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Ram Rathi Ram v. State Of U.P. & Others - WRIT - A No. 34784 of 1996 [2007] RD-AH 8936 (10 May 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).


Court no. 26

                    Civil Misc. Writ Petition No. 34784 of 1996

           Ram Rathi            versus       State of U.P. 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 certiorari for quashing the termination order dated 20.9.1996 passed by respondent no.1, Secretary Gram Vikas Vibhag, U.P. Lucknow.

The petitioner was appointed on the post of Clerk in October, 1961 and was promoted as Senior Clerk on 12.12.89. He was placed under suspension vide order dated 30.11.85 in contemplation of enquiry.  In the enquiry he was found guilty and punishment order dated 27.6.91 was passed with holding three increments and the salary of suspension period of the petitioner.

Aggrieved by the aforesaid order dated 27.6.91 the petitioner filed appeal before the Commissioner, Varanasi Division, Varanasi which was dismissed vide order dated 31.12.93. Against which the petitioner filed revision before the State Government, which is said to be pending.

 The counsel for the respondents submits that the petitioner has an alternative and efficacious remedy for redressal of his grievance before the U.P. State Public Services Tribunal, which is not denied by the counsel for the petitioner.

             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."

In U.P. State Brassware Corporation Ltd. & another Vs Uday Narain Pandey, (2006) 1 S.C.C. 479, it has been held in paragraph 38: -

    "Order VII Rule 7 of the Code of Civil Procedure confers power upon the court to mould relief in a given situation. The provisions of the Code of Civil Procedure are applicable to the proceedings under the Industrial Disputes Act. Section 11-A of the Industrial Disputes Act empowers the Labour Court, the Tribunal and the National Tribunal to give appropriate relief in case of discharge or dismissal of workmen."  

            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.

I am of the opinion that the relief prayed for by the petitioner can be granted only 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.

For the aforesaid reasons this petition is dismissed on the ground of availability of alternative remedy. In case the petitioner moves an application before the U.P. Public Services Tribunal within six weeks from the date of production of a certified copy of this order, the Tribunal shall decide the application of the petitioner on merit without going into the question of limitation as the writ petition of the petitioner was pending in this Court since 1996 within a period of one year thereafter.

No order as to costs.

Dated: 10.5.2007



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