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Hukum Singh v. Principal, I.D.P.D.S. Mahavidyalaya & Others - WRIT - A No. 21839 of 1999 [2007] RD-AH 8017 (30 April 2007)


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Court no. 26

                  Civil Misc. Writ Petition No. 21839 Of 1999

Hukum Singh                  versus    Principal Ishwar Dayal Parsandi Devi

                                                      Snatotar Mahavidyalaya, Bulandshahr

                                                      and another.

Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

Brief facts of the case are that the petitioners was appointed as Watchman in Ishwar Dayal Parsandi Devi Degree College, Bulandshahr on 8.2.1979 by the Principal of the College.

 It is alleged by the petitioner that he fell seriously ill and he could not attend the college on 13th, 14th and 18th September, 1994. A show cause notice dated 19.9.94 was served on the petitioner to which he submitted reply that he could not attend the college due to illness and he will join the duty as soon as recovers from the illness. On 18.10.1994 the petitioner approached the Principal of the College with joining report who directed that the joining report be submitted to Dr. Sriniwas of Botany department, which was then submitted by the petitioner to Dr. Sri Niwas in Bontary department.

It is further alleged by the petitioner that on 20.10.1994 when he reached the college he was abused and manhandled by one Bundh Prakash and one more person at the instance of the Principal.  The petitioner lodged an FIR against the Principal at Chowki Nai Mandi, Bulandshahr on the same date i.e. 20.10.94 and also filed a complaint before the DIOS, Bulandshahr.

It is stated by the petitioner that when he received a letter dated 11.11.94 falsely alleging that he was not attending his duties he went to the college but the Principal again did not permit him to put his signatures on the Attendance Register, hence in the circumstances the petitioner approached the DIOS and other higher authorities of the Education Department in this regard but to no avail. Thus compelled by the circumstances the petitioner has come up in this petition with the following prayers.

1. To issue a writ of mandamus commanding the respondents not to stop the petitioner in performing his lawful duties of Watchman in the institution in question;

2. To issue a writ of mandamus commanding the respondents to decide the petitioner's representation;

3. To issue a writ of mandamus commanding the respondents to pay the salary of the petitioner for the post on which he has been appointed;

4. To issue any other writ, order or direction as this Hon'ble Court thinks fit under the circumstances of the case; and

5. To issue a writ in the nature of certiorari for quashing the termination of services of the petitioner dated 12.3.1999 passed by respondent no.1.

        During the pendency of the writ petition the services of the petitioner were terminated vide order dated 12.3.99.

The counsel for the respondents submits that the petitioner was negligent towards discharge of his duties and not only refused to obey the instructions/directions and orders of his Superiors but also absented himself from duty from time to time apart from absenting himself on 13.8.1991, 14.8.1991,15.4.1994, 23.4.1994, 2.5.1994,3.5.94, 13.9.94, 14.9.94, 18.9.94, 21.9.94 and 22.9.94. It is stated that the petitioner in reply to the show cause issued to him stated that he was mentally disturb on account of his family difficulties and that the alleged letter dated 20.12.1996 said to have been sent through registered post for joining his duties was never received by him.

He further submits that ultimately a charge sheet dated 15.9.1998 was issued against the petitioner, which he refused to receive the same; that the Principal vide order dated 20.10.1998 appointed an Inquiry Committee. The petitioner was directed by the Inquiry Committee by its letter dated 5.11.1998 to appear before it but the petitioner did not appear on 20.11.1998 as such a fresh notice dated 25.11.1998 was issued by the Inquiry Committee fixing 10.12.1998 with direction to the petitioner that in case the petitioner failed to appear, the enquiry against him shall proceed exparte. The petitioner again did not appear before the Inquiry Committee on the date fixed as such the Inquiry Committee submitted its report on the basis of which the services of the petitioner were terminated by the Principal of the College vide order dated 12.3.99.

The counsel for the respondents also submits that the petitioner has filed this writ petition concealing all the aforesaid facts regarding termination of his services and sought relief that he is not being allowed to perform his duty and that after filing the counter affidavit the petitioner along with rejoinder affidavit filed an amendment application seeking amendment in relief clause of the writ petition; that in view of the facts that the petitioner by amending his writ petition has admitted that his services have been terminated and in view of the fact that there is neither any fact alleged nor any ground taken to say that how the order of termination dated 12.3.99 is bad in law, the writ petition is liable to be dismissed.

   It is lastly submitted by the counsel for the respondents submits 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 petitioner.

The factual controversy whether the services of the petitioner were terminated legally or not or whether he absented himself from duty or not and whether the inquiry held against him was valid 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 merely 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 as it can also adjudicate question of fact after appreciation of evidence adduced before it and accordingly can mould the relief as required by the reference order.  

The petitioner is workman under the Industrial Disputes Act. He has an alternative and efficacious remedy under the Industrial Disputes Act.

In U.P. State Bridge Corporation Ltd. Vs. U.P.Rajya Setu Nigam S. Karmchari Sangh (2004) 4 SCC268= 2005 AIR SCW-3149 recently the apex Court has held that-

"17... Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurrer. Nevertheless, even when there has been such a delay where the issued raise requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen in this case remained unresolved. They must be resolved in a manner, which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correctly refused to entertain the writ petition for such relief."

           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.

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

No order as to costs.

Dated: 30.4.2007



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