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Aashish Srivastava v. State Of U.P. And Others - WRIT - A No. 68890 of 2005 [2005] RD-AH 5090 (28 October 2005)


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Court no. 7

Civil Misc. Writ Petition No. 68890 of 2005

Aashish Srivastava                   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 Assistant Accountant in the respondent Bank i.e. U.P. Sahakari Gram Vikas Bank, Ltd. His services were terminated vide order dated 1.9.2005 after enquiry.

This writ petition has been filed for quashing the impugned termination order dated 1.9.2005 passed by respondent no. 2.

The counsel for the respondents  has raised  a preliminary objection  that the petitioner has an efficacious and alternative remedy against the impugned order dated 1.9.2005 before the Labour Court which is not denied by the counsel for the petitioner.

The claim of the petitioner relates to enforcement of rights and obligation under the service regulations enforceable under the Industrial Disputes Act and as such the only remedy available to the petitioner is to get the matter decided by adjudication under the Industrial Disputes Act.

The apex court in Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke (1976) 1 SCC-496 has laid down the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, in paras 23 and 24 of the judgment which are as under:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

24. We may, however, in relation to Principle no.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No.3 stated above."

In Rajasthan State Road Transport Corporation and another Vs. Krishna Kant and others, 1995 (V) SC-75, the apex court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947. The question whether disputes involving observance, recognition or enforcement of rights and obligation created under the Industrial Disputes Act or its sister enactments such as Payment of Wages Act, Payment of Gratuity Act, Factories Act, Workmen Compensation Act etc. including Industrial Employment (Standing Orders) Act, which do not provide any special ad judicatory forums are  ''industrial dispute' within the meaning of Section 2 (k) or Section 2-A of the Industrial Disputes Act or that such disputes treated as industrial disputes they shall not  be adjudicated by any other forum except created by Industrial Disputes Act, i.e.,  they shall be adjudicated only by forums created under Industrial Disputes Act.

In Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549, it has been held that where alternate remedy is available, the writ would not be maintainable.

In L.L. Sudhakar Reddy Vs. State of Andhra Pradesh (2001) 6 SCC-634, the apex court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.

Similarly in State of Bihar Vs. Jain Plastics & Chemical Ltd. (2002) 1 SCC-216, the apex court has held that existence of alternative remedy would be a good ground for not entertaining the petition.

In Secretary, Minor Irrigation & Rural Engineering Services, U.P. & Others Vs Sangoo Ram Arya & another, (2002) 5 SCC 521, the apex court has held as under: -

"11. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. WP No. 47130 of 2000 etc. on 1-2-2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Services Tribunal (the Tribunal), and had permitted the writ petitioner therein to approach the Tribunal and directed the Tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the Tribunal to decide the matter expeditiously.

12. Mr. Sunil Gupta, learned counsel appearing for the petitioner contended that the remedy before the Tribunal under the U.P. Public Services (Tribunals) Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the Tribunal. In the said view of the matter, the appeals are dismissed. No costs."

The law has been well entrenched by the Hon'ble Supreme Court in 2005(6) SCC-728 Hindustan Steel Works Construction Ltd. and another Vs. Hindustan Steel Works Construction Ltd. Employees Union that 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 statutory remedy is provided or the matter could be adjudicated by Labour Court or Tribunal having exclusive jurisdiction.

The matter requires adjudication on the basis of oral and documentary evidence, which can be adduced only before the Labour Court/Industrial Tribunal. Alternative remedy is absolute bar in case where questions of facts are to be decided by adjudication.

For these reasons, this Court is not inclined to interfere in the matters.

In the circumstances, the petition is dismissed on the ground of availability of alternative remedy before the Labour Court  under the U.P. Industrial Disputes Act,1947 for redressal of his grievance, which he has not exhausted. In case he raises an industrial dispute before the concerned Regional Conciliation Officer/Deputy Labour Commissioner within a month from today, the said authority will try to amicably settle the dispute. In case no settlement is arrived at, the competent authority shall immediately refer the matter to the Labour Court or Industrial Tribunal for adjudication, as the case may be. The reference so made, shall be decided by the Labour Court within a period of one year thereafter.

Dated 28.10.2005



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