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Shyam Dhar v. Ziladhikari Sant Ravi Dass Nagar And Others - WRIT - A No. 13096 of 1999  RD-AH 8948 (10 May 2007)
Civil Misc. Writ Petition No. 13096 of 1999
Sri Shyam Dhar versus District Magistrate, Sant Ravidas Nagar
Hon'ble Rakesh Tiwari, J.
Heard counsel for the parties and perused the record.
This Court on 28.11.2006 had passed the following order:-
" The petitioner who was an applicant for the post of Assistant Cashier has challenged the selection of respondent no.3 on the post in question on various grounds. One of the submissions is that the examination was not fairly conducted and there has been interpolation in the application form of respondent no.3 and he has been wrongly awarded two marks under the sports category. His submission is that the certificate produced by him in support of his claim is forged and fabricated document. The said certificate was issued by the College under some influence and just to favour him. It appears that some enquiry was conducted by the Chief Development Officer in this regard. On receiving the complaint the Chief Development Officer has submitted a report to the District Magistrate. Copy of the said report has been filed as Annexure-2 to the rejoinder affidavit. In the supplementary counter affidavit filed on behalf of respondent nos. 1 and 2 it has been stated in para 7 that the said report given by the Chief Development Officer is not correct and the said report is biased in favour of the petitioner. The further averment is that the District Magistrate by order dated 5th May, 1999 directed the enquiry to be conducted by Additional District Magistrate (Administration) and he stayed the enquiry which was being conducted by the Chief Development Officer who in spite of the order of the District Magistrate submitted a report. The Additional District Magistrate (Admn) did not proceed further in the matter as in the mean time present writ petition was filed in the High Court. The matter was reported to the Commissioner by the letter dated 12th June, 1999. In view of the stand taken by the respondents in the supplementary counter affidavit that the report of the Chief Development Officer cannot be relied upon as he submitted the report after the order passed by the District Magistrate, staying his hands in the matter, it is desirable that the enquiry be conducted by the Higher Officer, may be the District Magistrate or the Additional District Magistrate (Admn.) as the Commissioner of the Division may deem fit and proper in the circumstances of the case.
The Commissioner of the Division is, therefore, directed to pass necessary orders in this regard and the enquiry be completed by 31st December, 2006. Let the matter be listed on 8.1.2007 with the enquiry report.
Learned counsel for the petitioner submitted that the District Magistrate on 21.5.1999 directed respondent no.3 not to work on the post in question. However, the said order was revoked subsequently. Looking to the facts and circumstances of the case and specially his relationship with respondent no.2, it is desirable that respondent no.3 should not be permitted to work on the post in question till the disposal of the writ petition. A copy of this order may be communicated by the learned Standing counsel to the concerned officer. A copy of this order may also be made available to the learned Standing counsel free of cost.
The record of the case was summoned by the Court and was produced by the learned Standing counsel. The learned Standing Counsel may return the record to the office concerned."
The petitioner is a 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."
It is the consistent view of Hon'ble Supreme Court that wherever an alternate remedy is available it should not be bye-passed and the petitioner has to approach this Court after availing alternate remedy. Reference in this regard may be made to Hindustan Steel Works Construction Ltd. and another Vs. Hindustan Steels Works Construction Ltd., Employees Union- (2005) 6 SCC 725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another, (2005) 107 F.LR.729.
In view of the aforesaid order dated 28.11.2006 the Commissioner of the Division has passed necessary orders and submitted his report dated 2.1.2007 from which it appears that the report has been given in favour of respondent no.3 rejecting the claim of the petitioner. In the circumstances, no case for interference is made out. If the petitioner is aggrieved by the report submitted against him, he being a workman under Section 2(z) of the U.P. Industrial Disputes Act, 1947 raise an industrial dispute before the Labour Court.
For the reasons stated above, the petition is dismissed on the ground of alternative remedy.
No order as to costs.
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