Ram Lakhan Patel vs I.T.I.Ltd.,Naini

Sudhir Narain, J.—This writ petition is directed against the order dated 28101997 passed by the Chief Personnel Manager, I.T.I. Ltd., Naini, Allahabad, Respondent No. 2, dismissing the petitioner from service.

The petitioner was employed as Class IV employee categorised as Senior Technical Assistant (F Category) in I.T.I. Ltd., Naini, Allahabad. He was suspended on certain charges on 5101997. On 8101997 he was given a chargesheet. The suspension order was, however, revoked on 18101997. The petitioner was again chargesheeted on 20101997 and again suspended on 21101997.

The allegation against the petitioner is that on 25101997 he created disturbance in the enquiry proceeding and had broken the glasses of office at hill premises. On 27101997 he made demonstration rebuking and threatening officers. The Enquiry Officer reported that it was not possible to carry on the enquiry proceeding. The reply submitted by the petitioner to the charge sheet dated 8101997 was considered by Respondent No. 2 and after considering his reply it was found that the petitioner was guilty of charges and dismissed him from service by the impugned order.

I have heard Sri R.K. Ojha, learned Counsel for the petitioner and Sri J.N. Tiwari, learned Senior Advocate, for the respondents.

A preliminary objection has been taken that the petitioner has an alternative remedy to raise industrial dispute under the provisions of U.P. Industrial Disputes Act, 1947. In support of his contention, learned Counsel for the respondents has placed reliance upon the decision of the Full Bench in Chandrama Singh v. Managing Director U.P Cooperative Union & Ors., 1991 (63) FLR 478, wherein it was held that if a workman is retrenched in violation of Section 25F of the Industrial Disputes Act, 1947 or Section 6M of the U.P. Industrial Disputes Act, 1947, the workman has adequate and efficacious alternative remedy by raising industrial dispute and the High Court should not entertain writ petition against the order of retrenchment in its extraordinary jurisdiction under Article 226 of the Constitution of India.

In Rajasthan State Road Transport Corporation & Anr. v. Krishna Kant & Ors., AIR 1995 SC 1715, the Supreme Court laid down various guidelines when the workman should be relegated to raise the dispute before the appropriate Court. It is relevant to mention the two tests laid down in this decision:

"Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1947which can be called ''sister enactments'' to Industrial Disputes Actand which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open.

It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous on ex fade. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication."

Learned Counsel for the petitioner submitted that the petitioner was not given opportunity of hearing and the order of dismissal was passed in violation of principle of natural justice and in these circumstances the mere fact that the petitioner has alternative remedy, will not deprive the petitioner to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. He has placed reliance upon the decision/lmbika Singh v. U.P. State Sugar Corporation Ltd. & Anr., (1990) 1 UPLBEC 699, wherein it was held that if the date of birth recorded in the service book is altered by the respondents without giving an opportunity of being heard and the petitioner is directed to retire on the basis of the altered date of birth, the Court can entertain writ petition and pass appropriate order.

In Baidya Nath Rai v. Registrar, Kanpur University Kanpur & Ors., (1991) 1 UPLBEC 243, the services of the petitioner were terminated on the ground that he had passed Intermediate examination and B.A. examination without even having High School certificate and his appointment was invalid. The Court set aside the order holding that the contention of the petitioner therein was that he had passed Prathama and Madhyama examination with was equivalent to High School and the petitioner''s services should not have been terminated without giving him any opportunity of being heard and the writ petition, in these circumstances, cannot be dismissed on the ground of alternative remedy.

In Devi Lal Shah v. Union of India & Anr., (1991) 1UPLBEC480, the services of the petitioner therein were terminated without supplying the copy of enquiry report. There was no factual dispute and the Court, relying upon the decision Union of India & Anr. v. Mohammad Ramzan Khan, 1990 (4) JT 456, set aside the order of termination holding that the petitioner cannot be directed to avail alternative remedy when admittedly the order was passed in violation of principles of natural justice.

In Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P) & Ors., AIR 1987 SC 2186, the Supreme Court held that if an order has been reviewed by the ViceChancellor, which is without jurisdiction, the Court has a jurisdiction to examine the matter instead of dismissing the writ petition on the ground of alternative remedy. A Division Bench of this Court, in Special Appeal No. 198 of 1997, Narendra Tyagi v. U.P. State Sugar Corporation Ltd., Lucknow & another, where the order of dismissal of service was passed without affording opportunity to the petitioner and without enquiry being conducted, set aside the order of dismissal with direction to hold an enquiry regarding the misconduct allegedly committed by the appellant therein.

These cases have no application to the facts of the present case.

The petitioner was given a chargesheet on 8101997. He was suspended on 5101997 but on his assurance the suspension order was revoked but again he created trouble on 18101997 and he was again suspended on 21101997. The petitioner had submitted reply to the chargesheet. The allegation against the petitioner is that he is a Trade Union leader. He created hindrance in the enquiry proceeding. The petitioner has admitted that he is a Secretary of the I.T.I. Sangh, Allahabad. The petitioner has alleged that all the charges were vitiated by mala fides. The matter can be examined properly by the appropriate authority or by the Labour Court under the provisions of U.P. Industrial Disputes Act, 1947. In Delhi Cloth & General Mills Co. v. Ludh Budh Singh, (1972) 3 SCR 29, the Apex Court laid down following principles where the Tribunal itself can take into consideration the evidence which may be adduced by the parties before it:

"(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.

(2) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn, without anything more, that the management has given up the enquiry conducted by it.

(3) When the management relies on the enquiry conducted by it and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.

(4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However, elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry."

In United Planters Association of Southern India v. K. G. Sangameswaran & Anr., (1997) 4 SCC 741, it was again emphasised that if the domestic enquiry held by the employer is defective, deficient, incomplete or not held at all, the Tribunal, instead of remanding the case to the enquiry officer for holding the enquiry de novo, would itself require the parties to produce their evidence so as to decide whether the charges, for which disciplinary action was taken against the employee, were established or not.

In view of the above discussion the petitioner has appropriate alternative remedy under the provisions of U.P. Industrial Disputes Act, 1947. The writ petition is accordingly dismissed.

Writ petition dismissed.