1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO. 4129/2006 (Badri Prasad Gurjar Vs. State of Rajasthan & Ors.) Date of Order : 19/03/2007 PRESENT HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sunil Joshi for the petitioner. Mr. Rameshwar Dave, Deputy Govt. Advocate for respondents. BY THE COURT:- By the instant writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order Annex.5 dated 23.5.2006 placing him under suspension. I have heard learned counsel for the parties. A first information report being FIR No.288/05 dated 31.12.2005 came to be lodged against the petitioner and certain other persons for the offences under Section 13 (1)(c)(d)(2) of the Prevention of Corruption Act, 1988 and Sections 120-B and 409 IPC by the Anti Corruption Bureau. The matter was investigated and according to learned counsel for the petitioner, a charge sheet has already been filed before the Special Court dealing with the matter. During pendency of the criminal case 2 and contemplating the enquiry, the petitioner has been placed under suspension. Learned counsel submits that for placing a person under suspension, department has issued certain circulars. Vide Circular No. F.2 (9) Apptts. (A-III) 64, dated 26.3.1966 certain directions have been issued by the Govt. for expeditious disposal of the disciplinary proceedings and vide Order No.2900/F.23 (18) Apptts. (A)/58 dated 25.3.1958 broad guidelines have been issued which provides that a Govt. servant should be suspended when there is strong prima-facie case against him and the allegations involve moral turpitude, grave misconduct or indiscipline and willful refusal to carry out the orders of superior authority or where there is a strong prima- facie case against him which, if proved, would ordinarily result in his dismissal or removal from service and either (a) it is inadvisable that he should continue to perform the duties of his office (b) his retention in office is likely to hamper or frustrate the enquiry. Learned counsel for the petitioner has relied on a division Bench decision of this Court in Rajasthan Shikshak Sangh Vs. State of Rajasthan and Ors. D.B.C.W. Petition No.2779/01 decided on 13.2.2003. Learned Deputy Government Advocate submits that very serious allegations against the petitioner have been prima- facie investigated by the Anti Corruption Bureau and a charge 3 sheet has been filed and the case is pending in the Court for trial for the offences noticed above. Learned Deputy Government Advocate further submits that the order placing the petitioner under suspension is appealable under Rule 22 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the CCA Rules' hereinafter). I have given my thoughtful consideration to the rival submissions made by counsel for the parties. There are serious allegation levelled in the criminal case instituted against the petitioner and co-accused and it cannot be said that it would not involve moral turpitude. Where a public servant is indulged in corruption activities and case has been instituted under the provisions of Prevention of Corruption Act, in my view, there is strong prima-facie case against the petitioner and if proved it may result in dismissal or removal from services and therefore, the guidelines provided under Rule 13 vide Notification and the order herein above of the CCA Rules, prima-facie fulfill the requirement. More so, a statutory remedy of appeal is provided under Rule 22 of the CCA Rules against the order of suspension which is efficacious in nature and therefore, by passing of the statutory remedy of appeal cannot be permitted. The Division Bench decision referred supra relied on by learned counsel has absolutely no application in view of catena of decisions of Hon'ble Supreme Court referred herein 4 below. A Constitution Bench of the Hon'ble Supreme Court, in G. Veerappa Pillai Vs. Raman & Raman Ltd., AIR 1952 SC 192, held that if there is statutory remedy of appeal/revision available to a person, the writ jurisdiction should not be invoked in such matters. In C.A. Ibraham Vs. I.T.O., AIR 1961 SC 609 and H.B. Gandhi Vs. M/s. Gopinath & Sons, 1992 (Suppl.) 2 SCC 312, the Hon'ble Apex Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction. A Division Bench of this Court, in Laxman Singh Verma Vs. State of Rajasthan & ors., 2000 (1) RLR 137, has considered this issue elaborately and after discussing large number of decisions of this Court and the Hon'ble Supreme Court in Gopilal Teli Vs. State, 1995 (1) RLR 1; Whirlphool Corporation Vs. Registrar of Trade Marks, AIR 1999 SC 22; Tin Plate Co. of India Ltd. Vs. State of Bihar, AIR 1999 SC 74; and Deepak Kumar Khinvsara Vs. Oil India Ltd., 1996 (1) RLR 95, came to the conclusion that writ should not generally be entertained if statute provides for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum. In Sheela Devi Vs. Jaspal Singh, (1999) 1 SCC 209, the Hon'ble Supreme Court held that if the statute itself provides 5 for a remedy of revision, writ jurisdiction cannot be invoked. A Constitution Bench of the Hon'ble Supreme Court, in K.S. Rashid & Sons Vs. Income Tax Investigation Commission & ors., AIR 1954 SC 207, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Again, a Constitution Bench of the Hon'ble Supreme Court, in Union of India & ors. Vs. T.R. Verma, AIR 1957 SC 882, held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. The Apex Court held that existence of an another remedy does not affect the jurisdiction of the Court to issue a writ, but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy is exhausted, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds therefor. 6 Yet another Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & ors. Vs. Mohammed Nooh, AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would lie provided there is no other equally effective remedy. Another Constitution Bench of the Hon'ble Supreme Court, in State of Madhya Pradesh & Anr. Vs. Bhailal Bhai etc. etc., AIR 1964 SC 1006, held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. In S.T. Mathuswami Vs. K. Natrajan & ors., AIR 1988 SC 616, the Hon'ble Supreme Court held that the High Court cannot be justified to exercise the power in writ jurisdiction if an effective alternative remedy is available to the party. In Secretary, Minor Irrigation and Rural Engineering Service, U.P. & ors. Vs. Sangoo Ram Arya & Anr., AIR 2002 SC 2225, the Apex Court held that where the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a Government servant, the fact that the Tribunal had no 7 authority to grant an interim order, would be no ground to by- pass the said Tribunal. In the circumstances, therefore, the writ petition stands dismissed. However, it is open for the petitioner to challenge the order placing him under suspension by way of an appeal. No order as to costs. (H.R.PANWAR),J. rp