions. No order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J