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1996 DIGILAW 80 (GUJ)

V. S. Ohiliya v. Gujarat Electricity Board

1996-02-07

S.K.KESHOTE

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S. K. KESHOTE, J. ( 1 ) HEARD the learned counsel for the petitioner. ( 2 ) THE petitioner has filed this Writ petition in which he made prayer that the respondent authorities be directed to forthwith employ and absorb the petitioner in the regular services as Boiler Attendant in Porbandar Thermal Power Station or in Penanthro thermal Power Station or in Sikka Thermal Power Station and/or anywhere in Gujarat. It has further been prayed that the respondent authorities may be directed to absorb the petitioner in the regular services as Helper in the wiremen trade or in any other trade in any part of Gujarat in the office of the respondents. The absorption-cum-appointment is claimed with retrospective effect. The brief facts of the case are as follows: ( 3 ) THE petitioner was engaged as Apprentice under the Apprenticeship Act, 1961 in the trade of Boiler Attendant in the office of the respondents for a period of 3 years commencing from 23. 9. 80 till 22. 9. 83. The petitioner not only completed the three years apprenticeship period as a trainee but also qualified himself in the wireman examination held on 28th November, 1982. The petitioner complains that after completion of the apprenticeship period, he should have been given the regular appointment. The select list of the apprentices has been prepared in which the name of the petitioner was at Sr. No. 72, but he was not given regular appointment. The petitioner claims that as per the guidelines of the respondents, he acquired a right of regular appointment after the completion of apprenticeship period, but the respondents have acted arbitrarily in the matter of giving regular appointment to the petitioner. The petitioner has made further complaint that many persons who are juniors as apprentice have been given regular appointment by the respondents, but the same treatment has not been given to the petitioner. ( 4 ) I do not propose to go into all the aforesaid grievances made by the petitioner as this writ petition deserves to be dismissed only on the ground that the petitioner cannot be allowed to avail of two parallel remedies simultaneously for the same cause of action. Where the petitioiner has parallel remedies, it is his option to choose either of the remedies, but once he has opted for or chosen one remedy, he has no right to shift to another remedy. Where the petitioiner has parallel remedies, it is his option to choose either of the remedies, but once he has opted for or chosen one remedy, he has no right to shift to another remedy. It is a case where the petitioner has made an attempt to abuse the process of this Court. The petitioner may be a person out of employment or a poor person, but on these grounds he cannot be given licence to abuse the process of this Court. The extra ordinary jurisdiction under Article 226 of the Constitution is meant for the persons who act bonafide and not in a manner in which the petitioner in the present case has proceeded. It is true that the petitioner has not concealed the fact of available alternative remedy. But it is equally correct that the petitioner has voluntarily chosen the remedy of civil suit and that civil suit is still pending before the Civil Judge (SD), Junagadh. In para 18 at page 12, [wrongly mentioned as para 17], the petitioner has stated that in the facts and circumstances stated in the preceding paragraphs, he was constrained to move the Honble civil Court (SD) of Junagadh for appropriate redressal and relief by instituting a Civil suit viz. Regular Civil Suit No. 17 of 1990 in the month of January 1990. It has further been stated that the said civil suit is yet not disposed of and that the Ex. 5 application preferred in the same for appropriate relief is also pending without any relief whatsoever in favour of the petitioner. The petitioner further averred that the respondents have sought time from time to time from the said Court for filing reply and for receiving instructions etc. The petitioner further stated that under one or the other pretext, the said suit is standstill and is not moving and in the meanwhile since the Civil Court has not granted an interim relief, the respondents have continued to make fresh appointments by violating petitioners fundamental rights from time to time even during the pendency of the aforesaid suit and as a result the said suit has remained almost infructuous so far as the petitioners grievance is to be redressed. Lastly, in the said para of the petition, the petitioner stated that under these circumstances, the petitioner is constrained to move this court under the extra ordinary jurisdiction under Article 226 for appropriate redressal and for appropriate interim relief prayed for in the writ petition. ( 5 ) THIS writ petition has been filed by the petitioner before this Court on 18th August, 1993 and till 21st January, 1995, it was not admitted. On 21st January, 1995, this petition was dismissed for non-prosecution as none was present for the petitioner. The civil suit, reference of which has been made above has not been withdrawn by the pettioner. What prompted the petitioner to file this petition before this Court, as it transpires from the averments made in the petition is that he could not get interim relief from the civil court and consequently no fruitful progress in the said suit has been made. The petitioner shifted to the the remedy under Article 226 of the Constitution as he apprehended that the civil suit may not be disposed of within a reasonable time. This Court cannot ignore the fact that petitions of the year 1982, 1983 and onwards are pending for hearing in this court. When this court itself is not in a position to dispose of the matter as expeditiously as expected by the litigants and then how the action of the petitioner to shift to this remedy under Article 226 of the Constitution from the remedy of civil suit can be justified. Even the petitioner. s Counsel is not able to get this writ petition heard for admission for about more than one and a half years. Leaving apart this aspect of the matter petitioner cannot be permitted to choose different remedy at different times. Once he has voluntarily gone to the civil court forum, he has to continue the proceedings to its logical conclusion. In case the litigant is permitted to shift the remedies after availing a remedy before a particular forum to another forum, then there will be no end to the litigations at either of the forums. The petitioner will take chance to get some favourable order before a particular forum and if he fails to get the same, he will shift to another forum and again he may go to third forum if it is available. The petitioner will take chance to get some favourable order before a particular forum and if he fails to get the same, he will shift to another forum and again he may go to third forum if it is available. Then, there will be a chain and the litigations will not attain finality. Merely because the Civil Court has declined to grant temporary interim relief in favour of the petitioner as prayed for, it cannot be said to be a sufficient ground for changing the remedy of civil suit to the one under Article 226 of the Constitution of India. It is a case where the petitioner has availed of two remedies simultaneously in respect of the same cause of action in two different forums which was clearly an abuse of process of the Court. It is a settled law that a litigant cannot avail of parallel remedies simultaneously. Reference, in this connection, may be made to a decisions of the Supreme Court in the case of Jai singh vs. Union of India, reported in AIR 1977 SC 898 and the Madras High Court in the case of Chemech Engineers Pvt. Ltd vs. Director of Industries and Commerce, reported in air 1994 Madras 14. ( 6 ) IN the result, this writ petition fails and is therefore dismissed. .