N.C. GUPTA Vs. STATE OF MP

JUDGEMENT

(1.) THIS is an appeal against the order dated 7.10.2006 passed by the learned single Judge in Writ Petition (S) No. 5162/2006. The facts briefly stated are that the appellant is working as Assistant Controller in the office of Printing and Stationary Department Gwalior. By an order dated 20.9.2006 passed by the Deputy Secretary Revenue Department, Government of Madhya Pradesh, the appellant has been suspended on account of an incident which took place on 14.9.2006. Aggrieved by the said order of suspension, the appellant filed Writ Petition (S) No. 5162/2006 before the learned single Judge, but by the impugned order dated 7.10.2006, the learned single Judge dismissed the writ petition after holding that the allegation levelled against the petitioner/appellant cannot be considered by this Court in the writ petition and the petitioner has alternative and efficacious remedy to file an appeal and he can raise all the grounds before the appellate authority.

(2.) MR . Katare, learned counsel for the appellant submitted that under Rule 9 of the M.P. Civil Service (Classification, Control and Appeal) Rules, 1966, only the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order, may place a Government servant under suspension and the Deputy Secretary, Revenue Department, Government of Madhya Pradesh, is not the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the Governor by general or special order to place the petitioner under suspension. He submits that this ground was taken in the writ petition but the learned single Judge has not considered this ground and has, instead, refused to entertain the writ petition at the motion stage after observing that an alternative remedy, by way of appeal, is available to the appellant against the order of suspension. He cited the decision of Full Bench of this Court in M/s. P.C.C. Construction Company and others v. Debts Recovery Tribunal and another [2003 (1) MPJR 260] for the preposition that even where statutory remedy of appeal is available, the High Court can exercise its power under Article 226 of the Constitution of India.

(3.) IT is now settled by the apex Court in series of decisions that when an order is passed without jurisdiction, the same can be challenged before the High Court in a petition under Article 226 of the Constitution and in such cases, the High Court should entertain the writ petition as the order is passed without jurisdiction. The apex Court in Whirlpool Corporation v. Registrar of Trade Marks [AIR 1999 SC 22], has held that the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.