Case: M.P.State Agro Industries Dev.Corpn.&amp;Anr Vs. Jahan Khan

been highlighted in Indian Oil Corporation Ltd. & Anr. Vs. Ashok Kumar Arora and Lalit Popli Vs. Canara Bank & Ors. 6. Thus, the short question that arises for consideration is whether in the context of the Regulations governing the service conditions of the respondent, the recovery of the aforementioned amount and stoppage of three increments with cumulative effect is a major penalty and if so, the order of punishment is vitiated on any of the grounds noted above, warranting interference by the Court? 7. The Regulations relevant for the purpose of the instant case are as under: "If the Managing Director is satisfied about the charges levied, he shall grant a personal hearing to the employee concerned, and if necessary, take oral examination of the witnesses named by the employee in his reply before taking a final decision.An appeal shall:(a) Against orders of the Managing Director to the Chairman.(b) Against the order of the Chairman to the Board.(c) An aggrieved employee shall have a right to appeal provided it is preferred within 30 days of the receipt of the order against which the appeal is preferred. The appellate authority (except Board) shall decide the case within, 2 months from the date of the receipt of the appeal.The following punishments may be awarded for good and sufficient reasons, including breaches of any rules of conduct or for committing any of the offences mentioned in the Schedule according to gravity of each case:-“Class of misconductPunishmentAppealable or Non-appealableMinor Lapses(a) WarningNon-Appealableand(b) ReprimandNon-Appealabledelinquencies(c) Fine uptoNon-Appealable1/10th of payif the amount is not more than Rs. 5/-(d) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs.50/-Non-AppealableActs of misconduct(a) Recovery from pay of whole or part of pecuniary loss caused to the Corporation by negligence or breach of orders if within Rs. 50/-Appealable(b) withholding Appealable increment for specific period(c) stoppage of promotionAppealable(d) reduction to a lower post or lower level payAppealable(e) termination of serviceAppealable(f) removalAppealable(g) dischargeAppealable(h) dismissalAppealable(i) disqualifying the incumbent from any employment in the Agro Ind. CorpnAppealable” 8. A bare reading of the scheme of the afore-extracted Regulations would show that there is a clear demarcation of quantum of punishment between the minor lapses, delinquencies and acts of misconduct. It is evident that having regard to the nature of acts of omission and commission, the punishment prescribed for minor lapses, and delinquencies, ostensibly not having perpetual effect, have been made non-appealable in comparison to the punishments for acts of misconduct, which include recovery of whole or a part of pecuniary loss, exceeding Rs.50/-, caused to the Corporation, withholding of increments for a specific period, termination of services, removal etc., which can all be characterized as major punishments. Precisely for this reason, all punishments falling in the latter category have been made appealable. The perceptive distinction in two sets of penalties, in our view, makes it abundantly clear that the Corporation has treated the punishments/penalties falling in the first category as minor punishments/penalties and the acts of misconduct, falling in the second category as major penalties. We may, however, hasten to add that it cannot be laid as a hard and fast rule that stoppage of increments, with or without hedge over it, is always to be treated as a major penalty, necessitating regular enquiry. It would depend on the Rules and Regulations governing the service conditions of the employee, though ordinarily, in the absence of specific Regulations, withholding of increments with cumulative effect is treated as a major penalty because it has a perpetual effect on the entire tenure of service of the employee. 9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. Be that as it may, we are of the opinion that in the light of our interpretation of the afore noted Regulations, the imposition of penalty vide composite order dated 19th December, 1989, directing recovery of loss of Rs.16903.41 and stoppage of three increments with cumulative effect, is a major penalty, clearly envisaging a regular enquiry before punishing the respondent. Since admittedly this procedure was not followed, the High Court was justified in coming to the conclusion that imposition of the impugned penalty without holding enquiry was illegal and without jurisdiction.10. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. (See: Whirpool Corporation Vs. Registrar of Trade Marks, Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. & Ors. , State of H.P. Vs. Gujarat Ambuja Cement Ltd. and Sanjana M. Wig Vs. Hindustan Petroleum Corporation Ltd.).11. In the instant case, though it is true that the penalty order impugned in the writ petition was appealable in terms of the aforenoted Regulations but having coming to the conclusion that the order was per se illegal being violative of the principles of natural justice, it cannot be said that the High Court fell into an error in entertaining the writ petition filed by the respondent.