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2005 DIGILAW 249 (HP)

DURGA RAM v. STATE OF H. P.

2005-07-21

A.K.GOEL, K.C.SOOD

body2005
JUDGMENT K C Sood, J. This petition under Article 226/227 of the Constitution of India is directed against the judgment of the State Administrative Tribunal dated July 14, 1997 and subsequent order of the Tribunal in Contempt Petition No. 48 of 1997 dated October 1, 1997 with a prayer that the respondents be directed to re-engage the petitioner. 2. In order to appreciate the controversy, relevant facts may be noticed: 3. The petitioner approached the State Administrative Tribunal with a grievance that he was appointed as Air Compressor Operator on November 1, 1992, in the Department of Irrigation and Public Health, and was posted in Kaza Sub Division (Lahaul & Spiti District). He worked continuously as such in the Department of Irrigation and Public Health from November 1, 1992 to December 31, 1996. His service were terminated with effect from January 1, 1997 without any notice to him. He further alleges that his junior was retained who was engaged as Air Compressor Operator in May, 1995. 4. The action of the respondents was assailed before the State Administrative Tribunal on the grounds of arbitrariness, being illegal and violative of the provisions of Section 25-F and G of the Industrial Disputes Act, 1947 ("I.D. Act" for short). 5. The Tribunal found that the applicant had worked intermittently as Operator. He worked for the first time in August, 1994, thereafter worked from April 1995 till December, 1995 and lastly from May, 1996 to October, 1996. The Tribunal noticed that the petitioners failed to join duties from January 1997 onwards and accordingly dismissed his Original Application. However, the Tribunal observed that dismissal of his application would not be an impediment in his en-engagement on daily wage basis by the respondents. 6. The petitioner was not re-engaged. He filed a contempt petition saying that he was not being re-engaged despite the directions of the Tribunal. The Tribunal noticed that no direction was given to the respondents for the re-engagement of the petitioner and therefore, no contempt was made out. The contempt petition as dismissed. 7. It is in this background that the petitioner approached this Court for setting aside the judgment of the Tribunal. 8. The Tribunal noticed that no direction was given to the respondents for the re-engagement of the petitioner and therefore, no contempt was made out. The contempt petition as dismissed. 7. It is in this background that the petitioner approached this Court for setting aside the judgment of the Tribunal. 8. While hearing the petitioner we pointed out to the learned counsel for the petitioner that the Tribunal did not have the jurisdiction to adjudicate the dispute raised by the petitioner which admittedly is an "industrial dispute" and therefore, his petition before the Tribunal was mis-laid and appropriate remedy for the petitioner is to approach the "Industrial Tribunal" constituted under the I.D. Act 9. It is the own case of the petitioner that his services were terminated in violation to Section 25-F of the I.D. Act, which is an "industrial dispute" and the jurisdiction to decide the such dispute in our view rests with the "industrial Tribunal" alone. 10. A Division Bench of this Court in H.P. Agro Industries Corporation Ltd. and others v- Raj Kumar and another, 2002 (3) Shim L.C. 423. After noticing the provisions of the I.D. Act including the Section 28 of the Act, the provisions of Administrative Tribunal Act and relying upon Premier Automobile Ltd. V. Kamlakar Shanta Ram Wadke and others 1976) 1 SCC 496 and Rajasthan State Transport Corporation and another v. Krishna Kant and others, (1995) 5 SCC 75 held that the Administrative Tribunal constituted and established under the Administrative Tribunals Act, 1985 has no jurisdiction to entertain, deal with and decide an application for the protection of or enforcement of rights created or liability imposed under the I.D. Act or any other law for the time being in force. The only remedy available to the aggrieved party is to approach the Industrial Tribunal/Labour Court or an authority constituted and or established under the relevant Statute. Writing for the Division Bench, Thakker C. J. as My Lord then was, observed: "63. Keeping in mind the relevant provisions of for ID Act as well as other corresponding laws for the time being in force and the A T Act, there is no doubt in our minds that the ambit and scope as also object of both the Acts are distinct, separate and different. Keeping in mind the relevant provisions of for ID Act as well as other corresponding laws for the time being in force and the A T Act, there is no doubt in our minds that the ambit and scope as also object of both the Acts are distinct, separate and different. Independent forums, therefore, have been constituted by the competent legislature and it is obligatory on the aggrieved person to approach an appropriate forum constituted and established under the relevant law. It is also clear to us that in Premier Automobiles and Rajasthan State Road Transport Corporation, the Supreme Court laid down in no uncertain terms that where rights or obligations are created by the ID Act, the only remedy is to approach the forum created by Automobiles and Rajasthan State Road Transport Corporation, the Supreme Court laid down in no uncertain terms that where rights or obligations are created by the ID Act, the only remedy is to approach the forum created by the Act. The argument that the ratio in those cases would not apply to Administrate Tribunals inasmuch as the Supreme Court had held that Civil Court had no jurisdiction and thus jurisdiction of only Civil Court is ousted did not impress us. The Supreme Court had so held as the question had arisen regarding the jurisdiction of Industrial Tribunal/Labour Court vis-a-vis Civil Court. That, however, does not mean that the law laid down in those cases has limited application and it would not apply to Administrative Tribunals or Authorities other than Civil Court. Reading the judgment in the way in which it is sought to be suggested by the learned counsel for the respondents would make the principles formulated by the apex Court nugatory, otiose and ineffective. The words "only remedy" used by their Lordships of the Supreme Court will also become ineffective and redundant, which is not permissible. In our considered view, proper reading of the judgments of the Supreme Court and ratio down therein would mean and only mean that where the rights and obligations are created by the ID Act, an aggrieved person has to approach a forum created by that Act alone. Any other interpretation, in -our opinion, would be inconsistent with and contrary to the law laid down in those cases. We are, therefore, unable to read the decisions of the Supreme Court in any other manner. 64. Any other interpretation, in -our opinion, would be inconsistent with and contrary to the law laid down in those cases. We are, therefore, unable to read the decisions of the Supreme Court in any other manner. 64. Moreover, the legal position has also been substantially changed after the decision in L. Chandra Kumar. Between Sampath Kumar and L. Chandra Kumar, Administrative Tribunal was held to be an "effective, alternative institutional mechanism for judicial review" and a real substitute of all Courts including the High Court de jure as well as de facto. That is not the position now. Sampath Kumar was overruled by L. Chandra Kumar and is no longer good law. As per settled legal position, an Administrative Tribunal like any other Tribunal constituted under the AT Act has retained its character as a Tribunal like any other Tribunal constituted under a statute and has to exercise its jurisdiction under the Act. It has no plenary or unlimited jurisdiction under the Act. It has no plenary or unlimited jurisdiction. It cannot travel beyond the four corners of the At Act. In our opinion, therefore, it has no jurisdiction to enquire into the grievances made by an aggrieved party in the matters covered by the ID Act or any other corresponding law for the time being in force. 65. For the foregoing reasons, in our opinion, the Administrative Tribunal constituted and established under the Administrative Tribunals, Act 1985 has no jurisdiction to entertain, deal with and decide an application for the protection or enforcement of rights created or liabilities imposed under the Industrial; Disputes Act, 1947 or any other law for the time being in force and the only remedy available to the aggrieved party is to approach Industrial Tribunal/Labour Court or an Authority constituted and/or established under the relevant statute. The orders passed by the Administrative Tribunal either under the provisions of the ID Act or any other law for the time being in force must necessarily be held to be null and void and without jurisdiction." (emphasis given) 11. In view of this settled position of law, the application of the petitioner before the Tribunal was indeed mislaid and consequent judgment of the Administrative Tribunal being without jurisdiction nullity. The petitioner indeed can approach the appropriate Forum for the redressal of his grievances. 12. Faced with the situation. Mr. In view of this settled position of law, the application of the petitioner before the Tribunal was indeed mislaid and consequent judgment of the Administrative Tribunal being without jurisdiction nullity. The petitioner indeed can approach the appropriate Forum for the redressal of his grievances. 12. Faced with the situation. Mr. Paul strenuously urges that this Court is not bereft of the powers to pass orders for the re-engagement of the petitioner as the petitioner served the Department for more than 240 days in the preceding year of the termination of his services and should treat this petition as original petition under Article 226 of the Constitution. 13. The contention of Mr. Paul does not impress us. It is admitted position before us that the grievance of the petitioner raises industrial dispute within the meaning of ID Act. It is also not in dispute that the rights and obligations sought to be enforced by the petitioner in this petition are disputes under I.D. Act and the remedy available to the petitioner is to approach the Industrial Tribunal/Labour Court for adjudication of his claim and this Court will not entertain this petition more so, when it raises disputed question of face, i.e, whether in fact, the petitioner worked for 240 days in the preceding years of his employment or whether he abandoned the job or was terminated. We are fortified in our view by the recent judgment of the Supreme Court in U.P. State Bridge Corporation Ltd. and others v. U.P. Rajya Setu Nigam S. Karamchari Sangh 2005 AIR SCW 3149. The following observations of their Lordships are apposite; "11. We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent-Union of all. The dispute was an Industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well as UPIDA, 1947. The rights and obligations sought to be enforced by the respondent-Union in the writ petition are those created by the Industrial Disputes Act. In the Premier Automobiles Ltd. v. Kemlekar Shantaram Wadke, 1876 (1) SCC 496, it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act." 14. In the Premier Automobiles Ltd. v. Kemlekar Shantaram Wadke, 1876 (1) SCC 496, it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act." 14. In para 14 of the judgment, their Lordships observed: "Finally, it is an industrial practice that the Court exercising extra-ordinary jurisdiction under Article 226 should have refused to do so where there are disputed questions of fact. In the present case, the nature of the employment of the workmen was in dispute." 15. For the aforesaid reasons, the present writ petition, which raises industrial dispute and also disputed question of fact cannot be entertained under extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The only remedy available to the petitioner is to approach the appropriate forum under the I.D. Act for the redressal of his grievance in accordance with law. 16. The petition is dismissed. 17. No costs. CMP No. 288 of 1998. 18. Interim order dated 8.4.1998 shall stand vacated. CMP No. 1527 of 2000. 19. lnfructuous.