Article 226| Availability Of Alternative Remedy By Itself Doesn't Divest HC Of Entertaining Writ Plea In An Appropriate Case: Allahabad HC

The Allahabad High Court has recently observed that the availability of an alternative remedy by itself does not divest the High Court of its power under Article 226 of the Constitution of India in an appropriate case, though ordinarily, a writ petition should not be entertained when an efficacious and alternative remedy is provided by law.

The bench of Justice Devendra Kumar Upadhyaya and Justice Om Prakash Shukla by taking into account the rulings of the Supreme Court in the cases of Godrej Sara Lee Ltd. vs Excise and Taxation Officer Cum Assessing Authority 2023 LiveLaw (SC) 70, Radha Krishan Industries vs State of Himachal Pradesh LL 2021 SC 222 and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others (1998) 8 SCC 1, held thus:

"... an exercise of discretionary jurisdiction under Article 226 of the Constitution of India depends on the facts of each case. It is also equally settled that the availability of alternative statutory remedy is not an absolute bar, it is rather a rule of self-imposed discipline/restriction and public policy, and in certain cases falling within the exception as carved out by Hon'ble Supreme Court in the case of Whirlpool Corporation (supra), even in the wake of availability of alternative statutory remedy, this Court can decide to exercise its discretion under Article 226 of the Constitution of India"

The case in brief

The Court was essentially dealing with a Special Appeal/intra-court appeal filed by Ram Manohar Lohia Institute of Medical Sciences, Lucknow challenging an order passed by the Single Judge whereby the preliminary objection raised on behalf of the appellant-Institute regarding maintainability/entertainability of the writ petition filed by respondent no. 1 (Dr. Charu Mahajan) had been overruled. 

In its order, the Single Judge also asked the appellant-Institute to file its counter affidavit to the prayer for grant of interim relief made by respondent no.1-petitioner in the writ petition.

For context, respondent no.1- original petitioner (Dr. Charu Mahajan) was appointed (under an order issued by the Director of the Institute in December 2016) to the post of Maternity and Child Welfare-cum-Lecturer/Assistant Professor in the Obstetrics and Gynaecology in the year 2016. However, in 2018, a PIL was filed calling into question the decisions of the then Director of the Institute regarding alleged malpractices in the selection of teaching faculties at the Institute. 

Following this, the Director General, Medical Education conducted an enquiry wherein certain discrepancies were noticed and the matter was pending before the State Government, with the direction to take appropriate action.

Thereafter, the matter was considered by the Board of Governors wherein it was observed that respondent no.1-petitioner was appointed to the post of Assistant Professor in the concerned department irregularly and accordingly the Board of Directors decided that the Director should take appropriate action for termination of service of the respondent no.1-petitioner treating her appointment to be void ab initio and consequently, she was dismissed.

Now, challenging her termination, she moved before the Single Judge wherein she also challenged the resolution of the Board of Directors whereby her appointment was treated as void ab initio. It was her primary case that during the course of enquiry against her, she was not permitted to cross-examine the witnesses who were essential for her case.

When the matter appeared before the single judge, the Institute in question raised the objection regarding the very maintainability of the writ petition. It was argued that respondent no. 1 had an alternative remedy under section 42 of Dr Ram Manohar Lohia Institute of Medical Sciences Act, 2015 for her grievance, however, as mentioned earlier, the objection was overruled by the Single Judge by means of the order, which was now under appeal before the division bench.

Importantly, in its order, the Singh Judge referred to the judgment of the Supreme Court in the case of Whirlpool Corporation (supra) to note that the facts of the case presented before him, persuaded him to exercise his discretion for entertaining the writ petition.

For context, in Whirlpool (supra) case, the Top Court had carved out the following exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute.

(i) where the writ petition seeks enforcement of any of the fundamental rights;

(ii) where there is violation of principles of natural justice;

(iii) where the order or the proceedings are wholly without jurisdiction; or

(iv) where the vires of an Act is challenged.

Observations of the Division bench

At the outset, the Court noted that the mere availability of an alternative remedy not exhausted by the party approaching this Court invoking writ jurisdiction does not oust the jurisdiction of the Court that will render a writ petition not maintainable.

Now, the question before the Court was whether the Single Judge was justified in making out a case for the exercise of discretion under Article 226 of the Constitution of India in the wake of the availability of an alternative statutory remedy for respondent no. 1 under Section 42 of the Act 2015 or not.

To answer this, the Court prima facie came to the opinion that there existed a rationale for the prayer made by respondent no.1- petitioner to cross-examine certain witnesses during the course of enquiry and that the denial of cross-examination of witnesses or denial of summoning the witnesses as per the prayer made by the respondent no.1-petitioner during the course of enquiry without any justifiable reason, would certainly amount to a violation of principles of natural justice.

In view of this, the Court found that the enquiry on the basis of which the order impugned in the writ petition has been passed suffers from the vice of violation of principles of natural justice and hence, the case as set up by respondent no.1- petitioner falls within one of the exceptions as carved out by the Supreme Court in the judgments in the case of Whirlpool Corporation (supra), M/s Radha Krishan Industries (supra) and Godrej Sara Lee Ltd. (supra).

With this, the special appeal was rejected.

Appearances

Counsel for Appellant: Sr. Advocate Asit Kumar Chaturvedi assisted by Advocate Anupras Singh

Counsel for Respondent: Gaurav Mehrotra, C.S.C.

Case title - Dr Ram Manohar Lohia Institute Of Medical Sciences, Lko. Thru. Director And Others vs. Dr. Charu Mahajan And Others [SPECIAL APPEAL No. - 228 of 2023]

Case Citation: 2023 LiveLaw (AB) 154

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