SHAUKAT ALI Vs. STATE OF U P

JUDGEMENT

(1.) THIS application by Shaukat Ali under Article 226 of the Constitution is directed against an order dated November 7, 1975 (Annexure 'I') passed by the Sub-Divisional Officer, Robertsganj, district Mirzapur retiring the petitioner compul-sorily under Fundamental Rule 56 of the Financial Hand Book (briefly stated as F.R. 56).

(2.) IN order to appreciate the point involved in this case it is necessary to state the facts very briefly. The petitioner was appointed as Lekhpal in this state in the year 1966. He was subsequently confirmed on this post in May 1957. On November 7, 1975 he received a notice from Sub-Divisional Officer, Robertsganj district Mirzapur informing him that he had been compulsorily retired from service and that he would receive three month's salary in lieu of notice. Feeling aggrieved by the said order he has filed the present writ petition. At the time of admission of this petition, the court was not inclined to admit this petition on the ground that he has an alternative remedy available to him under the provisions of Section 4 of the U.P. Public Services (Tribunal) Ordinance, 1975. But as counsel appearing for the petitioner challenged the validity of Section 5(8) of the ordinance of the ground of the same was in conflict with Section 30, of the Advocates Act, the Bench admitted the petition and directed the case to be listed before the appropriate Bench. It is settled that power of the High Court under Article 226 of the Constitution is a discretionary one in the exercise of which it can take into consideration the availability of an adequate alternative legal remedy to the applicant. If it finds that such an applicant can have adequate and suitable relief elsewhere it has the discretion to refuse to exercise its extra-ordinary jurisdiction. This Article is not intended to provide additional or alternative remedy where another effective remedy can be had. In order to find whether adequate and effective relief is available to the petitioner under the U.P. Public Services (Tribunal) Ordinance, 1975 (briefly stated) as the Services (Tribunal) Ordinance, we may now read some of its provisions.

(3.) A review of the provisions of the Ordinance would show that it provides a complete and wholesome machinery for the vindication of grievance of a Government servant. The powers conferred on a tribunal cover a wide amplitude and not only entitle it to grant the reliefs sought, but also to enforce the same, if necessary. It is less expensive as the procedure provided is simple, hence heavy expenses would not be required to be made. The procedure provided is simple and not cumbersome. It does not require certified copies to be filed and has further done away with the necessity of giving of formal proof cf the papers filed. It also entitles the tribunal to pass interim orders. Most of the questions which may be raised in a writ petition, can be considered by the Tribunal. Often petitions filed under Article 226 are dismissed as this court finds itself unable to decide questions of facts on the basis of affidavits exchanged between the parties. Furthermore, as ordinance provides for expeditious disposal of the cases, a government servant is also likely to get relief without loss of much time. For these reasons I find that since no hardship is likely to be caused to the petitioner by pursuing the statutory remedy, a writ against the order retiring him from the service cannot issue. I, however, wish to make it clear that as ayailability of alternative remedy is not an absolute bar to the exercise of writ jurisdiction. Every petition filed by a government servant cannot be rejected on this ground irrespective of the points involved for decision by the High Court. For instance if an order passed by an authority is without jurisdiction or patently in excess of its jurisdiction it may be possible to entertain the petition and decide it on merits. Even this depends on facts. The general principles on which the court should act have been laid down by the Supreme Court in several cases, their application to each particular case would depend on a variety of inn dividual facts. So far as the present petition is concerned it may be pointed out that this does not fall in the category where the authority had no jurisdiction to retire the petitioner or it has committed an apparent error requiring interference by this court in these proceedings. The remedy provided by the Ordinance is more efficacious.