The court cannot convert itself into an Industrial Dispute Court and the remedy for an Industrial Dispute should be pursued if necessary.

S.B. Sinha & Narayan Roy, JJ.

The petitioners in this writ application have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to consider the case of petitioner no. 2 for an appointment on the ground that petitioner no. 1 has opted for voluntary retirement in terms of para 9.4.3 of National Coal Wage Agreement-IV.

2. The petitioner no. 1 is working in Soundih Colliery as a Hook Man. Petitioner no. 2 is his son. According to the petitioner in terms of Clause 9.4.3 of the National Coal Wage Agreement-IV itself it has been stipulated that the workman who became permanently disabled, one of his dependents would be entitled to be considered for appointment in the establishment. Admittedly, the date of retirement of the employees is 60 years. The petitioner no. 1 allegedly exercised his option under clause 9.4.3 of the National Coal Wage Agreement seeking voluntary retirement so that his son (petitioner no. 2) may be provided with an employment. According to him he appeared before the Medical Board and on 1.11.1990 by an office order no. 5255 he has informed that the Medical Board did not find him unfit in terms of clause no. 9.4.3. The petitioners have contended that thereafter, petitioner no. 1 filed an application on 10.11.1990 under clause 9.4.3 of the aforementioned agreement for voluntary retirement and he was directed to appear along with his dependent with educational certificates before a Committee on 21.11.1990 for preliminary medical examination. He allegedly appeared before the Medical Board on 9.5.1991 and he was referred to the Headquarters Medical Board by an office order no. 2959 dated 31.8.1991. He again appeared before the Medical Board on 14.5.1992, wherein he was also found medically unfit along with others. According to the petitioners, he filed an application on 30.11.1992 that his case may be considered immediately so that his son may be given an employment as he has been declared medically fit. Petitioner no. 1 admittedly retired on 1.12.1992. His contention is that his son was therefore, entitled to employment in terms of the said settlement.

3. Mr. V. Shivnath learned counsel appearing for the petitioners has submitted that in this case, the petitioners have been discriminated against in as much as the persons similarly situated have been allowed to take the benefit of clause 9.4.3 of the aforementioned agreement.

4. In this case, a counter affidavit has been filed in which it has been stated that the recommendation of the Medical Board was not approved by the competent authority. It has further been submitted that as the petitioner no. 1 has already retired, the question of invoking the provisions of clause 9.4.3 of the National Coal Wage Agreement-IV does not arise. It has further been submitted that the petitioner no. 1 appeared before the Medical Board on several occasions namely, on 27.7.1990, 10.11.1990, 4.9.1991 and 14.5.1992 and he was always found medically unfit and thus in his case it was held that clause 9.4.3 of the National Coal Wage Agreement-IV was not attracted.

5. In view of the fact that the petitioner no. 1 has since been retired, in our opinion, no case for issuance of any writ in favour of the petitioners has been made out. Further, even if it be found that the action of the Management is malafide, the remedy of the petitioner is to raise an Industrial Dispute as in our view, this Court, in the facts and circumstances of the case, while exercising jurisdiction under Article 226 of the Constitution of India cannot convert itself into an Industrial Dispute Court. Reference in this connection may be made to a decision of the Supreme Court reported in 1964 S.C., 1260.

6. For the reasons aforementioned, there is no merit in this application. It is accordingly dismissed.