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Bhartiya Khadya Nigam Mazdoor Sangh & Another v. Senior Regional Manager, Food Corp. Of India & 3 Others - SPECIAL APPEAL DEFECTIVE No. 413 of 2007 [2007] RD-AH 9203 (15 May 2007)


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Court No.32

Special Appeal No.413 of 2007

Bhartiya Khadya Nigam Mazdoor

Sangh & another


Senior Regional manager,

Food Corporation of India & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This special appeal arises from the judgment of the Hon'ble Single Judge dated 8.3.2002 dismissing the appellant's Civil Misc. Writ Petition No.39598 of 1993 on the ground that since the question involved requires scrutiny and appreciation of evidence, therefore, the same cannot be entertained in the writ jurisdiction and the petitioner-appellant has a remedy under the Industrial Disputes Act/Labour Laws before the appropriate forum.

Learned counsel appearing for the appellants vehemently contended that the main question involved in the writ petition was that the wage continuously paid to the petitioner-appellant for the year 1983-93 under the incentive scheme by the circular issued from the Zonal Office of the Food Corporation of India (hereinafter referred to as the FCI) can not be recovered after the long lapse of time without affording any opportunity of hearing, but the Hon'ble Single Judge without considering this aspect of the matter dismissed the writ petition simply on the ground of alternative remedy. In support of the contention he placed reliance on the judgment of the Hon'ble Apex Court in the case of Indian Oil Corporation v. Its Workmen (Civil Appeal No.377 of 1970 decided on 24th July, 1975), judgment of the Andhra Pradesh High Court in the case of D. Balaih & others v. The Secretary, Indian Detonators Ltd., 1976 LAB I.C. 729 and the judgment of this Court in the case of Chandra Sen Jain v. District Judge, Mainpuri & others and argued that the writ petition having remain pending for more than 12 years the appellant cannot be relegated to the Labour Court.

We do not find force in the submission for the reason that the dispute pertains to the payment of incentive to the workmen, who are the members of the appellant's Union.  The details and evidence are to be led for proper adjudication as to whether any workmen has been paid in terms of the incentive scheme, which resulted in over payment. The respondents have filed supplementary affidavit in this appeal stating that only the workers of Naini, Allahabad i.e. the appellant's Union have been paid much excess in comparison to other departmental workers working in different districts.  

Shri A.K. Gupta, learned counsel appearing for the FCI submitted that due to wrong calculation the workers of Naini were paid the incentive in excess, for instance if the incentive is Rs.1.28 per bag at Chandari, Kanpur, the workers at Naini were paid @ Rs.3.07 per bag as a result of which more than crores of rupees have been paid in excess in complete derogation of the incentive scheme.  He further submitted that when this excess payment was detected at Naini Depot, a Committee consisting of Shri Hari Shanker, A.G. II, Shri Shyam bahadur, Ancillary Labour, representative of Labour and Shri N.C. Tripathi, Assistant Manager Accounts was constituted and was entrusted the work to examine the procedure adopted at Chandari, Kanpur and Naini, Allahabad and sort out the discrepancy in the payment of incentive.  Pursuant thereto the Committee having examined the matter submitted its report on 22.6.1993.  It is also stated by Shri A.K. Gupta that on 27.7.1993 the representative of the workers agreed upon that whenever decision is taken by the Head Quarter, New Delhi as well as Regional Office it will be acceptable to all, consequently, an undertaking in writing to this effect was given on 27.7.1993 by the appellant's Secretary.

Be that as it may, the Hon'ble Single Judge found that the facts involved in the writ petition being disputed require scrutiny and appreciation of evidence and thus, it is not desirable for this Court to appreciate the evidence as a Court of first instance in the process of judicial review under Article 226 of the Constitution of India in view of availability of the alternative remedy under the Labour Laws before the appropriate forum.  

The labour adjudication forum under the Industrial Dispute Act has sufficient and effective power to grant complete relief to the petitioner-appellant as it is also empowered to admit oral and documentary evidence whereas this Court in exercise of the writ jurisdiction normally does not enter into the disputed question of fact and thus, the Hon'ble Single Judge has not committed any fault in relegating the appellant to avail the alternative remedy.

The Hon'ble Apex Court in the case of U.P. State Bridge Corporation Ltd. & others v. U.P. Rajya Setu Nigam S. Karmchari Sangh, JT 2004 (2) SC 440 did not accept the reasons given by the High Court for entertaining the writ petition on the ground of delay and held as under: -

"The only reason given by the High Court to finally dispose of the issues in its writ jurisdiction which appears to be sustainable, is the factor of delay, on the part of the High Court in disposing of the dispute.  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 demurer.  Nevertheless even when there has been such a delay where the issue raised requires the solution 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 been arisen in this 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's case had correctly refused to entertain the writ petition for such relief."

Thus, the contention that since the writ petition remain pending for years together, it would not be appropriate to relegate the appellant to the alternative remedy, cannot be accepted in view of exposition of law, as has been laid down by the Hon'ble Apex Court.  A Full Bench of this Court also while considering the doctrine of exhaustion of an alternative remedy in the case of Chandrma Singh Vs. Managing Director, U.P. Sugar Corporation, 1991 (2) UPLBEC 898 in paras 9 and 13 of the judgment has observed as under: -

"9. Having regard to the above noticed decisions of the Hon'ble Supreme Court of India, it is ruled that where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redressal of the grievance by the petitioner......"

13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India, to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India." The petitioner must furnish material facts and particulars to sustain such a plea."

Thus, in view of the facts of the case and also in view of the exposition of law, we do not find any reason to differ with the view taken by the Hon'ble Single Judge.  It would, however, be open to the appellants to avail remedy in accordance with law before the appropriate forum.

The special appeal is, accordingly, dismissed.




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