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Irfan Hasan v. State Of U.P. And Others - WRIT - A No. 72870 of 2005 [2005] RD-AH 6557 (29 November 2005)


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                                                                                                 Court no. 7

               Civil Misc. Writ Petition No. 72870 of 2005

Irfan Hasan           Versus          State of U.P. and others

Hon'ble Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The petitioner was appointed as Cane Supervisor in Ganna Beej Evam Vikas Nigam Limited and was posted at Sirsa Farm Bahari, Bareilly. The State Government decided to close down the Nigam on 5th July, 2003 and offered VRS to the employees. The petitioner moved a representation dated 7.2.2005 before the respondents for absorbing him in any other Government Corporation and for payment of his salary on the ground that he had discharged his duties in the Nigam for the period from 5th July, 2003 to 31st December, 2004 as he had accepted the VRS conditionally.

The contention of the counsel for the petitioner is that the salary of the petitioner for the period 5th July, 2003 to 31st December, 2005 may be directed to be paid.  The counsel for the petitioner has placed reliance upon judgment dated 13.1.2005 in C.M.W.P. No.300(S/S) of 2005, Irfan Hasan and another Vs. State of U.P. and others passed by the Lucknow Bench of this Court. The aforesaid writ petition was disposed of with a direction to the authority concerned to decide the representation of the petitioner and no law has been laid down in that case.

In my opinion, after the closure of the Nigam no salary is payable to an employee as the relationship of master and servant ceases to exist. An employee who has worked and his services have not been terminated after closure due to some reasons and work has been taken from him by the employer,  is entitled to the salary even after the closure of the Nigam.

The claim of the petitioner whether he has existing right to salary for the aforesaid period needs findings of fact after adjudication on the basis of oral and documentary evidence which is not feasible for this Court under Article 226 of the Constitution of India.

The petitioner has an efficacious and alternative remedy before the Labour Court of raising an industrial dispute which can not be by-passed. It is settled law that the petitioner has to approach this Court after availing alternative remedy as held by the  full Bench in (1991) 2 UPLBEC-898 Chandrma Singh Vs. Managing Director U.P. Co-operative Union, Lucknow and others.

This position has been reiterated and affirmed  by the Apex Court in Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke (1976) 1 SCC-496, Rajasthan State Road Transport Corporation and another Vs. Krishna Kant and others, 1995 (V) SC-75, Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549, 2005(6), SCC-728 Hindustan Steel Works Construction Ltd. and another Vs. Hindustan Steel Works Construction Ltd. Employees Union  and U.P. State Spinning Co. Ltd. Vs. R. S. Pandey  and another,  (2005)107 FLR-729.

For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy.

Dated 29.11.2005



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