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S.K. Mittal, Environmental Engineer v. State Of Haryana

Punjab & Haryana High Court
Aug 6, 1996
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Legal Opinion Summary — G.S. Singhvi, J.

Factual and Procedural Background

The petitioner joined service as Sub Divisional Engineer in the PWD (Public Health Department), Haryana in January 1973 and was promoted to Executive Engineer in May 1993. He was subsequently sent on deputation to the Haryana State Pollution Control Board ("the Board").

In 1995 the Board decided to fill various technical posts. The petitioner applied on 3 January 1996 to be absorbed by the Board. The Environment Department conveyed the Government's agreement, and the Chairman of the Board issued Annexure P.3 dated 16 January 1996 for absorption of the petitioner as Environmental Engineer.

The Public Health Department (PWD) did not agree to the absorption and issued Annexure P.4 dated 15 March 1996 recalling the petitioner from deputation and directing him to report to the Engineer-in-Chief; the petitioner was also placed under suspension by another order of the same date. On 6 May 1996 the Environment Department issued an order cancelling the repatriation and confirming absorption in the Board.

The PWD then issued Annexure P.7 dated 31 July 1996, declaring the Environment Department's order of 6/7 May 1996 null and void and directing the petitioner to report back to the PWD. Pursuant to Annexure P.7, the Chairman of the Board issued Annexure P.8 dated 1 August 1996 relieving the petitioner from the Board and directing him to join the parent department.

Soon after the March 1996 order, the petitioner filed a civil suit for declaration and consequential relief in the Court of Civil Judge (Senior Division), Faridabad, impleading the Board (through its Chairman) as defendant but not the State of Haryana or the PWD. The Board, in its written statement, objected to maintainability for non-joinder of the State and PWD and said the absorption issue was under Government consideration. The trial court on 19 April 1996 granted a temporary injunction restraining the Board from repatriating the petitioner and from taking action for past misconduct.

Subsequently the petitioner made a statement on 3 September 1996 and sought withdrawal of the suit; the learned Civil Judge (Senior Division) dismissed the suit on that basis. The petitioner then filed the present writ petition in the High Court seeking quashing of Annexures P.7 and P.8.

Legal Issues Presented

  1. Whether the High Court should exercise its writ jurisdiction under Article 226 to quash Annexures P.7 and P.8 notwithstanding that the petitioner had earlier approached the civil court and subsequently withdrawn the civil suit.
  2. Whether the impugned orders (Annexures P.7 and P.8) are contrary to principles of natural justice or otherwise without lawful power (as contended by the petitioner).

Arguments of the Parties

Petitioner's Arguments (as presented)

  • The impugned orders Annexures P.7 and P.8 are contrary to the principles of natural justice because no opportunity of hearing was afforded to the petitioner before his absorption by the Board was nullified.
  • The Government had no power to review the sanction given on 15 January 1996 for the petitioner's absorption in the Board.
  • After the order dated 15 March 1996, the dispute between PWD and the Environment Department had been settled and therefore the later orders (including the PWD order of 31 July 1996) had no justification.
  • The petitioner's withdrawal of the civil suit should not affect his right to seek remedy under Article 226 of the Constitution.

Respondent-Board's Arguments (as recorded)

  • In the written statement in the civil suit, the Board specifically objected to the maintainability of the suit on the ground of non-joinder of necessary parties, namely the State of Haryana and the PWD (Public Health Department).
  • The Board stated that the issue regarding absorption of the petitioner was not finally concluded and the matter was under consideration of the Government.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The High Court analyzed the scope and limits of its writ jurisdiction under Article 226. The court noted that Article 226, like Article 32, does not contain a constitutional limitation on High Court jurisdiction and, except where expressly barred by constitutional provisions, the power to issue writs is wide. However, the court explained that over the last forty years courts have evolved rules of self-imposed restraint and listed several grounds on which a High Court may decline to exercise writ jurisdiction:

  1. Delay and laches in filing the writ petition.
  2. Contumacious conduct of the petitioner (suppression of material facts, attempts to mislead the court, or abuse of process).
  3. Availability of an alternative remedy to the petitioner.
  4. Where the order under challenge was passed to rescind/rectify an earlier order that itself was passed in violation of law or the Constitution.
  5. Where the issue of writ would amount to directing the State or public authorities to violate constitutional or statutory provisions.

The court emphasized the sound public policy behind rule (3): where an equally efficacious alternative remedy exists (for example, appeal, revision, or civil suit), the High Court should ordinarily not exercise extraordinary writ jurisdiction. The court explained that litigants who elect to pursue remedies in civil courts (including applications for temporary injunction under Order 39 Rules 1 & 2 read with Section 151 CPC) cannot later withdraw those proceedings and seek the same relief in the High Court simply because civil proceedings appear slower or less convenient.

Applying these principles to the present facts, the court observed that the petitioner had earlier approached the civil court and obtained temporary injunction on 19 April 1996, then later withdrew the suit on 3 September 1996. The court concluded that having availed the civil remedy and subsequently withdrawn it, the petitioner could not now seek to challenge the same orders in the High Court under Article 226. The court also remarked that the learned Civil Judge (Senior Division), Faridabad had not applied his mind to the maintainability objection (non-joinder of State and PWD) when passing the injunction, and this fact reflected adversely on the propriety of that injunction order.

Holding and Implications

WRIT PETITION DISMISSED.

Direct effect:

  • The High Court declined to entertain the petition seeking quashing of Annexures P.7 and P.8 and dismissed the writ petition.
  • The petitioner remains free to pursue appropriate remedies before the competent civil court or other forums; the court expressly did not preclude the petitioner from approaching those fora.
  • If the petitioner makes an application for temporary injunction in the competent court, that court is directed to decide the application on merits without being influenced by observations made by the High Court in this order.

Broader implications (as articulated by the court):

  • The opinion reiterates and applies the doctrine that the High Court will ordinarily refrain from exercising writ jurisdiction where an equally efficacious alternative remedy (such as a civil suit) is available and has in fact been availed of by the petitioner.
  • The court identified several established grounds for refusing writ relief as part of the High Court's self-imposed restraints under Article 226.

Note: This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond that opinion.

Show all summary ...

G.S. Singhvi, J. - The petitioner has prayed for quashing Annexures P-7 and P-8 issued respectively by the Commissioner and Secretary to Government Haryana, PWD (Public Health Department) and the Chairman, Haryana State Pollution Control Board. 2. The petitioner joined service as Sub Divisional Engineer in the PWD (Public Health Department) of the State of Haryana in January 1973. He was promoted as Executive Engineer in May, 1993. Subsequently, he was sent on deputation to the Haryana State Pollution Control Board (for short 'the Board'). In the year 1995 the Board took a decision to fill the posts of Environmental Engineers, Assistant Environmental Engineers, Junior Environmental Engineers, Scientists Grade 'C' and Scientists Grade 'B'. With the object to get himself absorbed in the service of the Board, the petitioner made application on 3.1.1996 and on that basis, the Government conveyed its agreement to the proposal of the Board to absorb the petitioner in the service of the Board. This was conveyed to the Chairman of the Board by the Environment Department. On the very next day, the Chairman of the Board issued letter Annexure P.3 dated 16.1.1996 for absorption of the petitioner in the service of the Board as Environmental Engineer. However, Public Health Department of the Government of Haryana did not agree to the absorption of the petitioner. Therefore, Annexure P.4 dated 15.3.1996 was issued recalling the petitioner from deputation in the service of the Board and he was directed to report in the office of the Engineer-in-Chief, Haryana, PWD (Public Health Department). By another order of the same date the petitioner was placed under suspension. However, after about a month and half the Environment Department of the Government of Haryana issued order dated 6.5.1996 cancelling the repatriation of the petitioner to the Public Health Department. At the same time absorption of the petitioner in the service of the Board was confirmed. On its part, the PWD (Public Health Department) once again issued order Annexure P.7 dated 31.7.1996 and declared that the order dated 6/7.5.1996 passed by the Environment Department is null and void. On that premise the petitioner was directed to report back to the PWD (Public Health Department). Pursuant to this order, Chairman of the Board issued Annexure P.8 dated 1.8.1996 and relieved the petitioner from the service of the Board and directed him to join his parent Department, that is, PWD (Public Health Department). 3. It appears that soon after the passing of order dated 15.3.1996, the petitioner filed a civil suit for declaration and consequential relief in the Court of Civil Judge (Senior Division), Faridabad. In that suit, the petitioner impleaded the Haryana State Pollution Control Board, Chandigarh through its Chairman as a defendant. The State of Haryana or the Commissioner, PWD (Public Health Department) were not impleaded as defendants. It also appears from the papers which learned counsel for the petitioner produced before us during the course of arguments that in the written statement filed by it the respondent-Board took a specific objection to the maintainability of the suit on the ground of non-joinder of necessary parties, namely, the State of Haryana and PWD (Public Health Department). It was also stated in the reply that the issue regarding absorption of the petitioner was not final and the matter was under consideration of the Government. In reply to the injunction application filed on behalf of the respondent-Board, similar objections were raised by the respondent Board. On 19.4.1996, the learned Civil Judge (Senior Division) passed the order of temporary injunction restraining the Board from repatriating the petitioner to his parent department and also from taking any action against the petitioner for his past misconduct. Subsequently, the petitioner made a statement before the trial court on 3.9.1996 and prayed that the suit filed by him may be allowed to be withdrawn. On the basis of the statement made before it, the learned Civil Judge (Senior Division) dismissed the suit filed by the petitioner. 4. Shri Rajiv Atma Ram argued that the impugned orders Annexures P.7 and P.8 are contrary to the principles of natural justice because no opportunity of hearing was afforded to the petitioner before his absorption in the service of the respondent-Board was nullified. Learned counsel argued that the Government has no power to review the sanction given by it on 15.1.1996 for the absorption of the petitioner in the service of the Board. He further argued that after the issue of order dated 15.3.1996, the dispute between the PWD (Public Health Department) and Environment Department of the Government of Haryana had been settled and only thereafter, order dated 7.5.1996 was issued. According to him, after 7.5.1996, there could be no reason or justification to issue the impugned orders. Learned counsel submitted that withdrawal of the suit filed by the petitioner in the Court of Civil Judge (Senior Division), Faridabad should not affect the right of the petitioner of to seek remedy under Article 226. 5. We have thoughtfully considered the submissions of Shri Rajiv Atma Ram but are unable to agree with him that this Court should exercise jurisdiction under Article 226 even though the petitioner had earlier approached the Civil Court. 6. Powers conferred upon the High Courts to issue orders, directions or writs in the nature of mandamus, certiorari, prohibition, quo-warranto and habeas corpus can be exercised in appropriate cases for redressal of the grievance of a person aggrieved by State action or the action taken by the public authorities. This power can also be exercised to strike down the provisions of acts of legislature and subordinate legislation on the ground of violation of the provisions of the Constitution. Like Article 32, Article 226 does not contain any constitutional limitation on the exercise of jurisdiction by the High Courts and except in cases of expressed constitutional bar like the one contained in Articles 243-O, 243-ZG or in the laws enacted under articles 223-a or 223-b, the power to issue writs, orders or directions under Article 226 is unlimited. Technical rules of procedure which govern the exercise of discretion by the English Courts do not apply to the proceedings under Article 226 of the Constitution. Some High Courts have framed rules for regulating the procedure for filing writs in the concerned High Courts but no such rule can restrict the exercise of jurisdiction by the High Courts. However, during the last 40 years the Courts have evolved rules of self-imposed restraint. It is now well recognised that High Court can refuse to exercise jurisdiction under Article 226 of the Constitution on any of the following grounds :- (i) delay and laches in filing of the writ petition; (ii) contumacious conduct of the petitioner i.e. where the petitioner is found to have suppressed material facts from the Court or has made a statement with a view to mislead the Court or where an attempt has been made to abuse the process of the Court; (iii) availability of alternative remedy to the petitioner; (iv) where the order under challenge has been passed to rescind/rectify an earlier order which was passed in violation of the provisions of law or the Constitution; and (v) where the issue of writ would amount to directing the State or public authorities to violate the provisions of the Constitution or any other statutory provision. These are some of the factors which are to be kept in mind while exercising the writ jurisdiction. There may be other grounds on which the High Court may decline to exercise jurisdiction under Article 226 of the Constitution and it is not possible to lay down any strait-jacket formula for exercise of discretionary jurisdiction under Article 226. 7. The rule that the High Court will not ordinarily exercise jurisdiction under Article 226 where an equally efficacious alternative remedy is available to the petitioner is based on a sound principle of public policy, namely, that if the party approaching the High Court for issue of a writ can get similar relief by filing appeal, revision or civil suit, the extraordinary jurisdiction should not be exercised by the High Court. This also means that the High Court will not convert itself into a substitute of the civil courts and various statutory adjudicating bodies. In a given case a person aggrieved by the action of the State or its agencies may avail the remedy of civil suit thinking that he will be able to get effective relief from the competent civil court. Such person may also apply for grant of temporary injunction for protection of his rights. Once this course is adopted, it is not permissible for that person to give up the remedy of civil suit and approach the High Court merely because at a subsequent point of time he thinks that the proceedings in the civil court will last longer than the period which would be consumed in the decision of a writ filed for seeking similar relief. Once a person has chosen to seek remedy in a civil court, he cannot turn around subsequently and say that the remedy by way of civil suit is not effective. Often it is seen that civil suit is filed with an application for temporary injunctions because the party feels that it will be more convenient and easy to convince the civil court to pass an order of injunction than the High Court. However, when such party finds that the civil court is not inclined to grant injunction or the injunction application has been rejected, it moves an application for withdrawing the suit with the sole object of filing petition in the High Court on the same subject matter. At times an attempt is made to seek order of temporary injunction from the High Court after the civil court has declined similar relief. In some cases where order of temporary injunction is passed on an application filed along with the civil suit, the plaintiff-applicant feels that such an order will not be sustained by the appellate court and, therefore, he/she seeks withdrawal of the suit and then files writ in the High Court. This practice cannot in any manner be commended. Rather it deserves to be deprecated because it gives rise to an impression to the litigating public that if one cannot get temporary injunction from the civil court in an application filed under Order 39 Rules 1 and 2 read with Section 151 C.P.C then an attempt could be made to get such relief from the High Court in exercise of its jurisdiction under Article 226. In our opinion, this Court will not exercise its jurisdiction under Article 226 in a case where the petitioner had earlier approached the civil court for grant of relief on the same subject matter or any issue directly related with the subject matter of writ petition. We are also of the opinion that it would be a sound exercise of discretion not to entertain a petition filed by a person who had earlier approached the civil court by filing a civil suit and who withdrew the same at a subsequent point of time when it was felt that civil court will not grant relief by way of temporary injunction or that the injunction granted by the civil court may not subsist for long. 8. In this case, the petitioner had earlier approached the Court of Civil Judge (Senior Division), Faridabad and sought an injunction against his repatriation to the parent department. He successfully persuaded the learned trial court to pass an order of injunction. Subsequently, he withdrew the suit on an apparent realisation that the injunction order dated 19.4.1996 may prove to be short-lived. Having availed the remedy in the civil court thinking that he could get relief from such court, the petitioner cannot now be permitted to challenge the order dated 15.3.1996 and subsequent orders issued by Government regarding his repatriation to the parent department. 9. We do not want to make any such observation which may prejudice the right of the petitioner to seek relief from the civil court against the orders Annexures P-7 and P-8 but at the same time we cannot refrain from observing that the learned Civil Judge (Senior Division), Faridabad did not at all apply his mind to the record of the case while passing order of injunction dated 19.4.1996. The grant of injunction by the learned Civil Judge (Senior Division), Faridabad ignoring the fundamental objection raised by the respondent-Board to the maintainability of the suit, namely, that the State of Haryana and PWD (Public Health Department) were necessary parties to the suit cast serious reflection on the propriety of the order of injunction passed by the learned Civil Judge. For the reasons mentioned above, we decline to entertain the grievance of the petitioner against the orders Annexures P-7 and P-8 and dismiss the writ petition. This shall, however, not preclude the petitioner from availing the remedy before the appropriate civil court or any other forum. We also make it clear that if the petitioner makes an application for grant of temporary injunction, the competent court shall decide the same without being influenced by the observations made in this order.