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Mohammad Owais v. State Of U.P.& Others - WRIT - A No. 50324 of 1999 [2007] RD-AH 8673 (8 May 2007)


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Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

Case of the petitioners is that in compliance of letter of appointment dated 2.1.1988, he joined as Peon in the office of Additional Waqf Commissioner, Shahjahanpur on 4.1.1988.  His appointment was on daily wage basis. Thereafter, the petitioner, moved several representations for regularization of his services as Peon.  When representations of petitioner and similarly situate daily wagers were rejected, one Sri Islamuddin filed Civil Misc. Writ No. 29614 of 1999 before this Court in which the following interim order was passed by this Court on  22.7.1999:-

Hon'ble O.P. Garg, J

" Heard Sri Siddhartha, learned counsel for the petitioner.

The petitioner is a class IV employee. The representation of the petitioner for regularization has been rejected. The matter requires scrutiny.

 Let a counter affidavit be filed within six weeks. List thereafter.

            In the meantime, the petitioner who is working as Class IV employee shall be paid minimum scale of pay of class IV in view of the decision of the Apex Court reported in (1998)9 Supreme Court Cases-595 State of Punjab and others Vs. Devendra and others with requisite allowances.

Dt. 22.7.99                                    Sd/- O.P. Garg, J."

Special Appeal No. 622 of 1999 filed by the State Government against the aforesaid interim order has been dismissed by Hon'ble the Apex Court vide judgment and order dated 6.10.1999. In pursuance of the aforesaid interim order, it is claimed that Sri Islamuddin has filed representation dated 13.10.1999, which is still pending.

The petitioner, in the present writ petition has prayed that respondent no. 1 be directed to create a post of Peon and regularize the services of the petitioner and for a direction to pay the difference of salary between the daily wger and regular scale of pay of the post of Peon to the petitioner from the date of his initial appointment.

So far as regularization of their service is concerned, no such relief can be granted in the writ jurisdiction in view of decision of Hon'ble Apex Court in State of Punjab and another V. Sardara Singh 1998 (9) SCC-709  holding that  relief of regularization in service cannot be granted by High Court in exercise of extraordinary powers under Article 226 of the Constitution.  

The other relief to pay the difference of salary between the daily wger and regular scale of pay of the post of Peon to the petitioner from the date of his initial appointment can also not be granted in writ jurisdiction as it requires resolution of the controversy on the basis of oral and documentary evidence, appraisal of which is not possible in the writ jurisdiction.

The petitioner is a daily wager in the office of Survey Commissioner, Waqf.  If he has any grievance regarding 'equal pay for equal work' or regularization of his services, he has an alternate remedy before the U.P. Public Services Tribunal or the Labour Court. 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  the adjudicating  authorities created under the labour laws which forum is created with a specific object to deal with such matters requiring findings of facts.  

In U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S. Karmchari Sangh -(2004)4 SCC-268=2005 AIR SCW-3129, Hon'ble the Apex Court has held that :-

".............Doubtless the issue of alternative remedy should be raised and decided at the earliest oportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurer.  Nevertheless, even when there has been such a delay where the issue raised 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 the case remain 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 correct refused to entertain the writ petition for such relief."

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 U.P. Public Services Tribuanl or the Labour Court or 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 alternate remedy.   No order as to costs.

Dated 8.5.2007



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