RAM KISHOR SHUKLA Vs. STATE OF M P

JUDGEMENT

(1.) THIS is an appeal against the order dated 20-2-2008 passed by the learned single Judge in W. P. No. 2190/2008 (S) filed under Section 2 (1) of the Madhya pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.

(2.) THE facts briefly are that the appellant has been working as pharmacist cum Store Keeper (Grade I) in the office of the Chief Medical and health Centre, Rewa. For alleged irregularities in purchase of some items and equipments by the Office of the Chief Medical and Health Officer, Rewa, disciplinary proceedings were initiated against the appellant and the appellant was placed under suspension by order dated 3-1-2007 passed by the Collector, rewa. Thereafter, an inquiry was held and a copy of the inquiry report was furnished to the appellant. The appellant furnished a representation against the inquiry report but the Chief Medical and Health Officer, Rewa, passed an order dated 13-2-2008 removing the appellant from service. Aggrieved, the appellant filed Writ Petition No. 2190/2008 (S) under Article 226 of the Constitution of india before this Court but by the impugned order dated 20-2-2008 the learned single Judge disposed of the W. P. No. 2190/2008 (S) holding that the appellant has a remedy by way of an appeal to the Appellate Authority against the order of removal.

(3.) MR. Dileep Pandey, learned Counsel for the appellant submitted that in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others [ (1988) 8 SCC 1], the Supreme Court has held that the power to issue the prerogative writs under Article 226 is a plenary in nature and the High Court has a discretion to entertain or not to entertain a writ petition and an alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction. He submitted that in the present case, the order of removal passed by the Chief Medical and Health Officer, Rewa, is wholly without jurisdiction, inasmuch as he was not Appointing Authority. He referred to the provisions of Rules 2 and 5 read with Schedule I of the Madhya Pradesh public Health and Family Welfare Department Non-Ministerial (Related to the directorate of Health Services) Class III Service Recruitment Rules, 1989, to show that the Appointing Authority of the Pharmacist was the Divisional Joint director.