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Synopsis

The Allahabad High Court recently dismissed the Special Appeal/intra-court appeal filed by Ram Manohar Lohia Institute of Medical Sciences, Lucknow against the single judge bench's order whereby its objection raised against maintainability/entertainability of the writ petition filed by a sacked Assitant Professor had been overruled. 

Referring to a catena of judgments of the Supreme Court, a division bench of Justices Om Prakash Shukla and DK Upadhyaya said, "It is settled that the availability of alternative remedy provided by the relevant statute is not an absolute bar to entertain a writ petition under Article 226; rather the high court has discretion whether to entertain the writ petition or not bearing in mind the facts of the case being brought before the court".

"One of the self-imposed restrictions on entertaining a writ petition is that this court should not normally entertain the writ petition where effective and efficacious alternative remedy is available, however, simultaneously it should also be borne in mind that 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," said the division bench.

The bench said that there lies a difference between entertainability and maintainability of a writ petition under Article 226.

"If a writ petition for any lawful reason is not maintainable, such a situation has to be viewed differently. However, in case of objection regarding entertainability of a petition under Article 226 of the Constitution of India, if this Court for valid reasons decides to exercise its discretion, in our opinion, such an order cannot be faulted with," the bench underscored. 

The institute filed the appeal before the division bench alleging that there was already a statutory alternative remedy available under Section 42 of Dr. Ram Manohar Lohia Institute of Medical Sciences Act, 2015 (the Act) to the petitioners (respondents in the present matter) before the single judge bench, still, the judge decided to entertain the writ petition overruling institute's objection.

The single judge bench had entertained the plea filed by one Dr. Charu Mahajan And Others, against dismissal from the service at the institute. 

Section 42 of the Act of 2015 provides that if an issue arises whether any person has been elected or appointed or is entitled to be a member of the Institute,or whether any decision of the Institute, Governing Body or any authority or body of the Institute is in conformity with the Act or the rules or regulations, the matter shall be referred to the Visitor and the decision of the Visitor in that regard shall be final.

However, in the present matter, against their dismissal, the petitioner moved the court directly invoking its writ jurisdiction under Article 226 which was opposed by the institute. 

Adjudicating upon the issue, the division bench said, "...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".

Further, regarding the present matter, court observed that in the writ petition before the single judge bench, one of the grounds taken to challenge the order of dismissal was that during the course of enquiry at the institute, though the respondent-petitioner had categorically requested that certain witnesses be produced for cross-examination, however, the said prayer was denied.

"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 violation of principles of natural justice," court opined in light of the facts of the matter. 

Therefore, court held that the case as set up by the respondent-petitioner fell within one of the exceptions as carved out by the Supreme Court in the judgments in the case of Whirlpool Corporation, M/s Radha Krishan Industries and Godrej Sara Lee Ltd.

Accordingly, court dismissed the special appeal. 

Case Title: Dr. Ram Manohar Lohia Institute Of Medical Sciences, Lko v. Dr. Charu Mahajan And Others