1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.12.2011 CORAM: THE HONOURABLE MR.JUSTICE K.N.BASHA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Appeal(MD)No.1495 of 2011 and M.P.(MD).No.1 of 2011 R.Pitchai ... Appellant/Petitioner Vs. 1.The Principal Chief Conservator of Forests, [Head of Forest Force], Panagal Buildings, Chennai-600 015. 2.The Conservator of Forests, Madurai Circle, Madurai. 3.The District Forest Officer, Madurai Division, Madurai. ... Respondents/Respondents Writ Appeal is filed under Clause 15 of Letters Patent against the order of the learned Single Judge, dated 09.11.2011, made in W.P.(MD) No.12675 of 2011. PRAYER IN WP(MD)No.12675 of 2011 : Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus calling for the records relating to the proceedings (1) Proc.No.AB1/46341/2009 dated 04.08.2010 of the first respondent and (2) Se.Mu.Order NO.962/10 Pa.2 dated 28.09.2011 of the third respondent and quash the first proceeding insofar as the petitioner's son selection is concerned and second proceeding in its entirety and issue consequential direction to the first respondent to declare the name of the petitioner as selected in the panel in Proc.No.AB1/46341/2009 dated 4.08.2010 fit for promotion as forester for the year 2009-2010 and promote him as such with retrospective effect from the date of promotion of his junior with all consequential benefits. For Appellant : Mr.M.Ravi For Respondents : Mr.K.Mahendran, Special Government Pleader JUDGMENT (Judgment of the Court was made by M.VENUGOPAL, J) The Appellant/Petitioner has projected this Writ Appeal as against the order, dated 09.11.2011, made in W.P.(MD).No.12675 of 2011 by the Learned Single Judge. 2.The Appellant/Petitioner, while serving as Forest Guard at Vikkiramangalam Beat, Sholavandhan Range, was placed under suspension, as per proceedings of the Third Respondent in Proc.No.3743/2009/E2, dated 25.04.2009, alleging that an enquiry into grave charges of allowing https://hcservices.ecourts.gov.in/hcservices/ 2 encroachment in Reserved Forest areas under his jurisdiction is contemplated. Further he has been issued with charge memo in proceeding No.3743/2009/Pa2, dated 25.05.2009, containing two charges, by the Third Respondent. 3.It is the case of the Appellant/Petitioner that an Enquiry Officer, who conducted the enquiry, has submitted his report on 08.07.2009, holding that the charges framed against him have been proved. As per the proceedings in Na.Ka.No.3743/2009/Pa2, dated 13.07.2009, the Third Respondent has issued a second show cause notice to the Appellant/Petitioner, requiring him to furnish reply for the Enquiry Officer's Report. He submitted his explanation, dated 17.07.2009, to the Third Respondent, mentioning that he has communicated the construction of steps by the Village people to the Forester and has taken action by registering the case against the offenders and that he might be relieved of the charges. The Third Respondent issued an order of punishment by postponement of increment for three years with cumulative effect, as per proceeding in Na.Ka.No.3743/2009 Va2 dated 21.07.2009. 4.The Appellant/Petitioner admittedly filed an Appeal, on 18.09.2009, before the Second Respondent/Conservator of Forest, Madurai Circle, Madurai and the Second Respondent, according to the Appellant/Petitioner, without considering the Appeal grounds and other documents has rejected his Appeal by means of an order in Se.Mu.Aa.No.Aa2/1261/09, dated 04.11.2009. Aggrieved against the orders passed by the Third Respondent and the Second Respondent, the Appellant/Petitioner preferred a Revision Petition on 21.08.2010 before the First Respondent. The First Respondent, as per proceedings in Se.Mu.Order No.BB1/6179/10, dated 02.08.2010, has set aside the order of punishment imposed by the Third Respondent and has also issued a direction to conduct afresh an enquiry, since there has been a procedural lapse in conducting enquiry. 5.As per the order of the First Respondent, the Third respondent by means of the proceedings in Na.Ka.No.962/2010/Pa2, dated 07.01.2011, directed the same Enquiry Officer to conduct afresh an enquiry and submit his report expeditiously. The Enquiry Officer, after conducting enquiry, furnished his report holding that the charges have been proved against the Appellant/Petitioner. The Third Respondent has issued show cause notice and sought his explanation for the Enquiry Report. He submitted his explanation on 05.09.2011, inter alia stating that he has communicated the encroachment and construction made by the Village people through Cell Phone to the Forester on 15.03.2009, etc. The Third Respondent, after receipt of explanation from the Appellant/Petitioner has passed orders, according to the Appellant/Petitioner, without applying his mind properly and imposed major punishment of rejection of pay to the lowest stage in his present scale for three years with cumulative effect, as per the proceedings in Se.Mu.Order No.962/10 Pa2, dated 28.09.2011. 6.The stand of the Appellant/Petitioner is that the action of the Third Respondent in imposing major punishment, as referred to supra, is an arbitrary exercise of unfettered power and the same is ultra vires. Because of the pending disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, against the Appellant/Petitioner, which resulted in punishment being imposed on him, https://hcservices.ecourts.gov.in/hcservices/ 3 his name has been declared as not selected in Serial No.186, as per the proceedings of the First Respondent in Proc.No.AB1/46341/2009, dated 04.08.2010. The Appellant/Petitioner admitted that he has preferred an Appeal earlier and has gone upto Revision and this is the second round and further his promotion is being deferred by virtue of the punishment. Therefore, he has filed the present Writ Petition. 7.The above undisputed facts clearly point out that the Appellant/Petitioner has an effective, viable and efficacious alternative remedy to approach the Authorities concerned. Without approaching the Authorities concerned and also without exhausting the viable alternative remedy, the Appellant/ Petitioner has approached the Writ Court and has sought for the relief of quashing the proceedings in Proc.No.AB1/46341/2009, dated 04.08.2010, of the first respondent, insofar as the Petitioner's non selection is concerned and Se.Mu.Order No.962/10 Pa2, dated 28.09.2011, of the third respondent in its entirety. Further the Appellant/Petitioner in the Writ Petition has sought for issuance of a direction to the First Respondent to declare the name of the Petitioner, as selected in the panel in Proc.No.AB1/46341/2009, dated 04.08.2010, fit for promotion as Forester for the year 2009-2010 and promote him with retrospective effect from the date of promotion of his junior with all consequential benefits. 8.It is true that under Article 226 of the Constitution of India being in general is discretionary, as per the decision of the Hon'ble Supreme Court in Veluswami Vs. Raja reported in AIR 1959 SC 422 and Than Singh Vs. Superintendent reported in AIR 1964 SC 1419 (1423). As a matter of fact, the High Court may refuse to grant remedy where there exists an alternative remedy, as per decision of the Hon'ble Supreme Court in Abraham Vs. ITO reported in AIR 1961 SC 609. 9.As far as the present case is concerned, the Appellant/Petitioner, as pointed out earlier, has not approached the appropriate Appellate/Revisional Authority. In the earlier round of litigation, the Appellant/Petitioner has exhausted his remedy of approaching the hierarchy of Authorities concerned in the departmental proceedings. But, in the case on hand, the Appellant/Petitioner by by- passing the available alternative efficacious remedy has approached the Writ Court. Further, it is not the case of the Appellant/Petitioner that an alternative remedy of filing Appeal/Revision before the Authorities concerned is not an efficacious one or ineffective or inadequate one. Ordinarily, the remedy under the statute or departmental rules/regulations will have to be pursued by the Appellant/Petitioner to its logical end. In the instant case, the Appellant/Petitioner has not made out any exceptional case before this Court to entertain the Writ Petition filed by him. Viewed in that perspective, when the Appellant/Petitioner has a viable, effective, adequate and efficacious alternative remedy, without exhausting the same, filing of the Writ Petition, is not maintainable in the considered opinion of this Court. 10.On going through the order passed by the Writ Court, we are of the considered view that the Writ Court, after relying upon various decisions of the Hon'ble Supreme Court, has clearly held that the exclusion of Writ jurisdiction due to availability of an alternative remedy is purely a rule of discretion and not one of compulsion. Indeed, the principle of https://hcservices.ecourts.gov.in/hcservices/ 4 exhaustion of statutory remedies, before a writ will be granted, is a rule of policy, convenience and discretion rather than a Rule of Law. We are in complete agreement with the view taken by the learned Single Judge. As such, we are not inclined to allow the Writ Appeal and accordingly, the writ appeal is dismissed without costs. Consequently, connected miscellaneous petition is also dismissed. 11.However, it is made clear that the dismissal of the Writ Appeal will not preclude the Appellant/Petitioner to prefer an Appeal by taking other pleas/grounds raised in the Writ Petition before the Second Respondent within a period of two weeks from the date of receipt of copy of the judgment. As and when the Appeal is filed within two weeks from the date of receipt of the judgment, the Second Respondent is directed to pass appropriate orders on merits, in any event, within a period of three months, in accordance with law, by adhering to the principles of natural justice, that too in letter and spirit. Sd/- Assistant Registrar (RTI) /True copy/ Sub Assistant Registrar(C.S) To: 1.The Principal Chief Conservator of Forests, [Head of Forest Force], Panagal Buildings, Chennai-600 015. 2.The Conservator of Forests, Madurai Circle, Madurai. 3.The District Forest Officer, Madurai Division, Madurai. gcg Judgment in W.A.(MD)No.1495 of 2011 Dated:09.12.2011 TR : 19.12.2011: 4p/4c https://hcservices.ecourts.gov.in/hcservices/