The Lucknow Bench of the Allahabad High Court has dismissed an appeal challenging an order passed by the Single Judge whereby the preliminary objection raised on behalf of the appellant (Dr Ram Manohar Lohia Institute of Medical Sciences, Lucknow) regarding maintainability/ entertainability of the petition has been overruled and the appellant-Institute has been required to file its counter affidavit to the prayer for grant of interim relief made by the respondent no 1-petitioner in the petition.
The bench of Justices Devendra Kumar Upadhyaya and Om Prakash Shukla passed this order while hearing a Criminal Appeal filed by Dr Ram Manohar Lohia Institute Of Medical Sciences, Lko Through Director and Others.
Counsel for the respondent no 1- petitioner has argued that the special appeal is not maintainable for the reason that the order under appeal does not decide any issue; rather by the said order the Single Judge has only entertained the petition overruling the objection of the appellant-Institute that against the order under challenge in the petition, the respondent no 1-petitioner has got an alternative remedy under section 42 of Dr Ram Manohar Lohia Institute of Medical Sciences Act, 2015 before the Visitor, as such writ petition ought not to have been entertained by the Single Judge.
Thus, the submission against the maintainability of this special appeal is that once the Single Judge has decided to entertain the writ petition overruling the objection of there being an alternative remedy, such discretion need not be interfered with by the Court in this special appeal.
Replying to the aforesaid submission made by the counsel representing the respondent no1-petitioner regarding maintainability of the intra-court appeal, Chaturvedi, Senior Advocate has strenuously argued that in the wake of availability of statutory alternative remedy under section 42 of the Act, 2015, which is efficacious too, the Single Judge has erred in law in maintaining the petition.
In his submission, he has urged that the writ petition is not maintainable in view of the aforesaid and it ought to have been dismissed relegating the respondent no 1-petitioner to the remedy under section 42 of the Act, 2015.
The Institute was initially started as a Centre of Sanjay Gandhi Post Graduate Institute of Medical Sciences to make available super-speciality medical care.
It was initially registered under the Societies Registration Act, 1860 and has been functioning as an autonomous Institution since the year 2006. The State Government, however, decided to provide for conferring on the said Institute status of a University so as to ensure that Institute functions more efficiently as a Teaching and Research Centre to meet the requirement of Higher Education and Research in Medical, Para-Medical and Allied Health Service.
Accordingly the State Legislature enacted the Act, 2015 which inter alia provided for establishing of the institute on the pattern of All India Institute of Medical Sciences, New Delhi.
As per section 5 of the Act, 2015 the Institute consists of various members which include the Governor of Uttar Pradesh who is its Visitor (ex-officio) and the Chief Secretary of the Government of Uttar Pradesh, who is its President (ex-officio). Section 10 of the Act, 2015 provides that the Visitor, the President, the Vice-President, the Director, the Dean of the Institute, the Finance Officer and such other officers as may be required by the Regulation, are the officers of the Institute. Section 11 of the said Act provides that the Governor of Uttar Pradesh shall be the Visitor of the Institute.
Sub-section 6 of section 11 provides that subject to the provisions of section 42, the Visitor may, by an order in writing, annul any proceeding of the Institute if the same is not found in conformity with the Act or the Rules or the Regulations made under the Act.
The Court noted that,
One of the grounds taken to challenge the order of dismissal dated 22.02.2023 is that during the course of enquiry, though the respondent no 1-petitioner had categorically requested that certain witnesses be produced for cross-examination, however, the said prayer was denied to her.
In this regard we may state that while submitting her reply to the charge-sheet dated 04.02.2022 vide her letter dated 22.02.2022 the respondent no 1-petitioner had clearly indicated therein that in case the enquiry officer did not agree with the explanation/reply submitted by her to the charge-sheet she intended to cross-examine five persons which included the members of the Scrutiny Committee which had initially scrutinized the application form submitted by the respondent no 1-petitioner and also two Professors in the department of Obstetrics & Gynaecology, one in the State Medical College at Gorakhpur and the other at All India Institute of Medical Sciences and also two members of the Selection Committee.
We may also note that while submitting her comments to the enquiry report the respondent no 1-petitioner had again mentioned that she had desired an oral enquiry and to cross-examine five persons while submitting her reply to the charge-sheet and hence it was obligatory on the the part of enquiry officer to have fixed a date for recording such oral evidence after calling the witnesses.
We also notice that despite the aforesaid request in categorical terms for cross-examining the witnesses, there is nothing on record before us which can establish that the respondent no1-petitioner was permitted to cross-examine the said persons.
We may also note that the witnesses whom the respondent no1-petitioner intended to cross-examine during the course of enquiry cannot be said to be irrelevant in the context of the subject matter of enquiry for the reason that the members of the Scrutiny Committee who had initially examined the application form submitted by the respondent no1-petitioner and further that the members of the Selection Committee which comprised of experts of the field also did not find anything wrong with the application form submitted by the respondent no1- petitioner.
The Court opined that there existed a rationale for the prayer made by the respondent no1- petitioner to cross-examine certain witnesses during the course of enquiry. Denial of cross-examination of witnesses or denial of summoning the witnesses as per the prayer made by the respondent no1-petitioner during the course of enquiry without any justifiable reason, would certainly amount to violation of principles of natural justice. Neither the enquiry report nor the order dated 22.02.2023 dismissing the respondent no1-petitioner from service contains any recital that her prayer for cross examining was denied by giving reasons.
“In the case, the respondent No 1-petitioner has not taken recourse to Section 42 of the Act 2015, rather has challenged the order of the President as communicated to her by the Director of the Institute by means of the order dated 22.02.2023. Thus, it cannot be said that the order of dismissal from service could not be challenged by filing writ petition under Article 226 of the Constitution of India unless it is given finality by the Visitor of the Institute.
Even otherwise it is not a case where the petition filed by the respondent No1-petitioner can be said to be not maintainable. As already pointed out above, there lies a difference between entertainability and maintainability of a writ petition under Article 226 of Constitution of India. 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 the Court for valid reasons decides to exercise its discretion, in our opinion, such an order cannot be faulted with.
For the reasons aforesaid, we do not find any good ground to interfere with the order passed by the Single Judge dated 13.04.2023 in Writ, which is under appeal herein”, the Court observed while dismissing the appeal.