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Rajasthan High Court · body

2005 DIGILAW 902 (RAJ)

Narendra Kumar Jain v. State of Raj.

2005-03-23

R.P.VYAS

body2005
Honble VYAS, J.–The instant petition has been by the petitioner with the prayer that retrenchment of the petitioner be declared null and void and the respondents ma be directed to reinstate the petitioner in service. (2). Brief facts of the case are that the petitioner was initially appointed on muster roll basis on the post of Beldar on 1.1.1984. The services of the petitioner were terminated on 31.12.1987 in violation of provisions of Section 25F, G and H of the Act of 1947. (3). Heard at admission stage. (4). The main controversy raised in this writ petition is that the petitioner has completed 240 days of service in one calendar year and services of the petitioner have been terminated without complying with the mandatory provisions of Section 25F, G and H of the Act of 1947. (5). There is no dispute on the point the petitioner has alternative remedy of raising industrial dispute under the provisions of Act of 1947 and the same has not been availed by the petitioner. (6). In my opinion where an alternative and equally efficacious remedy is available to a litigant, he should pursue that remedy and may not invoke special jurisdiction of the High Court to issue a prerogative writ. (7). The remedy under Article 226 of the Constitution of India being, in general, discretionary, the High Court may refuse to grant it where there exists an alternative remedy, equally efficient and adequate. (8). Article 226 of the Constitution of India is not intended to circumvent statutory procedures. Thus, where statutory remedies are available or a statutory tribunal has been set up, a petition under Article 226 of the Constitution of India should not be entertained, unless the statutory remedies are ill-suited to meet the demands of an extraordinary situation. (9). In my considered opinion where a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular remedy before seeking the discretionary remedy under Article 226 of the Constitution of India and the High Court, in exercise of its discretion under Article 226, may decline to interfere until all the statutory remedies are exhausted. (10). (10). In the present case, as a already stated above, an alternative statutory remedy of raising the industrial dispute under the provisions of Act of 1947 is available to the petitioner and when an alternative statutory, efficacious, efficient and adequate remedy is available to the petitioner, he should have first availed of that statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution of India. (11). Apart from this, whether the petitioner has completed 240 days of service in a calender year or not is a disputed question of facts which cannot be gone into while exercising jurisdiction under Article 226 of the Constitution of India. (12). For the reasons stated above, it is held that this writ petition is not maintainable on the ground of availability of alternative statutory remedy under the provisions of Act of 1947 as well as on the ground of involvement of disputed question of facts in this writ petition and the same deserves to be dismissed. Accordingly, this writ petition filed by the petitioner is dismissed as being not maintainable. However, the petitioner is at liberty to raise his grievance before the Appropriate Government and the Appropriate Government shall refer the matter to the Labour Court for adjudication.