DODDARAJU Vs. DISTRICT AND SESSIONS JUDGE CHIKMAGALUR

JUDGEMENT

(1.) the petitioner in this case was employed as a watchman/peon in the court of the munsiff at kadur. Disciplinary proceedings were instituted against him on the ground that he had absented himself for duties for a period of 120 days without having applied for leave, without having got the leave sanctioned or without having intimated the authorities of the grounds on which he was not attending his duties. The record indicates that two notices were sought to be sent to him to resume his duties which he did not do and after a long period of four months he merrily reported for duty. It was inevitable that disciplinary proceedings had to be instituted under the conduct regulations. He was asked to show cause as to why he should not be punished for unauthorised absence from duty over this long period of time. The petitioner did not dispute his absence and the only justification put forward by him was that due to financial difficulties he had borrowed money from various persons who were pressing him for the refund of those amounts and who made his life miserable because he could not repay the debts whereupon he was reduced to a situation of desperation and he went into a mental depression which was why he just went away from that place. He has expressed his unconditional regret and he has sought to state that he had no intention either to dislocate the government work or to obstruct functioning thereof and it was only because of the aforesaid circumstances which resulted in a mental problem to him that he had remained absent. The enquiry officer, in view of this unequivocal admission found it unnecessary to record any evidence and ultimately an order came to be passed against the petitioner removing him from service. That order has been challenged through the present petition. I find from the endorsement in the order sheet that the learned judge who admitted the matter had effectively confined the consideration to the question of whether or not the imposition of the extreme punishment of removal from service was justified or whether it was disproportionate to the gravity of the misconduct that was established.

(2.) the respondents have filed their reply and the learned government Advocate who represents them has raised a two fold preliminary objection which i require to deal with. In the first instance, he points out that there is a clear provision for the filing of an appeal and he states that since that remedy was not exhausted that this petition is not maintainable and is liable to be summarily dismissed. As far as this aspect of the matter is concerned, the only submission in defence that emerges from the petitioner's side is that in his status he was unaware of the fact that he could file an appeal. His learned Advocate submits that obviously, this aspect of the matter was overlooked by everybody including the respondents, when the matter came up at the admission stage. He submits that even at that point of time if he was directed to file an appeal that he would have done so but after the lapse of five years, if he is directed to file the appeal, that it would be extremely harsh in so far as after this long lapse of time when the petition has come up for final hearing it would only relegate the petitioner to one more round of litigation. The defence pleaded on behalf of the petitioner is extremely weak. The learned government Advocate is right in pointing out that an alternate remedy was available to the petitioner but the availability of an alternate remedy does not present a total legal bar to the maintainability of a writ petition. It is well-settled law that normally when such an alternate remedy is available that a court will not invoke extraordinary jurisdiction under article 226. There are however exceptional cases in which the court does not entertain a petition. In the present instance, it appears that this aspect of the matter was overlooked by everyone concerned at an earlier point of time and under these circumstances, though it is not intended to create any precedent whereby parties will be justified in bypassing an appellate remedy and coming to the court only because of the lapse of five years and the fact that Rule was originally issued on this petition, to my mind would require that at this point of time it would not be proper to uphold such an objection. It is only in these circumstances that i refrain from upholding the objection of the learned government advocate.

(3.) the second objection raised by the learned government Advocate is that this is a case in which admittedly the petitioner has virtually abandoned his duties. The learned government Advocate points out that the petitioner was a watchman/peon and regardless of the fact that it was class iv employment, that it was an assignment of some responsibility. He submits that the unauthorised absence under these circumstances constitutes abandonment of services and is not to be viewed as innocently as the petitioner makes it out to be. Under these circumstances he submits that the present case exemplifies a situation whereby this court should refuse to exercise jurisdiction. The submission proceeds on the footing that the exercise of jurisdiction under article 226 must be directed towards the removal of injustice and if it can be demonstrated that the conduct of the petitioner has been so gross and so brazen, that the court should refuse to interfere with the punishment order. As will be presently pointed out by me, there can be no two opinions with regard to the correctness of these submissions and this court would ordinarily have straightaway upheld them. The only difficulty that is posed is that the petitioner's learned Advocate has made a strong plea on the basis of well defined legal principles that the limited interference that is asked for is only with regard to the quantum of punishment. Had the punishment been proportionate to the misconduct alleged, this court would have refused interference insofar as the petitioner's learned Advocate is right that the punishment is disproportionate to the misconduct alleged, which is why the court cannot refuse interference.