Deswal Vs. State of Haryana & Ors.  INSC 1707 (6 November 2009)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7397
OF 2009 [Arising out of SLP)No.11917 of 2007] Satwati Deswal ...Appellant
VERSUS State of Haryana & Ors. ...Respondents
This appeal by special leave has been filed against the judgment
and final order dated 17th of May, 2007 passed by the High Court of Punjab
& Haryana at Chandigarh in CWP No. 7460 of 2007. By the impugned judgment,
the High Court had dismissed the writ petition filed by the appellant on the
ground of maintainability and relegated the appellant to take statutory remedy
Heard the learned counsel appearing for the parties and examined
the impugned judgment as well as the other materials on record.
In our view, this appeal must succeed on a very short point.
take up the ground on which this appeal should be allowed, we may state the
relevant facts leading to the filing of this appeal, which are as follows :-
The appellant [M.A. B.Ed. M.Sc (Computer)] was appointed as a lecturer in 2003
in a recognized school in the State of Haryana and was subsequently promoted to
the post of Principal on account of her seniority. Her appointment and
promotion were duly approved by the concerned authorities, but by a
non-speaking and unreasoned order dated 11th of September, 2006, her services
were terminated by the Manager of the School, namely, the respondent No.5
in this case, no show-cause notice was issued to her nor the order of
termination was passed by initiating any departmental proceeding after giving
opportunity of hearing to the appellant. This order of termination was
challenged by the appellant by way of a writ petition before the High Court, 3
which was dismissed by it on the ground that the appellant had an alternative
remedy to file an appeal under the rules before the appellate authority against
the order of termination.
In our view, the High Court had fallen in grave error in rejecting
the writ petition on the aforesaid ground. First, such an order of termination
was passed without issuing any show cause notice to the appellant and without
initiating any disciplinary proceedings by the authorities and without
affording any opportunity of hearing. It is well settled that a writ petition
can be held to be maintainable even if an alternative remedy available to an
aggrieved party where the court or the tribunal lacks inherent jurisdiction or
for enforcement of a fundamental right; or if there had been a violation of a
principle of natural justice; or where vires of the act were in question.
The aforesaid exceptions recognized by this Court were taken note of
by this Court in the case of A.V. Venkateswaran, Collector of Customs, Bombay
v. Ramchand Sobhraj Wadhwani & Anr. (AIR 1961 SC 1506), in which the
Constitution Bench laid down the 4 principles of the above exceptions when writ
application could be entertained even if an alternative remedy was available to
an aggrieved party. The same view was expressed by this Court in the case of
L.K. Verma v. H.M.T. Ltd.& Anr. (AIR 2006 SC 975) and M.P.State Agro
Industries Development Corporation & Anr. v. Jahan Khan (AIR 2007 SC 3153).
Such being the position and in view of the admitted fact in this
case that before termination of the services of the appellant, no disciplinary
proceeding was initiated nor any opportunity of hearing was given to the
appellant. It is clear from the record that the order of termination was passed
without initiating any disciplinary proceedings and without affording any
opportunity of hearing to the appellant. In that view of the matter, we are of
the view that the writ petition was maintainable in law and the High Court was
in error in holding that in view of availability of alternative remedy to
challenge the order of termination, the writ petition was not maintainable in
Apart from that, on a cursory look of the statutory provision of
the Constitution of the Parishad Working Committees, it would be clear that
before imposing any major penalty against an employee, namely, an order of
termination of service, an inquiry must be held in the manner specified in the
statutory rules by which the disciplinary authority shall frame definite
charges on the basis of allegations on which an inquiry shall be proposed and
opportunity must be given to the employee to submit a written statement stating
therein whether he/she desires to be heard in person and no order of
termination also can be passed without the approval of the Managing Committee.
On this count alone, therefore, the High Court was, in our view, in grave error
in dismissing the writ petition of the writ petitioner.
Accordingly, the impugned judgment of the High Court is set aside
and the order of termination passed against the appellant is quashed and the
writ petition stands allowed.
it would be open to the authorities, if so desire, to initiate disciplinary
proceedings against the appellant for her termination from service and if such
disciplinary proceedings 6 are initiated, the authorities shall give proper
opportunity of hearing and permit the parties to adduce evidence in support of
their respective stands and after giving such opportunity, the disciplinary
authorities thereafter shall give hearing to the appellant and then pass a
final order on the question of termination of service of the appellant in
compliance with the concerned statutory rules applicable to the appellant.
For the reasons aforesaid, the impugned order is set aside and the
order of termination passed against the appellant is quashed. The appeal is
allowed. There will be no order as to costs.
................................J. [Tarun Chatterjee]