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Ram Babu v. State Of U.P. & Others - WRIT - A No. 6644 of 1996 [2007] RD-AH 7127 (18 April 2007)


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   Court no. 26                                                        

                Civil Misc. Writ Petition No. 6644 of 1996

        Shri Ram Babu                      versus       State of U.P. and others


Hon'ble Rakesh Tiwari,J.

 No argument has been advanced by Sri Abhishek Tripathi, Advocate holding brief of Mrs. Sadhna Upadhyaya, counsel for the petitioner on merits of the case. Heard counsel for the respondents and perused the record.

The petitioner has prayed for issuance of a writ, order or direction in the nature of mandamus directing respondent nos. 2 and 3 to regularize the services of the petitioner on the post of peon and pay salary to him month to month in accordance with law.

   Brief facts of the case are that the petitioner is working on the post of peon on daily wage basis since the year 1988 continuously without any break in the office of Additional Commissioner (Waqf) U.P. Agra.

   The averment in the writ petition is that Waqf has been made permanent body and  all the employees of the respondents department have been regularized and that as the petitioner has worked continuously more than 8 years without break on the post of peon as daily wage, hence he is lawfully entitled to be regularized on the same post on which he is working.  

     The petitioner is a peon and comes within the definition of workman under the U.P. Industrial Disputes Act, 1947.

    The apex Court in State of Punjab and others Vs. Sardara Singh, (1998) SCC-709 has held that the High Court cannot direct regularization of the services of the petitioner.  Engagement of petitioner was only on daily wage basis, which in itself does not confer any legal right for regularization of his services. It is not feasible to decide question of fact in the writ jurisdiction merely on the basis of exchange of affidavits.

There is nothing on record to show that there is any sanctioned post of peon by the State Government and it has to be regularized in accordance with the Recruitment Rules.

In view of the admitted position that the petitioner is a daily wage class IV employee and in view of law laid down in the case of State of Punjab (supra) the services of the petitioner can not be directed to be regularized by the High Court.

The petitioner has also an alternate and efficacious remedy of approaching the Labour Court under the U.P. Industrial Disputes Act, 1947 as the disputed questions of facts, whether the petitioner is liable to be regularized on the post of peon or not in the department and whether there is any sanctioned post of peon on which he can be regularized are required to be decided on the basis of oral and documentary evidence by the Labour Court.

    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 Chandrama Singh Vs. Managing Director U.P. Co-operative Union, Lucknow and others, (1991) 1 U.P.L.B.E.C.(2) 898 the full Bench of this Court has held that where alternate remedy is available, the writ would not be maintainable.

     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 recording findings of facts by taking oral and documentary evidence which is not feasible for the High Court in writ jurisdiction under Article 226.

     For the aforesaid reasons this petition is dismissed on the ground of availability of alternative remedy. No order as to costs.

Dated 18.4.2007








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