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2002 DIGILAW 1555 (ALL)

DHEER SINGH v. DIOS MEERUT

2002-10-25

RAKESH TIWARI

body2002
RAKESH TIWARI, J. Heard the learned Counsel for the parties and perused the records. 2. By means of the present writ petition, the petitioner has challenged the order dated 10-8-1992, Annexure-VII to the writ petition, by which D. I. O. S. , Meerut has refused to approve the appointment of the petitioner on the post of Chaukidar at Maharana Pratap Inter College, Mawana and has refused to pay salary of the petitioner. 3. It has been submitted that regarding Class-IV employee the right to appoint vests with the Principal of the College and the D. I. O. S. has power to approve to the appointment and pay salary unless the appointment is made in excess of the sanctioned strength. 4. It has further been submitted that D. I. O. S. , Meerut in compliance of provisions of employment of dependents of employees Dying in Harness Rules, directed the Principal of Maharana Pratap Inter College vide letter dated 8-8-1991 to appoint Dinesh Kumar son of late Ram Nath, who was working as music teacher. The District Inspector of Schools, Meerut had informed the Principal that a vacancy was created on the death of Sri Ram Nath, who died during his service period, hence there is a provision to appoint the dependent of Late Ram Nath and it is not possible to approve the appointment of the petitioner. 5. No counter-affidavit has been filed in the writ petition. 6. The petitioner is not a Government employee as he is an employee of a recognised college managed by a private Committee of Management. Hence, the petitioner is a workman within the meaning of Section 2 (z) of the U. P. Industrial Disputes Act, 1947. He has raised disputed questions of facts in the present writ petition, which cannot be adjudicated except by adducing oral and documentary evidence. The question for approval to the appointment of the petitioner falls within the realms of the labour Court which provides for adjudication in respect of approval of a workman including payment of salary to the post of Chaukidar. This Court cannot exercise its powers under Article 226 of the Constitution to adjudicate the disputed questions of facts. In these circumstances, it would be proper to relegate the petitioner to the alternative and efficacious remedy available to him before the labour Court. 7. This Court cannot exercise its powers under Article 226 of the Constitution to adjudicate the disputed questions of facts. In these circumstances, it would be proper to relegate the petitioner to the alternative and efficacious remedy available to him before the labour Court. 7. In Chandrama Singh v. Managing Director, U. P. Co-operative Union Lucknow and others, 1991 UPLBEC 898, the Full Bench of this Court has held in paras 9 and 13 as under : "9. Having regard to the above noticed decisions of the Honble 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 inefficiacious, the petitioner has to be relegated to the alternative 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 Honble Supreme Court 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. " 8. In the case of Scooters India and others v. Vijay E. V. Elder, 1998 SCC (L-S) 1611, the Honble Supreme Court in para 2 of the judgment has held : ". . . . . . . . . The petitioner must furnish material facts and particulars to sustain such a plea. " 8. In the case of Scooters India and others v. Vijay E. V. Elder, 1998 SCC (L-S) 1611, the Honble Supreme Court in para 2 of the judgment has held : ". . . . . . . . . there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial law are available to the workman. " 9. The petitioner has not pleaded and given cogent reasons before this Court to establish that alternative remedy before the labour Court is inadequate and inefficacious, as such writ cannot be entertained only on the ground that the writ petition is pending for about 8 years. Entertaining a writ petition does not mean that it has to be allowed in all circumstances. The decisions of the apex Court are binding on all Courts under Article 141 of the Constitution and this Court will not allow its extraordinary jurisdiction under Article 226 of the Constitution to be invoked in aforesaid circumstances particularly when the disputed questions of fact require appreciation of oral and documentary evidence for establishment of the legal rights of the respective parties. No extraordinary circumstances have been shown by the petitioner for permitting him to skip over and frog leap, over the alternate and efficacious remedy provided under the U. P. Industrial Disputes Act,1947 and Rules framed thereunder. The aforesaid Acts and Rules framed thereunder are adequate for settlement of any Industrial Dispute under the first, second and third schedule. The Act and Rules are complete Code for settlement and adjudication of disputes and provide a forum for arriving at findings of fact by taking the into consideration the evidence, oral and documentary adduced before it. 10. The jurisdiction of High Courts under Article 226 of the Constitution cannot be permitted to be diluted on the ground of pendency of the writ petition for quite a period of time and the High Court may exercise its powers sparingly in rare cases. 10. The jurisdiction of High Courts under Article 226 of the Constitution cannot be permitted to be diluted on the ground of pendency of the writ petition for quite a period of time and the High Court may exercise its powers sparingly in rare cases. The Counsels not only must inform their clients about availability of alternative remedy but further plead why that remedy is not efficacious and the rare circumstances in which the jurisdiction of this Court under Article 226 of the Constitution is being invoked without first availing the alternate remedy. 11. In view of the above position of law the writ petition is dismissed on the ground of alternative remedy. It is, however, directed that if the petitioner raises an industrial dispute before the concerned Regional Conciliation Officer by 6th Feb. 2003, the said authority will try to amicably settle the dispute. In case no settlement is arrived at, the matter shall be immediately referred to by the competent authority to the labour Court or Industrial Tribunal for adjudication. The reference so made, shall be decided by the labour Court in the manner prescribed and time limits as provided in Rule 12 of the U. P. Industrial Rules, 1957 for filing written statements, rejoinders documents etc. If necessary, the proceedings may be held on day to day basis under Rule 12 (4) of the Rules and the case may be decided preferably with a period of six months and not later from the date of receipt of reference. 12. With the aforesaid observations the writ petition is dismissed. No order as to costs. Petition dismissed. .