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Nathu Lal Sharma v. Sanyukt Siksha Nideshak Tritiya Mandal Madhyamik Siksha - WRIT - A No. 28237 of 1999 [2007] RD-AH 7653 (25 April 2007)


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Court no. 26

                  Civil Misc. Writ Petition No. 28237 Of 1999

Nathu Lal                         versus         Sanyukta Siksha Nideshsak

                                                           Tritya Mandal,Madhyamik Siksha

                                                           Parishad, Bareilly and others

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

The petitioner has prayed for issuance of a writ, order or direction in the nature of mandamus commanding respondent no.3 to reinstate him in service with immediate effect.

The petitioner was appointed on the post of Clerk-cum-Library Assistant in the Respondent Institution in 1981.He submitted conditional resignation from service to the Manager of the Institution on 30.3.1992 as he was being harassed by the Principal of the College which was accepted by the Principal w.e.f. 30.6.1992. The petitioner was accordingly required to handover charge to one Sri Jeeshan Hasnain Jalisi.

It appears that thereafter the petitioner wrote a letter to the Manager of the Institution on 29.7.92 regarding releasing of his retiral benefits and dues. He also moved several representations in this regard before the authority concerned which have remained unactioned till date.

Subsequently when it came to the knowledge of the petitioner that his resignation was accepted without taking permission of respondent no.2, the D.I.O.S. Budaun, he sent a notice to respondent no.3 that he be reinstated in service and also represented to respondent no.2, the D.I.O.S. that he may be taken back in service as he was illegally terminated from service without prior approval of the DIOS. When no action was taken by the respondents, he has filed the present writ petition.

  The counsel for the respondents submits that the petitioner had himself submitted his resignation as such there is no question of taking of prior approval from the DIOS as his services in the circumstances cannot be said to be terminated by any overact of the Management. It is further stated that the petitioner has an alternative and efficacious remedy for redressal of his grievance before the Labour Court under the U.P. Industrial Disputes Act, 1947, which is not denied by the counsel for the petitioners.

The petitioner was working as a Clerk-cum-Library Assistant in the Institution in question. The factual controversy whether his resignation was accepted or not or whether he is entitled for reinstatement in service or not and whether his retiral dues and other dues have been paid or not, can only be adjudicated upon and decided by the Labour Court upon a reference after adjudication of the facts of the case by taking oral and documentary evidence, which is not feasible in writ jurisdiction under Article 226 of the Constitution by the High Court. The relief of reinstatement cannot be granted by the High Court mere on the basis of exchange of affidavits between the parties. The powers of the Labour Court are very wide and therefore, not only relief of reinstatement or any other relief can be granted by the Labour Court but it can also look into the nature of relationship of master and servant between the petitioners and the respondents and accordingly can mould the relief.  The petitioner is workman under the Industrial Disputes Act. He 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 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 an absolute bar in the cases where such question of facts are to be decided by adjudication.

For the aforesaid reasons this petition is dismissed on the ground of availability of alternative remedy.

No order as to costs.

Dated: 25.4.2007



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