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Jai Chand Vs. Collector and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 1 of 1956
Judge
Reported inAIR1956HP71
ActsConstitution of India - Articles 226 and 311
AppellantJai Chand
RespondentCollector and anr.
Advocates: M.L. Aukta, Adv.
DispositionPetition rejected
Cases Referred(b) Municipal Corporation of Greater Bombay v. K.C. Sen
Excerpt:
- .....the present petition under article 226 of the constitution, wherein i am requested to issue a writ to the collector of mahasu and the state of himachal pradesh, quashing the charge-sheet dated 14-7-1955 and the subsequent dismissal order of 8-12-1955 and directing the reinstatement of the petitioner from the date of his suspension.2. when this petition came up for hearing to-day, i called upon learned counsel for the petitioner to state whether his client preferred an appeal against the order of dismissal and if so, with what result? mr. aukta replied that no appeal had been, filed. it is not disputed that an appeal lay to the financial commissioner against the order of the collector dismissing the petitioner. the question is whether, under those circumstances, this court should.....
Judgment:

Ramabhadran, J.C.

1. The petitioner was formerly a Patwari in Teiisil Rohru, district Mahasu. He was tried, along with others, of offences under Sections 363 and 368, I. P. C., & convicted thereof by the Magistrate first class, Rohru. On appeal, however, the petitioner was acquitted by the learned Sessions Judge of Mahasu. The petitioner had been suspended by the Collector, Mahasu, during the pendency of the criminal case.

After his acquittal by the Sessions Court, the petitioner was served with a charge-sheet dated 14-7-1955 by the Collector, calling upon him to show cause why he should not be dismissed from Government service on account of his misconduct as a public servant. A reply was submitted by the petitioner on 25-7-1955. On 8-12-1955, the Collector passed an order, dismissing the petitioner from Government service. He has now filed the present petition under Article 226 of the Constitution, wherein I am requested to issue a writ to the Collector of Mahasu and the State of Himachal Pradesh, quashing the charge-sheet dated 14-7-1955 and the subsequent dismissal order of 8-12-1955 and directing the reinstatement of the petitioner from the date of his suspension.

2. When this petition came up for hearing to-day, I called upon learned counsel for the petitioner to state whether his client preferred an appeal against the order of dismissal and if so, with what result? Mr. Aukta replied that no appeal had been, filed. It is not disputed that an appeal lay to the Financial Commissioner against the order of the Collector dismissing the petitioner. The question is whether, under those circumstances, this Court should entertain a petition of this kind. I may refer to the following rulings :

(a) 'Khurshed Mody V. Rent Controller, Bombay', AIR 1947 Bom 46 (A). There, a Division Bench of the Bombay High Court observed that:

'We agree that, ordinarily, the Court will require the petitioner to have recourse to his ordinary remedies; but if the Court finds that there is a breach of a fundamental principle of justice, it would certainly not hesitate to issue this high prerogative writ of certiorari. In this particular case, there is no allegation that the Controller, in making the order acted in any way, which was contrary to the principles of fundamental justice and, therefore, even on this ground, as the petitioner had the right of appeal, the learned Judge was right in holding that a writ of certiorari should not be issued.

If a party has a remedy given to him by law and if he does not avail himself of that opportunity, owing to his own default, this Court should not interfere by means of this high prerogative writ.'

(b) Municipal Corporation of Greater Bombay v. K.C. Sen', AIR 1952 Bom 209 (B), where a learned Judge of that High Court, following AIR 1947 Bom 46 (A), held that: ''Unless there is a violation of the fundamental principles of justice, the Court will be loath to issuer a writ of certiorari, if an appeal lies.'

3. Coming to the present case, the Collector passed the order of dismissal, holding that although the petitioner had been acquitted by the Court of Criminal Appeal, nevertheless,

'his conduct and acts, in the circumstances of the case, are calculated to have lowered himself in the estimation of the members of the public and as such, he has alienated their confidence in him as a public servant. This being so, he cannot be expected to discharge his duties to the satisfaction of the members of the public. He has, in my opinion, rendered himself undesirable and unsuitable to be retained in Government service.''

4. It is not for me to express any opinion asto whether the Collector's order was right or otherwise. That would be a matter for the decision ofthe Financial Commissioner, if and when an appealis taken to him.' Suffice it to say, that no fundamental principle of justice appears to have beenviolated. Accordingly, in consonance with the principles laid down in the above rulings, I am unableto admit this petition and hold that it was misconceived. The petitioner had an adequate and specific remedy, i.e. by way of appeal to the FinancialCommissioner which he did not choose himself toavail of. Therefore, this writ petition is rejected.


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