RANVEER DAYARAMJI NEWARE Vs UNION OF INDIA,THROUGH...

by consent of learned counsel for the parties.

2. The petitioner has approached this Court praying for a direction to the respondents to make payment of regular pension, commutation pension and other retirement benefits to the petitioner.

3. The facts, in brief, giving rise to this petition are as under :

The petitioner came to be appointed as a Sorter in respondent no. 3 in the year 1979, admittedly against a post meant for open category and subsequently all the promotions which were granted to the petitioner were also against the post reserved for open category. Though the petitioner had not been appointed against a post reserved for Scheduled Tribe, however the documents show that he belongs to Scheduled Tribe. Therefore, on 25.11.2011 a Charge-Sheet came to be issued to the petitioner calling upon him to furnish the documents pertaining to his caste claim. Prior to five days of petitioner's retirement, an enquiry was constituted against him on the ground that though the petitioner was asked to submit documents in support of his caste claim, it was not done and, as such why he should not be proceeded with the Departmental Enquiry for having committed the misconduct.

The petitioner furnished his explanation submitting therein that he never claimed to be Scheduled Tribe and he was appointed against a post reserved for open category. The Enquiry Officer submitted his report and found that the petitioner was never granted any advantage of status of

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belonging to Scheduled Tribe, nor he was appointed against a post reserved for Scheduled Tribe; and as such recommended that no case was made out against any of the charge levelled against the petitioner.

4. Respondent no. 3, who is the Disciplinary Authority, disagreed with the finding of the Enquiry Officer on the ground that the charges against the petitioner were not against initial appointment and other promotions but on receipt of the complaint that he belongs to Scheduled Tribe and his claim was not verified. Since the petitioner has not been paid regular pensionary benefits, he has approached this Court.

5. Dr. R.S. Sundaram with all the force at his command has vehemently opposed the petition on the following grounds -

(i) that the petitioner has approached this Court without exhausting alternative remedy available to him, of having recourse to the Central Administrative Tribunal;

(ii) the matter is now referred to the Hon'ble President of India, who will be the final authority to take a decision and, as such, this Court should not exercise extra ordinary jurisdiction;

(iii) the petitioner is not charged with the charge of taking undue advantage, but for committing misconduct of not supplying the necessary documents, though called for.. The learned counsel placed reliance on two judgments reported in - (i) 2009(2) ALL MR 649 -Subhashchandra s/o Tulshiram Sahu v. Dy. General Manager, Syndicate Bank, Mumbai & anr.; and (ii) 2011(1) ALL MR 145 - Dr.Sadique Hussain Sheikh Azim Qureshi v. Divisional Caste Certificate Scrutiny committee, Nagpur

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& ors.

6. No doubt, as submitted by Dr. R.S. Sundaram, this Court should be slow in interfering in the jurisdiction under Article 226 of the Constitution of India, if a party has alternative remedy and has not exhausted the same. However, the rule of non exercise of jurisdiction under Article 226 is not a hard and a fast rule but a rule of self restraint. Even if a party has an alternate remedy, this Court is not precluded from exercising its extra ordinary jurisdiction, if the facts of the case so warrant. In the present case, the petitioner was to retire on superannuation on 30.11.2011. Six days prior to his superannuation, he has been furnished with a charge-sheet and that too, in our opinion, with lame charges. In our considered view, this is not a fit case wherein this Court should refuse to exercise its jurisdiction under Article 226 and ask the petitioner to go through the rigour of alternative remedy. In that view of the matter, we are not inclined to accept the first contention, as advanced by Dr. R.S. Sundaram.

7. Insofar as the second submission is concerned, no doubt, we will be slow in interfering the jurisdiction under Article 226 of the Constitution of India, when the matter is pending before the competent authority, and that too before the President of India. However, if the facts are so glaring and if prima facie this Court finds that the proceedings against the party are not likely to result in any fruitful purpose, but would result only in unwarranted harassment to a hapeless employee aged 60 plus and after having gainfully served, that too with an unblemished record with the respondents for a period of 32 years, four months and five days, we find that this is an

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exceptional case wherein the submission by the learned counsel for the respondents, though appears to be legally sound, would be required to be rejected on the ground of equity, good conscience and fair play.

8. A litigant and that too Union of India is expected to be a role model. While dealing with its citizens and more particularly with its employees, it is expected that the conduct of the respondents should not be of such a nature which rather than protecting the hapeless employee only amounts to victimising such an employee, and in such a case, this Court should not estop itself from exercising its inherent powers.

9. When a competent officer upon a record placed before him comes to a specific conclusion that the petitioner was neither appointed against a post reserved for Scheduled Tribe or has never in his career claimed any promotional benefits on the basis of his belonging to Scheduled Tribe, merely because some documents show him to belong to Scheduled Tribe, this cannot be a ground, that too at the stage of retirement, to victimize the petitioner on the basis of some complaints made at the behest of his rivals in the department. Though the Enquiry Officer specifically comes to a conclusion that this is a case wherein the petitioner is found not to have taken any benefit on the basis of claim of belonging to Scheduled Tribe, the respondent no. 3 mechanically finds that the charges were not against the initial appointment and other promotions, but on receipt of complaint that though he claims to be belonging to Scheduled Tribe, he has not got verified the caste claim from the Caste Scrutiny Committee. 9-A. We find that respondent no. 3 has acted in a hyper

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technical manner and not in accordance with good conscience, justice and fair play.

10. In the result, as an exceptional case, the present petition deserves to be allowed. The respondents are directed to give an end to the enquiry against the petitioner and make payment of all the benefits to him from the date of his superannuation, i.e. 30.11.2011. Needless to say that the petitioner would be entitled to receive interest @ 6% per annum.

JUDGE JUDGE

/TA/

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