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SMT. ANITA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Anita v. State Of U.P. And Others - WRIT - A No. 8846 of 2007 [2007] RD-AH 2785 (20 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court no. 1

          Civil Misc. Writ Petition No. 8846 Of 2007

                         Smt. Anita                  versus      State of U.P. and others

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition has been filed for issuance of a writ, order or direction in the nature of certiorari for quashing the impugned order dated 17.10.2006 passed by the Executive Officer, Nagar Palika Parishad, Baraut, Baghpat by which the services of the petitioner were terminated and for a direction to respondent no.3 to permit the petitioner to perform her duties as Sweeper in Nagar Palika Parishad, Baraut, Baghpat and pay her salary regularly month to month.

    The petitioner has been appointed as Safai Karmchari in Nagar Palika Baraut, Baghpat  since 3.10.2006 on temporary basis in place of her mother-in-law who died on 22.11.2005 during the service period.

  It is alleged by the petitioner that all of a sudden her services were terminated vide order 17.10.2006 passed by respondent no.3, hence this writ petition.

 The Standing Counsel submits that the petitioner has approached this Court without exhausting the alternative remedy available to her before the Labour Court.

          The question whether retrenchment/termination of services of the petitioner are legal and justified, requires finding of facts by an industrial adjudication on the basis of oral and documentary evidence upon a reference made to it under the Industrial Disputers Act, 1947.

The workman has an alternative and efficacious remedy under the Industrial Disputes Act. The apex court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union- (2005) 6 S.C.C. 725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another, (2005) 107 F.L.R. 729, has held that where the petitioner has an alternative and efficacious remedy the writ petition should not be entertained.

          In the case of Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke  (supra) the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by the apex court in paras 23 and 24 of the judgment which are as under:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

24. We may, however, in relation to Principle no.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No.3 stated above."

In Rajasthan State Road Transport Corporation and another Vs. Krishna Kant and others, 1995 (V) SC-75, the apex court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947.

In Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549 it has been held that where alternate remedy is available, the writ would not be maintainable.

In L.L. Sudhakar Reddy Vs. State of Andhra Pradesh (2001) 6 SCC-634, the apex court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.

Similarly in State of Bihar Vs. Jain Plastics & Chemical Ltd. (2002) 1 SCC-216, the apex court has held that existence of alternative remedy would be a good ground for not entertaining the petition.

In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Others Vs Sahngoo Ram Arya & another, (2002) 5 SCC 521, the apex court has held as under: -

"11. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. WP No. 47130 of 2000 etc. on 1-2-2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Services Tribunal (the Tribunal), and had permitted the writ petitioner therein to approach the Tribunal and directed the Tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the Tribunal to decide the matter expeditiously.

12. Mr. Sunil Gupta, learned counsel appearing for the petitioner contended that the remedy before the Tribunal under the U.P. Public Services (Tribunals) Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the Tribunal. In the said view of the matter, the appeals are dismissed. No costs."

The law is well entrenched that alternative remedy can not be bypassed and it has to be exhausted before approaching the High Court under Article 226 of the Constitution of India, particularly in cases where Labour Court or Tribunal having jurisdiction in the matter have been established. Alternative remedy is absolute bar in the cases where such question of facts is to be decided by adjudication.

I am of the opinion that the relief prayed for by the petitioner can be granted only after appreciation of oral and documentary evidence and after the finding of the competent industrial adjudicator on the question of termination of services of the petitioner. It is not feasible in writ jurisdiction under Article 226 of the Constitution to record findings of facts.

For these reasons the writ petition is dismissed on the ground of alternative remedy before Labour Court.  

No order as to costs.

Dated: 20.2.2007

CPP/


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