Thulukanam vs Collector, Deputy Registrar (Public Distribution Scheme) and President, Vadamanipakkam Primary Agricultural Co-operative Bank

P.K. Misra, J.—Heard the learned counsels appearing for the parties.

In the present writ petition, the petitioner has prayed for issuance of writ of certiorarified mandamus to quash the impugned order in reference

No. Na.Ka. 4357/95 Public Distribution No. 2. dated 18.10.1997 issued by the second respondent, which has been intimated by the third

respondent as per the order dated 6.3.1998.

The brief facts are as follows :-

The petitioner was appointed as a salesman in Vadamanipakkam Co-operative Service Society. Subsequently the said Society was incorporated

as GC 2349 Vadamanipakkam Primary agricultural Co-operative Bank. The petitioner was working in Orathi Fair Price Shop, which comes

under the control of the third respondent. Subsequently, after conducting some inspection, it was found that rice has been sold at a price higher

than the one fixed by the Government. The second respondent by Ref. No. Na.Ka. 4357/95 dated 18.10.1997 directed to take disciplinary action

against the Special Officer and the Secretary for having advised the salesman (the present petitioner) to sell the rice at a higher price. He further

directed to suspend the salesman temporarily and recover double the amount of the sales, i.e., Rs. 82,080/-. As per the aforesaid direction, the

present third respondent issued letter dated 6.3.1998 placing the present petitioner under suspension with effect from 6.3.1998. This latter

communication, which is obviously based on the direction given by the second respondent, is being challenged.

It is not disputed that an interim order of stay was passed by this Court and subsequently, the interim stay has been made final. It is therefore not

disputed that the petitioner is continuing as such without being suspended.

Learned counsel for the petitioner has submitted that admittedly rice was sold at a higher price on the basis of the direction issued by the

Secretary of the Vadamanipakkam Primary Agricultural Co-operative Bank. This is apparent from the reply dated 4.2.1998, sent by the Secretary

addressed to the Deputy Registrar (Co-operative Societies), Maduranthagam. It is also apparent from the order issued by the present Respondent

No. 2, wherein in paragraph 2 it has been clearly indicated that disciplinary action may be taken against the Special Officer and the Secretary for

having ""advised the salesman to sell the rice for one Rupee more per Kilo instead of selling the rice for the price determined from 1-4-95 to 13-5-

95 by the Government."" In other words, the present petitioner was sought to be suspended for having followed the instructions issued by his

superior officer. The suspension order is passed only on the direction issued by the second respondent. In view of the admitted fact that action of

the present petitioner was based on the direction of the superior officer, the suspension order, so far as the petitioner is concerned, appears to be

arbitrary.

It is no doubt true that ordinarily an order of suspension passed in contemplation of the departmental proceedings should not be interfered with

by Court of law and more so while exercising jurisdiction under Article 226 of the Constitution of India. However, in the present case, apart from

the fact that such suspension order has remained stayed for all these years, in the face of the admitted fact that the alleged delinquency was on the

basis of the direction of the superior officer, it would be rather unjust either suspend or even to initiate any action against the present petitioner.

Moreover, in paragraph 3 of the impugned direction issued by the second respondent, a further direction has been issued for recovery of the

double the amount of the sales. It is rather surprising that even before a departmental proceeding has been started, penalty itself has been

suggested by the second respondent. In such view of the matter, the direction contained in paragraph 3 of the impugned direction dated

18.10.1997, issued by the second respondent to suspend the petitioner and to recover certain amount, cannot be sustained and liable to be

quashed.

Learned counsel for the respondents has submitted that the petitioner need not have rushed to the High Court against the order of suspension as

he could have filed an appeal against the impugned order and since alternative remedy is available, the writ petition should not be entertained.

Even though such a contention may prima facie appears to be attractive, in the facts and circumstances of the present case, such a submission

cannot be accepted. Ordinarily, when alternative remedy is available, the High Court should not entertain the matter under Article 226. However,

this rule is subject to certain well known exceptions. In the present case, as already pointed out, the order itself appears to be wholly arbitrary so

far as the petitioner is concerned. Moreover, the writ petition was filed in the year 1998 and has remained pending for more than six years and it

would be highly unjust to drive the petitioner to pursue his so called appellate remedy and directing the petitioner at this stage to pursue the

alternative remedy will encourage multiplicity of proceedings.

Having regard to all these aspects, the writ petition is allowed and the direction contained in paragraph 3 of the impugned direction dated

18.10.1997, issued by the second respondent, is quashed. However, it is made clear that quashing of such a direction would not stand in the way

of initiating any departmental proceeding against the petitioner for any other delinquency. There would be no order as to costs.