RAM KESH YADAV v. DISTRICT INSPECTOR OF SCHOOLS, GORAKHPUR
2007-05-01
RAKESH TIWARI
body2007
DigiLaw.ai
( 1 ) EARD counsel for the parties and perused the record. By means of this writ petition the petitioner has challenged the impugned order dated 9/10. 1. 1996 contained in Annexure 4 to the writ petition passed by the District Inspector of Schools, Gorakhpur and the notice dated 12. 7. 1996 contained in Annexure 6 to the writ petition issued by respondent no. 4. The petitioners have also sought a writ of mandamus commanding the respondents to accord financial sanction/approval to their selection and pay their salary along with arrears. ( 2 ) FROM the record it appears that out of 21 posts of Class IV category of employees in the Murari Intermediate College, Sahjanwa, Gorakhpur at least 16 posts are required to be filled up according to the standard given in the Intermediate Education Act. Prior to 3. 1. 1995 four posts of Class IV employees fell vacant either on account of promotion or on account of death. In January 1995 only 13 approved Class IV employees were working. The Principal of the College advertised the posts fell vacant either on account of retirement or promotion or death. ( 3 ) IT appears that the petitioners applied for the posts and the selection committee recommended the names of the petitioners for being appointed on Class IV posts and the Principal of the College accepted the recommendation of the Selection Committee and sent all the relevant papers to the District Inspector of Schools, Gorakhpur for according financial sanction and approval to the selection of the petitioners on the posts of Class IV. However, the District Inspector of Schools vide impugned order dated 10. 1. 1996 refused to accord financial sanction and approval to the selection of the petitioners on the post of Class IV, hence this writ petition. ( 4 ) THE Standing Counsel submits that the controversy raised in the writ petition requires adjudication of facts on the basis of oral and documentary evidence. He states that the law is well entrenched 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 Labour Court or Tribunal having jurisdiction in the matter have been established. Alternative remedy is absolute bar in the cases where such question of facts is to be decided by adjudication.
Alternative remedy is absolute bar in the cases where such question of facts is to be decided by adjudication. He urged that the petitioners have approached this Court without exhausting the alternative remedy available to them before the Labour Court, which is not denied by the counsel for the petitioners. ( 5 ) THE petitioners are "workman" under the Industrial Disputes Act. They have alternate and efficacious remedy under the Industrial Disputes Act. The apex court in Hindustan Steel Works Construction Ltd. , and another Vs. Hindustan Steel Works Construction Ltd. , Employees Union- (2005) 6 S. C. C. 725 and U. P. State Spinning Co. Ltd. Vs. R. S. Pandey and another, (2005) 107 F. L. R. 729, has held that where the petitioner has an alternative and efficacious remedy the writ petition should not be entertained. ( 6 ) 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 and 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. ( 7 ) IN U. P. State Bridge Corporation Ltd. Vs. U. P. Rajya Setu Nigam S. Karmchari Sangh (2004) 4 SCC268= 2005 AIR SCW-3149 recently the apex Court has held that- "17. . . Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurrer. Nevertheless, even when there has been such a delay where the issued raise requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen in this case remained unresolved. They must be resolved in a manner, which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correctly refused to entertain the writ petition for such relief.
They must be resolved in a manner, which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correctly refused to entertain the writ petition for such relief. " ( 8 ) I am of the opinion that the relief prayed for by the petitioners can be granted only after appreciation of oral and documentary evidence. It is not feasible in writ jurisdiction under Article 226 of the Constitution to record findings of facts. ( 9 ) FOR the aforesaid reasons this petition is dismissed on the ground of availability of alternate remedy. If the petitioners raise an industrial dispute regarding their grievance before the Labour Court, the competent authority shall immediately refer the matter in dispute to appropriate court for adjudication. As the matter is pending since long the reference so made, shall be decided by the Court in the manner prescribed and time limits provided in Rule 12 of the U. P. Industrial Disputes Rules 1957 for filing written statements, rejoinder, documents etc. If necessary, the proceedings may be held on day-to-day basis under Rule 12 (4) of the Rules. The case may be decided preferably within a period of six months from the date of receipt of reference in view of the judgment rendered in Writ Petition No. 17602 of 1990, Basant Lal Vs. U. P. State Roadways Transport Corporation and others, (2003) 1 U. P. L. B. E. C. 154. No order as to costs. .