2006 Supreme(Guj) 430

Gujarat High Court
Judgename :H.K.RATHOD
GEMABHAI ABAHYSINH BARIA - Appellant
Versus
BHARAT SANCHAR NIGAM LTD. - Respondent
SPECIAL CIVIL APPLICATION 14406 Of 2006
Decided On : 07/25/2006

Headnote:Point in Issue :

       Whether where alternative equally efficacious statutory remedy is available and petitioner has directly approached the Court, the petition under writ jurisdiction of the Court is maintainable.

       Head Note :

       (a) Service and Employment - Writ petition - Availability of alternate remedy - Sustainability - Finding of - If the termination is challenged under the machinery of the Act before appropriate forum then the Labour Court is having power to grant full relief and is empowered to restore the original position as if the order of termination has not been passed - Also considering matter from different angle if the Court entertain such type of petition then the machinery provided under the Act would remain without work and each and every petitioner would approach this Court by invoking extra ordinary jurisdiction - Therefore, such petitions cannot be entertained by this Court and this Court has to take care in exercising extra-ordinary jurisdiction and not to entertain such petition - It is true that Labour Court may not be able to grant interim relief but this may not be a ground for contending that the remedy available before Labour Court is not an effective remedy because ultimately Labour Court would be able to examine disputed question of facts - Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Constitution of India, 1950 - Article 226.

       Held :

       According to Court opinion, this being a prima facie disputed question of fact because what type of inquiry contemplated under Rule 9, writ petitions cannot be entertained. Another aspect is that if the termination is clallenged under the machinery of the I.D. Act, 1947 before the appropriate forum, then the Labour Court is having power to grant full relief and is empowered to restore the original position as if the order of termination has not been passed, therefore, considering this aspect of the matter, decision relied upon by Mr. Thakore is not applicable to the facts of this case and this Court has also considered other decision and observed that no hard and fast rule can be laid down in this regard. [Para 10]

       Here, considering this matter from different angle, if this Court would entertain such type of petition then, the machinery provided under the I.D. Act for adjudication of such matters would remain without work and each and every petitioner would approach this Court by invoking extra-ordinary jurisdiction because each and every case of misconduct would be having a scope of argument about the breach of the principles of natural justice. If the order of dismissal is straight way challenged by workman against State Authority pointing out that the principles of natural justice have been violated praying to entertain petition, and if such prayer is entertained, the forum created and constituted by enacting special legislation would remain without work and High Court will not be able to concentrate or pay attention to important matters and, therefore, whenever special legislation is providing any special remedy, then, it is not proper for this Court to entertain writ petition for which alternative statutory remedy is available to workman. Therefore, such petitions cannot be entertained by this Court and this Court has to take care in exercising extra-ordinary jurisdiction and not to entertain such petition. It is true that the Labour Court may not be able to grant interim relief but this may not be a ground for contending that the remedy available before the Labour Court is not an effective remedy as it is not able to grant interim relief because ultimately Labour Court would be able to examine disputed questions of fact on the basis of oral and documentary evidence which this Court cannot do in exercise of powers under Article 226/227 of the Constitution of India. [Para 11]

       Another aspect is also required to be noted that when the petition has been filed by the petitioners raising grievance against the notice of termination dated 30.06.2006, then, it is the duty of the party before approaching this Court to first approach the authority concerned against the action sought to be challenged in a petition. In this case, admittedly, petitioners have approached this Court without first approaching the respondents in the subject matter of this petition. This petition challenging the notice of termination dated 30.06.2006 is filed on 18.07.2006 as the affidavit of petitioner is dated 19.07.2006. Matter was circulated on 20.07.2006 and it was kept for hearing on 21.07.2006. In between from the date of receipt of notice of termination till the date of filing of petition, whether the petitioners have approached the respondents or not in the subject matter of petition, that is not clear and no submission is made in that regard. [Para 13]

       Petitioners have not approached the respondent authority raising contention about breach of the principles of natural justice as well as grievance that no full flagged inquiry has been conducted against the petitioners. It is not coming out from he record and at the same time, it is not submitted by the Advocate for the petitioner that the petitioners have approached the respondents in the subject matter of these petitions prior to filing of these petitions and such representation is pending and/or decided by the respondents. In view of this also, direct petition without initial approach to the respondents cannot be entertained and mandamus in such a petitions cannot be issued. On this ground also, these petitions cannot be entertained as the petitioners have not first approached the respondents. Therefore, considering these entire facts and circumstances of this case, according to looking to the facts, circumstances and misconduct as narrated in the notice of termination, it is not a case wherein this Court can exercise discretionary power in favour of the petitioner under Article 226 of the Constitution of India. Therefore, these petitions are required to be rejected on these two grounds, one of availability of alternative equally efficacious statutory remedy and the another is that the petitioners have directly approached this Court without first approaching the respondents in the subject matter of these petitions. Therefore, this Court is not entertaining these petitions and dismissing the petitions without expressing any opinion on the merits of the matter. [Para 14]

       In result, in view of the peculiar facts of this case and the decisions considered herein above on the aforesaid two grounds, namely availability of alternative equally efficacious statutory remedy and since petitioners have directly filed this petition without first approaching the respondents, these petitions are not entertained and same are dismissed. [Para 19]

       Head Note :

       (b) Service and Employment - Termination - Challenge to - Writ Petition - Violation of - Principles of Natural Justice - Maintainability - Finding as to - Status of petitioner is temporary regular Mazdoor - He is not a permanent employee governed by statutory rules framed under Article 309 of Constitution - The inquiry as contemplated under Rule 9 also does not suggest only full fledged inquiry - Therefore, from the notices referred to herein prima facie suggest that the respondents have followed the procedure to give reasonable opportunity and to prove misconduct in inquiry - Four notices were given to petitioner before taking the final decision - Reply given by the petitioner was considered before taking the final decision - It is, therefore, clear that respondents have not committed breach of principles of natural justice in passing impugned order necessiting maintainability of writ petition.

       Held :

       Here, looking to the notices of termination read with Rule 9, it is not clear that it suggests full flagged inquiry which is in the mind of the Senior Advocate Mr. Mihir Thakore. Inquiry contemplated under Rule 9 is not interpreted or defined or for that, no submission is made, therefore, whatever steps being taken before coming to the conclusion by the respondents, reasonable opportunity was given. Considering the issuance of four notices before taking the final decision as referred to herein above, it cannot be said that it is a case of no opportunity. In view of the notices issued by respondents and reply given by petitioner and consideration thereof in the final order, prima facie, it cannot be said to be a case of no opportunity and, therefore, it is prima facie incorrect to contend that there is breach of the principles of natural justice. The process undertaken may be satisfying the inquiry as mentioned in Rule 9. So, decision relied upon by Mr. Thakore in case of U.P. State Spinning Company Ltd. vs. R.S. Pandey & Anr., would not be helpful to the petitioner in the facts of this case because considering Rule 9 read with notices of termination, there is no prima facie breach of the principles of natural justice because opportunity was given by issuing notices and reply of petitioners were considered by respondents before taking final decision.

        [Para 4]

       Head Note :

       (c) Industrial Disputes Act, 1947 (Central Act 14 of 1947) - Sections 2(a), 2(S) 2(1) 2(k) and 10(1) - Termination - Challenge to - Petition for - Writ jurisdiction - Sustainability - It is contended that Labour Court cannot grant interim relief while exercising power under the Act, therefore, this Court must entertain petition - Court held that contention is without force because it is settled law that merely because the forum before which the alternative remedy is available is not having power to grant interim relief it cannot become a ground to entertain the writ petition.

       Held :

       Non availability of interim relief cannot give any right to petitioners to contend before this Court that this Court must entertain petition since labour Court is not having power to examine matter for interim relief. Termination order is based on misconduct. It is a settled law laid down by the Apex Court that merely because the forum before which the alternative remedy is available is not having power to grant interim relief, it cannot become a ground to entertain the writ petition. Here, since the petitioners can challenge the impugned action under the machinery of the I.D. Act, 1947, these petitions cannot be entertained. [Para 3]

       Law Laid Down :

       On ground of availability of alternative remedy and directly approaching the Court without first approaching respondents, writ petition challenging termination not maintainable.

       Case Law Analysis :

       U.P. State Spinning Company Ltd. vs. RS Pandey & Anr., 2005 (8) SCC 264 = JT 2005 (12) SC 242 [Para ].- Distinguished

       Conclusion :

       These petitions are required to be rejected on two grounds one of availability of alternative equally efficacious statutory remedy and another that petitioners have directly approached this Court without first approaching respondents.

       Cases Referred :

       Ram and Shyam vs. State of Haryana & Ors., AIR 1985 SC 1147;; First Income Tax Officer, Salem vs. M/s. Short Brothers (P) Ltd., 1966 (3) SCR 84;; State of UP & Ors. vs. M/s. Indian Hume Pipe Co. Ltd. 1977 (2) SCC 724;; Binny Ltd. & Anr. vs. V. Sadasivan & Ors., AIR 2005 SC 3202;; UP vs. Bridge and Roof Co., 1996 (6) SCC 22;; Kerala State Electricity Board vs. Kurien E. Kalathil 2000 (6) SCC 295;; New Okhla Industrial Development Authority vs. Kendriya Karmchari Sahkari Grih Nirman Samiti, 2003 (3) Supreme 617;; Gnwant Kaur vs. Municipal Committee, AIR 1970 SC 802;; Mahanta Moti Das vs. S.P. Sahid, AIR 1959 SC 942;; Union of India vs. T.R. Verma AIR 1957 SC 882;; Samjana M. Wig vs. Hindustan Petroleum Corporation, 2005 (8) SCC 242;; Secretary, Minor Irrigation & Rural Engineering Services UP & Ors. vs. Sahngoo Ram Arya & Anr., 2002 SCC (L&S) 775;; Saraswati Indusrial Syndicate Ltd. Etc. vs. Union of India, AIR 1975 SC 460;; State of Haryana & Anr. vs. Chanan Mal etc. AIR 1976 SC 1654;; Amrit Lal Berry (WP No. 463 of 1971), K.N. Kapur & Ors., (WP No. 2004 of 1973), vs. Collector of Central Excise, Central Revenue & Ors., AIR 1975 SC 538;; Kamini Kumar Das vs. State of West Bengal, AIR 1972 SC 2060;; Gujarat Mazdoor Sabha and Commissioner of Labour & Ors., 2006 (I) LLJ 546.

       Decided in Favour of :

       Respondent