CHAINA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner who -was a Bus Conductor in the Rajasthan Roadways Corporation, was charge -sheeted by the Divisional Manager, Jodhpur on a charge of misconduct viz., for carrying 14 ticketless passengers under Standing Orders framed by the Corporation. As a result of the Depart mental Enquiry held against him, the Enquiry Officer by his report dated 18 -7 -1976 found the petitioner guilty of the charge levelled against him. The Divisional Manager, Jodhpur who was the competent authority as per his order dated 28 -8 -1976, accordingly terminated his services. The petitioner instead of availing the remedy of an appeal under Standing Order 35(ix) has straightaway filed this writ petition.

(2.) DURING the pendency of the proceedings, Article 226 of the Constitution, as amended by the Constitution (Forty -Second Amendment) Act, 1976, Has come into force from the appointed day i.e. w.e.f. 1 -2 -1977. Section 58(1) of the Act provides that, notwithstanding anything contained in the Constitution, every petition under Article 226 of the Constitution before the appointed day and pending before the High Court immediately before that date, shall be dealt with in accordance with the provisions of Article 226 as amended. Subjection (2) of Section 58 provides that, in particular and without prejudice to the generality of the provisions of Sub -section (1), every pending petition before a High Court which would not have, been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition have been made after the appointed day, shall abate.

(3.) FOR the redress of the injury complained of by reason of alleged illegality viz., (i) the absence of a -speaking order and (ii) the failure to act in accordance with the Rules, the petitioner should have availed of the alternative remedy of an appeal under Standing Order 35(ix). That being so Article 226(3) bars the jurisdiction of the High Court to entertain the writ petition. The contention that Article 226(3) dots not operate as a bar because the impugned order of termination which provides for forfeiture of any pay and allowances results in deprivation of property without the authority of law contrary to Article 31A, can hardly be accepted The forfeiture of pay and allowances is but a consequence flowing from the termination of services. When the order of termination cannot be assailed by a petition under Article 226 of the Constitution, much less the consequential order for forfeiture of pay and allowances.