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SHYAM DUBEY versus PRIYOJNA NIDESHAK ZILA VIKAS ABHIKARAN PANPUR ANGARAND OTHER

High Court of Judicature at Allahabad

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Shyam Dubey v. Priyojna Nideshak Zila Vikas Abhikaran Panpur Angarand Other - WRIT - A No. 10298 of 1991 [2007] RD-AH 6464 (9 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard Sri B.N. Singh, counsel for the petitioner, Standing Counsel for the respondents and perused the record.

Case of the petitioner is that he was appointed as Driver for a period of two months vide letter of appointment dated 14.12.1987.  His tenure was extended from time to time and he was transferred from office of District Development Corporation to the office of Chief Development Officer, Kanpur vide office order in June 1990, a copy of which is appended as Annexure VI to the writ petition.

The grievance of the petitioner is that he continued to work as Driver till 24.3.1991 but when he reported for duty after availing leave for 25th and  26th March, 1991, he was not allowed to do so.  By means of this writ petition, the petitioner has prayed for a writ in the nature of mandamus commanding the respondents to regularize the services of the petitioner as driver.        

Admittedly, the petitioner was working on daily wage basis.  Prayer for regularization of services cannot be granted by High Court in exercise of extraordinary powers under Article 226 of the Constitution in view of decision of Hon'ble Apex Court in State of Punjab and another V. Sardara Singh 1998 (9) SCC-709.

The questions of facts involved in this writ petition require adjudication of facts by appraisal of documentary and oral evidence. It is not feasible for the High Court to take oral and documentary evidence under Article 226 of the Constitution and adjudicate by stepping into the shoes of a Labour Court/Industrial Tribunal. These forums have been created with specific object to deal with such matters requiring findings of facts.  The question as to whether removal of petitioner from service is erroneous or not, is mixed question of fact and law which can be decided only after consideration of oral and documentary evidence whicih may be led by the parties before the Labour Court or the Industrial Tribunal, as the case may be.        

It is the consistent view of Hon'ble the Supreme Court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union-(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another (2005)107 FLR-729 that in case alternate and efficacious remedy is available it should not be bye-passed and writ petition should not be normally entertained by the High        Court under Article 226 of the Constitution of India and the petitioner has to approach this Court after availing alternate remedy.

The petitioner has an alternate and efficacious remedy before the Labour Court/Industrial Tribunal, as held in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.

For the reasons stated above, I am not inclined to interfere in the matter in exercise of powers under Article 226 of the Constitution as it requires findings of facts to be recorded on the basis of of oral and documentary evidence.

Accordingly, the writ petition is dismissed on the ground of availability of alternative remedy.   No order as to costs.

Dated 9.4.2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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