VINOD MAHAJAN Vs. HINDUSTAN COPPER LTD

JUDGEMENT

(1.) FACTS : The petitioner was subjected to disciplinary proceedings on the basis of a charge -sheet dated March 9, 1998. The charge made out against the petitioner was of negligence and inaction contravening rules 4, 5(1 )(e) and (i) of the Hindustan Copper Limited (Conduct, Discipline and Appeal) Rules, 1979 (for short "the Discipline Rules"), by his action unbecoming of a public servant showing lack of devotion to duty and acting in a manner prejudicial to the interest of the company and negligence in the performance of his duty including malingering the work. These charges were basically founded on the allegations of negligence and inaction in cancelling the contract, encashing the performance guarantee bond (PG bond) and counter guarantee bond (CG bond) in respect of the contract for toll -smelting of reverts finalised with Trafigura Beheer BV Amsterdam (Trafigura), resulting in consequential delay in the return of toll -smelted copper cathodes putting the company to additional financial liability by way of enhanced customs duty and also to commercial/operational disadvantage.

(2.) THE petitioner 's reply to the charge -sheet having been found unsatisfactory, he was subjected to an enquiry. In the enquiry, the petitioner was found guilty. By an order dated April 19, 1999, a major penalty of reduction of rank was inflicted upon the petitioner by placing him in a lower post of assistant general manager (materials) (an -nexure H). It is this order, which is under challenge.

(3.) ON behalf of the respondents, maintainability of the writ petition was raised on the ground that rule 32 of the Discipline Rules provides for an appeal, which is an adequate alternative remedy. In fact, this objection was raised at the very initial stage when the writ petition was moved. Admittedly, existence of adequate alternative remedy precludes a person from invoking the writ jurisdiction without availing of the alternative remedy. But this is a discretion of the court exercising writ jurisdiction. The bar is not an absolute one. In appropriate cases, the court is empowered to exercise its discretion in maintaining writ petitions despite existence of adequate alternative remedy. This is a settled proposition of law. Such discretion is exercised when on the face of the record, it appears that the proceedings suffer from lack of jurisdiction or perversity or suffer from violation of equity and natural justice or there are certain facts which appear to the court that gross injustice would be done if the party is forced to undertake the remedy through the alternative process. The present case, as we will discuss at a later stage, in my view, falls within the exception where the court should exercise its discretion. Therefore, I am unable to agree with the contention of learned counsel for the respondents with regard to maintainability of the writ petition. Infirmity in the charge -sheet: