Shri Probodh Chandra Roy (Petitioner) v. Life Insurance Corporation Of India And Others (S).

Manash Nath Roy, J.:— The business of the Metropolitan Insurance Co. Ltd., in terms of the Life Insurance Corporation Act, 1956 (hereinafter referred to as the said Act) was taken over by the Life Insurance Corporation of India (hereinafter referred to as the said Corporation and on such taking over the terms of service and conditions of employment of the employees of the erstwhile Insurers, herein this case the Metropolitan Insurance Co. Ltd., were guided and controlled by the provisions in section 11(1) of the said Act.

2. The petitioner was originally employed under the Metropolitan Insurance Co. Ltd., in March 1955 as an Assistant in the Head Office and duly confirmed thereafter. He has alleged that his family had a business known as the Hindustan Supply Agency which was solely engaged in the supply of Mill Stores. He has further stated that the said business prior to his father's serious illness, used to be looked after by him and in fact consequent to such illness the said business was ultimately suspended completely. It has of course been stated by the petitioner that either directly or indirectly he had not engaged himself in any trade or business with or in the said business.

3. There were some allegations that the petitioner was contacting the policy holders and claimants, who used to come to the concerned office of the said Corporation for getting necessary payments due to them and encash those cheques through tyhe account of the said family business and he was associating himself with the same. Such act being contrary to and in contravention of Regulation 27/1 of the (staff) Regulation, 1960 (hereinafter referred to as the said Regulations), which lays down that no employee or class of employees, shall except with the approval of the Corporation, engage directly or indirectly in any trade or business. Since the petitioner was found or thought to have acted in contravention of the provisions of the said Regulation 27/1, by a letter dated July 3, 1967, he was asked to explain the position. Necessary reply was given by the petitioner on August 26, 1967, wherein he admitted the fact of encashment of certain cheques and it was stated that such act was done by in him compliance with the requests of some claimants and other colleagues for having the chsqaes encashed through the account of the said family business. It has been stated by the petitioner that the said act was done by him without any reward or pecuniary consideration. Thereafter, a charge sheet was issued against the petitioner on August 26, 1967, for carrying on business or trade through the said family business and more particularly by encashing cross cheques issued by the said Corporation and he was asked to put in his written explanation. The charges were on three counts and the petitioner denied them by his explanation dated September 9, 1967. Consequent to the charge sheet, the petitioner was placed under suspension by an order of August 26, 1967. Then, an enquiry was held, whereupon the petitioner was asked to show cause on March 8, 1968 as to why he should not be dismissed from the service of the said Corporation. The petitioner filed his reply alleging some procedural irregularities in the enquiry and categorically denying the charges as frame and their bonafide or validity. Such explanations were not accepted and as a result thereof, by an order dated May 31, 1968, he was dismissed with retrospective effect from May 17, 1968. From such determination, in terms of Regulation 39(1)(g) of the said Regulations, an appeal was preferred to the Managing Director of the said Corporation, being the appellate authority, and on December 18, 1958, the petitioner was informed about the rejection of the same.

4. Thereafter, on April 2, 1969 the present Rule was obtained challenging not only the validity, bonafide and legality of the connected disciplinary proceedings, but also contending that the steps and actions as taken were not only in contravention of the provisions of the said Act and the Regulations, but they were also bad for violation of principles of natural justice, the more so when the orders impeached, were in violation of section 11(1) of the said Act. In fact, it has been contended that there was no violation of Regulation 27(1). In any event, it was contended that the act and action in finding the petitioner guilty of the charges could not be justified on the basis of the findings of the enquiry itself and the Impugned orders were violative of Articles 14, 16 and 311 of the Constitution of India.

5. In their return to the Rule dated January 4, 1973, the Respondents have categorically denied the material allegations and they have further stated that the actions as taken were justified, because of the admission by the petitioner in the enquiry to the effect that the proprietorship of the said family business was with him and in fact the same remained with him and furthermore he had encashed 136 cheques through the account of the said business with Messers United Industrial Bank Ltd., which was closed in or about June 1957. That apart, it was contended that there was no violation of principles of natural justice and the petitioner was afforded all and due opportunities to effectively represent his case. It was also contended that the findings at the enquiry were due and they were arrived at on proper appreciation of the relevant available evidence on record. The Respondents have also stated that the determination in the case would involve serious and disputed questions of fact, and as such no interference should be made. It has also been contended that no writ would be available against the said Corporation.

6. When the hearing of the case was taken up on February 2, 1977, Mr. Si n, appearing for the Respondents, took a preliminary point as to the maintainability of the petition in view of the provisions of the Constitution (Forty Second Amendment) Act, 1976 (hereinafter referred to as the said an ending Act) and in particular, he submitted that the present proceedings have abated. He first referred to section 58 of the said amending Act, which provides for special provisions as to pending petitions under Article 226 end lays down that:—

“Section—58: Special provisions as to pending petitions under article 226—(1) No withstanding anything contained in the Constitution every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to in this section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on, of in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of article 226 and substituted by section 38.

(2) 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 had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated:

Provided that nothing contained in this sub-section shall affect the right of the petitioner to seek relief under any other law for the time being in force in respect of the matters to which such petition relates and in computing the period of limitation, if any, for seeking such relief the period during which the proceedings relating to such petition were pending in the High Court shall be excluded.

(3) ………

(4) ………

Explanation—In this section, “appointed day” means the date on which section 38 comes into force:

and submitted that thus in view of the provisions of section 38 of the said amending Act, which has substituted a new Article 226 of the Constitution of India to the following effect:

Section—38; Substitution of new article for Article 226—For Article 226 of the Constitution, the following article shall be substituted, namely;—

Power of High Courts to issue certain writs—“226. (1) Notwithstanding anything in article 32 but subject to the provisions of article 131A and article 226A, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,—

(a) for the enforcement of any of the rights conferred by the provisions of Part III; or

(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution of any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder; of

(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in sub-clause (b) where such illegality has resulted in substantial failure of justice.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority of the residence of such person is not Within those territories.

(3) No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.

(4) ………

(5) ………

(6) ………

(7) ………

in place of the old Article 226, which was to the following effect:—

226. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs, in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(1A) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territoris within which the cause of action. Wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(2) The power conferred on a High Court by clause (1) or clause (1A) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32,

with effect from February 1, 1977 the proceedings in this Rule cannot be continued. In view of the provisions for alternative remedy available under the said Act by way of Review and Memorium in sections 48 and 49 respectively and the more so when such remedies are still open to the petitioner. Relying on the language of the present Ariticle 226(3), it was also submitted by Mr. Sen that even a suit where the petitioner would be able to get his grievnces redressed, would operate as a bar for maintaining a petition, had the list would also come within the expression “other remedy”. It was submitted that the words “any other purpose” as interpreted earlier, caused and created difficulties and as such those provisions are absent in the present Article 226 and clauses (b) and (c) as mentioned hereinbefore have been purposefully inserted and (or that reason those words “any other purpose” have been omitted and purposes under the present Article 226 which are there in clauses (a), (b) and (c) have been provided and those are provisions for the infraction of which interference may be made and not for any other purpose. Mr. Sen further submitted that for any challenge under the present 226(a) viz., for the enforcement of any of the rights conferred by the provisions of Part III of the Constitution viz., for enforcement of rights under Articles 12 to 35, the present Article 226(3) would not be a bar, but that would certainly be a bar in respect of cases covered by or falling under sub-clauses (b) and (c) as aforesaid. It was also submitted by him that even in matters pending prior to February 1, 1977, the Court, before exercising its jurisdiction under the present Article 226, must first be satisfied as to whether they really come under any of the sub-clauses of the said Article 226 and consider if in the event of the said sub-clauses being there on the date of the issue of the Rule, whether such Rules could at all be issued.

7. The aforesaid preliminary points, by consent of parties, were taken up for consideration first and it was submitted that no determination on merits should be made now as the provisions of the present transitional Statute must be examined Mr. Chakravartti first placed reliance on sections 58 and 38 of the said amendment and submitted that although the words “any other purpose” as in old Article 226 have not been used in the present one expressly, such terms have been preserved in the said sub-clauses (b) and (c). It was submitted by him that the language of the said sub-clauses (b) and (c) are illustrative _and thus the words “redress” which would not mean “remady”, would not be a bar in cases where alternative remedy is available. He submitted that the words “any other law for the time being in force as in Article 226(3). would not mean and include a suit because in that case the term “law” would have been mentioned or used in sub-clause 9(b) and (c). Mr. Chakravartti also argued that the provisions of article 226(3) would not be a bar in cases falling under Article 226(1)(a), which deal with Fundamental rights and in fact has in terms preserved the first part of the old Article 226. In that view of the above it was submitted that the intention behind the provisions and that of the amendment, should be considered. It may be mentioned that the object of the proposed amendment amongst others is to spell out expressly the high ideals of socialism, secularism and integrity of the Nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socioeconomic reforms for implementing the directive principles. It is also proposed to specify, the fundamental duties of the citizens and make special provisions for dealing with anti-national activities, whether by Individuals or associations and also to reduce mounting arrears in High Courts and to secure the speedy disposal of service, revenue and certain other, matters of special importance in the context of socio-economic development and progress for which it has been considered fit and necessary to provide for administrative and other Tribunals for dealing with such matters while preserving the jurisdiction of the Supreme Court in regard to such matters under Article 136 of the Constitution and as such it was thought necessary and expedient to make certain modifications in the writ jurisdiction of the High Courts under Article 226.

8. Mr. Chakravartti submitted that it was never the intention of the present amendment to put a restraint on or to restrict the old theory that “alternative remedy is not an absolute bar”, which has been duly evolved on the basis of judicial interpretation given to the provisions of the old Article 226 and the more so when the words “any other purpose” as in that old Article have been maintained in substance by Article 225(1)(b) and (c) and the more so when the same has not been done away with or given a go by. Mr. Chukravartti first referred to the language of section 45 of the Specific Relief Act and thin to that of the old Article 226 and submitted that provisions under them were silent about the bar on the existence of alternative remedy and it is only by way of judicial interpretations, such bar has been imposed. It was submitted that the issue of a writ or for interference in this jurisdiction, would be a case of rule of discretion and not rule of law and in appropriate cases, the High Court should interfere even if there is an alternative remedy, because such remedy is not an absolute bar and that too when the same would be available for “any other purpose”. In support of his contentions, relianc; was placed on the determinations of the Supreme Court in the case of (1) Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (1976) 2 SCC 82 : AIR 1976 SC 425, wherein on the question of the power of the High Court it has been observed that:

“The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person—even a private individual —and be available for any (other) purpose—even one for which another remedy may exist. The amendment to Art. 226 in 1963 inserting Art. 226(1A) reiterates the targets of the writ power as inclusive of any person by the expressive reference to ‘the residence of such person’. The Supreme Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation of other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered. Speaking in critical retrospect and portentous prospect, the writ power has, by and large, been the people's sentinel on the qui vive and to cut back on or liquidate that power may cast a peril to human rights”.

9. Mr. Chakravartti has submitted that the remedy or redress as referred to in the present Article 226(3), has reference to a new Chapter XIVA, which has been incorporated by way of addition and the “law” as referred to therein, has a reference to existing law in terms of Article 366(10) of the Constitution of India and the Rules and Regulations as are in issue in this case would not be “such law” which would come within the purview of Article 246(3) and unless Tribunals as mentioned or referred to in Articles 323A and 323B are set up by the appropriate lagislature, this Court will have jurisdiction to entertain petitions in all matters where such Tribunals are required to be established but in fact have not been established and till then. It was also submitted that in respect of service matters and with regard to those services as are referred to in Article 323A(1), is to the following effect:—

323A(1)— Parliament may, bylaw, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of services of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.

10. The appropriate authority would be the Parliament and sub-clauses 2(d) and (e) which are to the following effect:

(2) A law made under clause (1) may—

(a) ………

(b) ………

(c) ………

(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1)

(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment.

(f) ………

(g) ………

11. can thus exclude the jurisdiction of this Court, except the jurisdiction of the Supreme Court under Article 136, with respect to the disputes and complaints in respect of matters as specified in clause (1) and further provide for transferring to each such administrative tribunal, any cases pending before this Court immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal, if the cause of action on which such suits or proceedings are based had arisen after such establishment. It was further submitted by Mr. Chakravartti that the same would also be the position under Article 323B(2)(d) and (e), in respect of Tribunals for other matters, where the State Legislatures are empowered to constitute the respective Tribunals. Thus, it was submitted that so long such Tribunals are not established, either by the Parliament or by the State Legislature, in respect of the respective spheres or matters, the Courts will have the jurisdiction to entertain applications for appropriate writs. In support of his contentions that there would be no ouster of jurisdiction of this Court unless the necessary Tribunals are established, reference was made on the determinations in the case of (2) State of Kerala v. Mis. N. Ramaswamy Iyer & Sons, A.I.R 1966 S.C 1738, wherein it has been observed that:

“The jurisdiction of the Civil Court may be excluded expressly or by clearly implication arising from the scheme of the Act. Where the Legislature sets up a special tribunal to determine questions relating to rights or liabilities which are the creation of a statute, the jurisdiction of the Civil Court would be deemed excluded by implication.

The Travancore-Cochin General Sales Tax Act is a complete code dealing with the levy, assessment and collection and refund of tax. It authorises investment of power in a hierarchy of authorities to administer the Act. For the purposes of making assessment of tax, the authorities have power to decide all questions arising before them, and the orders of the appellate authorities subject to the exercise of revisional jurisdiction under S. 15 are declared final. Liability to pay tat arises under and by virtue of the provisions of the Act, and the quantum of liability may be determined under the Act alone. The jurisdiction of the Civil Court in these matters, was, therefore, impliedly barred by the scheme of the Act.”

12. It was also submitted relying on the determination in the case of Hill v. C.A Persons & Co. Limited, (1971) 3 All. ER 1345, that until and unless the respective Tribunals are established, whenever a man has a right the law should give a remedy on the application of the Latin maxim ubi jus ibi remedium and such principles should enable the Court to step over the tripwires of previous cases and to bring the law into accord with the needs of the day. Thus, Mr. Chakravartti also contended that unless the Tribunals are established, the employees of the category of the petitioner, cannot be allowed to be without any remedy in law and as such the existing practice of availing of the benefits of the writs, if they are available, should be allowed to be continued. In support of his contentions as aforesaid. Mr. Chakravartti further placed reliance on the determination in the case of Baleswar Singh v. Commissioners for the Port of Calcutta, 70 C.W.N 737, where it has been observed that unless necessary Rules an framed by the Commissioners for the Port of Calcutta under Section 31(1)(i) of the Calcutta Fort Act, 1890, the stand taken by them that they follow the circulars and administrative instructions of the Central Government in such matters, would not in law amount to the framing of Rules under the said section. The case as mentioned above and the determinations therein have been upheld in appeal in the case of Commissioners for the Port of Calcutta v. Baleswar Singh, 71 C.W.N 786.

13. It was then submitted by Mr. Chakravartti that the language used in Article 226(3) is “redress” and the Tribunals, when established or a Tribunal may not have the power to give necessary redress and in any event, when no provision has been made for taking away the jurisdiction of the High Court and a person comes up after exhausting all the available remedies, the Court should interfere and that too at least in the instant case or a case of the present nature, where the petitioner has admittedly come up after exhausting the available remedy by way of appeal. It was submitted that such lack of jurisdiction should not be readily inferred. Mr. Chakravartti contended that under Article 226(3), a Civil Suit should not be considered as an alternative remedy and as such a bar for maintaining an application when admittedly, the time construed in a suit is expected to be more, the procedure is some what lengthy and expensive. In support of his contentions, Mr. Chakravartti relied on the determination of the Supreme Court in the case of Century Spinning and Manufacturing Co. Lid. v. The Ulhasnagar Municipal Council,, (1970) 1 SCC 582 : AIR 1971 S.C 1021, where it has been observed that merely because a question of fact is raised the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a Civil Suit against a public body. Reliance was also placed on the case of Secretary of State represented by the Collector of South Crcot v. Mask and Co., (L.R) 67 IA 222. The respondents. Mask and Co. a firm of merchants, imported a quantity of betel-nuts into British India. The Assistant Collector of Customs assessed them for the purposes of duty on a tariff valued as “boiled.” The respondents, contending that they were raw sliced betel-nuts subject to duty ad valorem, appealed from the decision of the Assistant Collector to the Collector of Customs, who dismissed the appeal and on the matter being taken in revision to the Government of India, the Collector's decision was affirmed.

14. In the suit out of which the appeal arose, the respondents sought to recover the excess amount collected from them, under protest, by levying duty upon a tariff and not on ad valorem basis. The main question for determination in the appeal was whether the order passed by the Collector of Customs on the appeal under the provisions of section 188 of the Sea Customs Act, 1878, against the assessment of duty by the officer of Customs, and which was subsequently affirmed in revision under the provisions of section 191 of the Act, constituted a final adjudication, or whether the civil courts had jurisdiction to entertain the suit of the respondents. The Subordinate Judge held that the Courts had no jurisdiction to entertain the suit. An appeal to the High Court (Varadachariar and Pandrang Row, JJ.) was allowed, and the Subordinate Judge was directed to proceed to dispose of the suit on its merits, and on appeal from the said determination of the High Court of Madras, it has been observed that:—

“There is no reason for limiting the words, “any decision or order passed by an officer of Customs under this Act” in s. 188 of the Sea Customs Act, 1878, to decisions or orders passed by way adjudication under s. 182 of that Act. The decision of an officer of Customs as to the rate of duty leviable under s. 188 of the Sea Customs Act, 1878, from a decision or orders passed by an officer of Customs as to the rate of duty leviable under a tariff excludes the jurisdiction of the civil courts to entertain a challenge of the merits of the decision of the officer of Customs. The provision in s. 188 that “every order passed in appeal” under this section, shall, subject to the power of revision” conferred by section 191, be final, “applies equally to appeals against adjudications under s. 182 and to appeals against decision or orders as to the rate of duty leviable under a tariff.”

15. In addition to his submissions that Article 226(3) would not be a bar in respect of cases under Article 226(1)(a), Mr. Chakravartti submitted further that the right to move for enforcement of Fundamental Rights, in addition to Articles 16 and 31, which have not been suspended by the Proclamation of Emergency, as declared by G.S.R 361(E) and published in the issue of the Gezette of India (Extraordinary), dated June 27, 1965, would also be available for enforcement of rights under Articles 14 and 19. It may be mentioned that the said G.S.K puts a restriction on the rights of any person (including a foreigner) to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 and further envisages that all proceedings pending in any Court for the enforcement of those rights shall remain suspended for the period during which the Proclamation of Emergency would continue, it was further submitted that even though the said Articles have been suspended during the continuance of Emergency by the Proclamation, the rights under those Articles have not been taken away. They are still subsisting but have been kept in animated suspension and as such any challenge on the basis of the said Articles and Article 19 which has subsequently been added, should at least be entertained for determination in future. It was lastly submitted by Mr. Chakravartti that section 58 of the said amending Act is incompetent under Article 368 and the same is rather outside the scope and purview of the said Article and since the point regarding the Constitutional validity of the said section 58, which is a Central law, has been raised or is involved in this case, so under Article 226A, the High Court should not consider the same or the validity thereof, but in terms of Article 131A as incorporated by section 23 of the said amending Act, which is to the following effect:—

131A. (1) Notwithstanding anything contained in any other provision of this Constitution, the Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine all questions relating to the constitutional validity of any Central law.

(2) Where a High Court is satisfied—

(a) that a case pending before it or before a court subordinate to it involves questions as to the constitutional validity of any Central law or, as the case may be of both Central and State laws; and

(b) that the determination of such questions is necessary for the disposal of the case, the High Court shall refer the questions for decision of the Supreme Court.

(3) ………

(4) ………

(5) ………

16. refer the same for the decision of the Supreme Court and till such decision, should also in terms of Article 131A(4), which is in the following terms:—

131A(4): When a reference is made under clause (2) or clause (3), the High court shall stay all proceedings in respect of the case until the Supreme Court decides the questions so referred, stay all proceedings in respect of the case.

17. Apart from the cases on the question of alternative remedy as mentioned herein before and how far the same operates as a bar, Mr. Chakravartti relied on the cases of State Of U.P v. Mohammad Nooh ., AIR 1958 SC 86 A.V Venkataswaran Collector of Customs, Bombay v. Ramchand Sebhraj Wadhwani; AIR 1961 SC 1506, Babu ram Prakash Chandra Maheswari v. Antarim Zila Parishad, AIR 1969 SC 556, and L. Hriday Narain v. Income Tax Officer, Bareilly, (1970) 2 SCC 355 : AIR 1971 SC 33 and submitted that the existence of alternative remedy should not also be considered as a bar in case of an application for a Writ of Certiorari although the case may be different in respect of an application for a writ of or a writ in the nature of Mandamus. It was submitted further that there may be cases where remedy available is not adequate viz., in cases where resort to the same would not secure the relief, which the action complained of demands, e.g, where interim relief will not be available by reason of a statutory notice which is required by the provisions of the section 80 of the Civil Procedure Code or where it would be futile to drive a party to an alternative remedy, e.g when an appellate authority has prejudged the issue and the authority whose order is impugned, has acted under the general or special directions of the appellate authority, a suit should not be treated as “other remedy” in terms of the present Article 226(3).

18. In the old Article 225, there was no mention or any restriction imposed on the Court's power to exercise the jurisdiction in a writ proceeding, where there was any other alternative remedy available. But following the English principles and practice, where the very definition of prerogative writs have been held to be or considered to be an extraordinary remedy, to be considered in the absence of any other adequate remedy, determinations have been made by necessary judicial pronouncements that the existence of an alternative remedy is not an absolute bar to the exercise of jurisdiction of entertaining an application in vim of each available alternative remedy and in appropriate cases, where such available remedy was not efficacious, the Courts could interfere. In fact under the old Article 226, the Constitution of India has adopted the nomenclature, of the English writs and as such the English principles relating to the writs were available so long as they were not opposed to the Constitution.

19. Under the Specific Relief Act prior to the coming into force of the old Article 226, the High Court's power to make an order was subject to the condition that the applicant had no other specific and adequate legal remedy. Such provision in the proviso no section 45(c) contained the general principles as to Mandamus. Such principle was applicable to the High Court under the said old Article 226. Mandamus is no doubt a discretionary remedy and the purposes of the same “Is to supply defects of justice; and accordingly it was issued, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right and the same could be issued in cases where although there is an alternative legal remedy, yet, as has been held in the case of N.M.C.S & W. Mills v. Ahmedahad Municipality, AIR 1967 SC 1801 that such mode or redress is less convenient, beneficial and effectual. Thus, Mandamus could not issue under the old article 226, where there was an alternative and adequate remedy to meet the needs of the case. It is also not necessary that the alternative remedy should be more or less of the same character, if not identical with, the one asked for under the writ but such remedy must be such, as will enforce the right. Mandamus is not a writ of right. But writs of Certiorari and Prohibition are not so and are writs of right. Rut even, in those cases, the existence of an adequate alternative remedy is to be taken Into account in granting the writ, except in certain cases where the writ Issues as of course. The existence of an alternative remedy is also to be considered in cases of Habeas Corpus and quo warranto and which is adequate for the needs of a case, is a matter to be taken into consideration in granting the writ. So, as a general rule, the existence of an adequate alternative remedy to meet the needs of cases, was a matter to be taken into consideration in granting the writ. So far as the High Courts are concerned, the position is clear that their power under the erstwhile Article 226 was discretionary one, in the exercise of which they could take into consideration, the availability of an alternative legal remedy to the applicants. This position was made further clear in the case of K.S Rashid v. Income-tax Investigation, Commission, AIR 1954 SC 207 and to the effect that the remedy provided for in Article 226 is a discretionary one and the High Court has always the discretion to refuse to grant any Writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere and such view has been followed in later cases and at least upto 1969 in the case of Baburam Parkash Chandra Maheswari v. Antarim Zila Parishad etc. (supra).

20. The cases as cited at the Bar would be of little avail or assistance now in view of the specific mandatory restrictions imposed by the present Article 226(3) and that too when the same lays down that no petition for the redress of any injury as referred to in sub-clause, (b) or (c) shall be entertained. If any other remedy for such redress is provided for by or under any other law for time being in force. The said sub-Clause (3) has of course no application so far as applications for enforcement of any rights conferred by the provision of Part III viz., Fundamental rights as mentioned in Article 12 to 35 are concerned, subject to their availability and if they are not kept in suspension for any reason whatsoever. Primarily, on the wordings of the old Article 226 there was some discretion left with the Court to interfere or not to do so in case of available alternative remedy, but the present Article 226(3) has taken away that discretionary use of powers and as such the Courts cannot ordinarily ignore the existence of any other remedy and use its earlier discretionary jurisdiction for any other purpose or for any reason whatsoever or to be more appropriate excepting in cases of clauses (b) and (c) of Article 226(1) and Mr. Chakravartti is right and justified in his submissions that the first part of the old Article 226 which dealt with Fundamental rights have been maintained in fact by clause (a) as aforementioned and the words “any other purpose” as used in the said old Article 226 have been duly maintained in the present sub-clauses (b) and (c) the word “law” as used in sub-clause (3) would mean not only the law for the in fraction of and under which the application is made but also the law which is for the time being in force. This takes us to the question, whether a suit under the Civil Procedure Code, which is a law for the time being in force or any other law as operative; would be a bar or should be considered as such or would come under the expression “other remedy” as used in Article 226(3).

21. The amendment of Article 226(3), it appears. Is really in conformity with or in the line of the earlier Supreme Court decisiong. It hrs been observed in the case of Sang rem v. Election Tribunal, ((1965) 1 SCR 1 that though the powers of the High Courts under Article 226 are discrerionary and the limits can be placed upon the same, such discretion must be exercised along recognised lines and not arbitrarily and as further observed in the case of Thansing v. Superintendent of Taxes, AIR 1964 SC 1419, subject to certain self imposed restrictions viz., in exercise of the said discretionary jurisdiction, the High Courts should not act as Courts of appeal or revision to correct as held in the case of Dwarka v. I.T.O, AIR 1965 SC 81, mere error of laws or of fact, and resort to such jurisdiction, is not intended as an alternative remedy for relief which as observed in the case of Thansingh v. Superintendent of Taxes (supra) is prescribed by the statute and the more so when it has also been observed in the said Thansingh's case (supra) and in the case of S.T.O v. Srivaratan, AIR 1966 SC 142, that where it is open to the aggrieved person to move another Tribunal, or even itself in another jurisdiction, for obtaining redress in the manner provided in a statute, the High Court, will not, by entertaining such petition under Article 226, permit the machinery created by the statute to be bypassed. Thus, from the aforementioned determinations, it is clear that even under the old Article 226, when there was no specific restriction as in Article 226(3) of to-day and when the exercise of power was discretionary and the Courts had authority to make such determinations or interfere in appropriate cases for ends of justice or for any other cause, ordinarily there were restrictions on such power of interference in cases of suits or where appropriate remedy was available before the appropriate Tribunal.

22. The old Article 226 never intended to confer a new remedy in case where remedy by way of suit for declaration and injunction were ordinarily available. Some inconvenience or delay in getting redress by filling a regular suit alone could not be regarded sufficient to entitle a person to have recourse to the extraordinary remedy under the said Article, unless it could be established that such delay and inconvenience would make the relief sought for nugatory. In the case of P.K Banerjee v. L.J Simonds, AIR 1947 Calcutta 307, wherein an application for a writ under section 45 of the Specific Relief Act, the case was based on con-tract, the prayer for a writ was held to be not maintainable for the availability of adequate remedy by way of a suit. This was and is the consistent view of all the determination under the old Article 226 and as such Courts could ordinarily refuse to interfere where adequate alternative remedy was available. But at the same time it should be remembered that the words of the Supreme Court in the case of Verapa Pillai v. Raman and Raman, AIR 1952 S.C 192, as approved in later decisions, that where the particular Act provides for a specific remedy appropriate to the case, the High Court will not ordinarily interfere under Article 226. In the case of Additional Collector of Costoms, Bombay v. Shantilul Chotolal & Co., AIR 1966 S.C 197 it has been observed that the High Court will have to consider in each case whether the alternative remedy is adequite and prompt or whether in the circumstances of the case, it would not be more convenient, effectual and beneficial to grant relief, by means of a writ, directions or order under the old Article 226, than to ask the applicant to it seek by a regular suit or other process. Thus where the question is one of lack of jurisdiction or want of or illegal exercise of jurisdiction of the particular officer or forum, in terms of the determination of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. Income Tax Officer, Calcutta, AIR 1961 S.C 372, the High Courts could interfere or in terms of the determination of the Supreme Court in the case of Baburam v. Antaria Zila Parishad etc. (supra) interference may be made in case of an error apparent on the face of the record or for violation of principles of natural justice. The alternative remedy as referred to hereinbefore need not be a statutory one. Even the availability of the general remedy of suit will ordinarily be a ground for refusing the writs asked for. Thus it will be very difficult to hold that a suit will not generally come under the words “other remedy”, apart from the remedy available under the relevant statute. So in cases where the redress of the injuries as referred to in subclauses (b) and (c) of the present Article 226(1) can be obtained effectively either by way of a suit or by way of other remedy under the concerned statute, an application will not ordinarily be maintainable and the same cannot be entertained. That the suit may also be considered as other remedy, seems to be apparent and dear from the language of the proviso to section 58(2) of the said amending Act. But the provisions of sub-clause (3) as stated hereinbefore would not come into play in case of actions coming under sub-clause (a) of the present Article 226(1).

23. So far the proceedings pending prior to February 1, 1977, the Courts will have to consider whether they really satisfy the tests as laid, down in Article 226(1)(a) or (b) or (c) or all of them, before exercising the powers under the Article and that too in view of the special provisions as to pending proceeding under the present Article 226 which has been incorporated by section 58 of the said amending Act, in my view would not be hit by Article 226 since the same lays down the procedure to be followed by the High Courts or a guideline for them in entertaining matters under Article 226 or for interference and has not amended or changed the provisions of the new Article 226 but has also made provisions for interpreting the same or putting the same into action only. In short the impugned section does not purport to change the provisions of the present Article 226. The above determination finds support from the observations of the Supreme Court in the case of Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, where the validity of the Constitution (17th Amendment) Act 1964 was challenged in an application under Article 32. The said section 58 is in consonance with and not against the object either of the Constitution or of the said amending Act. So far the intending proceeding's after February 1, 1977 are concerned, the Courts will also have to be satisfied about the availability of the grounds in Article 226(1)(a) or (b) or (c) or alt of them before entertaining an application and use such power of interference subject to sub-clause (3) which as stated hereinbefore has application in matters coming under clauses (b) and (c) and not under (a).

24. Admittedly, no Tribunal has as yet been established in respect of matters specified in Articles 323A or 323B and no Rules have been framed by the appropriate Legislature for excluding the jurisdiction of the Courts in terms of the respective clauses of the said Articles, particulars whereof have been mentioned herein before, and as such the ban under section 58(3) of the said amending Act which is a conditional ore viz., so long the Tribunals are not duly established, the High Courts in my view will have jurisdiction to entertain applications to the issue of Rules: if they are not otherwise hit by the several sub-clauses of the present Article 226. So long the Tribunals are not established in terms of Chapter XIVA, the High Courts would retain the power as mentioned hereinbefore to entertain petitions for the issue of Rules. Therefore, cases will not abate on the ground of existence of such Tribunals in terms of Chapter XIVA till the Tribunals are established and the jurisdiction of the Courts are specifically ousted. But at the time of the hearing of a case, be it a pending one or one instituted after February 1, 1977, section 58 of the said amending Act would come into play automatically and the Courts intending to interfere in the matter, should at first be satisfied that the proceedings is not hit by the several provisions as mentioned in the several sub-clauses of the present Article 226. The present Article 226(3) has mentioned about “other remedy” as provided for by or under any other law for the time being in force and as such apart from appeal, any provision for review or revision under a concerned statute including the Rules and Regulations framed thereunder, would come within the ambit of the said words and as stated hereinbefore, ordinarily suit would be a bar. Apart from the cases on the point of alternative remedy, which is mentioned in and argued as “other remedy” as used in sub-clause (3) of Article 226, it has been held in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, which:

“was a case under section 45 of the Specific Relief Act, that the jurisdiction conferred by the section is very special in kind and is strictly limited in extent though the ambit of the powers exercisable within those limits is wide. The limitation firstly is that the order can only direct some specific set to be done or come specific act to be forborne. It is therefore not possible to give a mere declaratory relief as under section 42, secondly because of the pro-vise ‘he order can only be made if the doing or the forbearing is clearly incumbent upon the authority concerned under any law to the time being in force and thirdly, there must be no other specific and adequate legal remedies available to the applicant.”

25. In Thansingh's case (supra), which was a case under the old Article 226, tfe Supreme Court has further observed that where it is open to the aggrieved party to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226, the machinery created under the statute to be by passed, and will have the party applying to it to seek resort to the machinery so set up. The power of interference by the High Court in case of the existence of an alternative remedy, has further been clarified in the case of Tata Engineering & Locomotive Co. Ltd. v. The Assistant Commissianet of Commercial Taxes, AIR 1967 SC 1401 by observing that:

“the jurisdiction of the High Court under Article 226 of the Constitution is extraordinary and has to be used sparingly. Inspire of the very wide terms in which this jurisdiction is conferred there are certain recognised limitations on this power. The jurisdiction is not appellate and it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence. The High Court, therefore, leaves the party aggrived to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by passed. To these, there are certain exceptions. One such exception is where action is being taken under an invalid law, or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Art. 226 were not allowed to be invoked.”

26. Thus, I am of the view that although ordinarily a suit would be a bar in terms of Article 226(3), as the same would come within the words “other remedy” there may be extraordinary circumstances or cases e.g where action is taken under an invalid law, or arbitrarily and even without the sanction of law, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by the present Article 226 is not allowed to be invoked. That apart, in case an inferior Court of Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which shocks the superior Courts' sense, of fair play, the power to issue the prerogative writ of Certiorari to correct the error of the Court or Tribunal of first instance, even in an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was had to it, confirmed what ex facie was a nullity. In my view, the words “other remedy” in Article 226(3) would ordinarily include suits but there are exceptional circumstances as aforementioned and in terms of the determinations by the Supreme Court, when the High Court inspite of the car, may entertain an application. The language of the present Article 226 has not thus created a total ban or bar in respect of the High Court's power of interference in appropriate cases. But in cases which do not come or fall under the aforementioned categories or in cases where there is other remedy available in the concerned statute or the rules and regulations framed thereunder, the ban imposed is absolute. I am also of the view that in all pending cases when the point of abatement, in the manner as has been taken in this case is raised, the Courts should and will have to determine the same first.

27. Let the main Rule be placed in the list for hearing now, for necessary determination in terms of the order which I have made.

28. Order accordingly.