Roshan Lal vs State of U.P. and Others

C.K. Prasad, C.J. and Sanjay Misra, J.—This intra-Court appeal, at the instance of the writ petitioner-appellant, under Rule 5, Chapter VIII of the Allahabad High Court Rules, 1952, arises out of an order dated 24.7.2009, passed by a learned Judge in Civil Misc. Writ Petition No. 39776 of 2001.

Shorn of unnecessary details, facts giving rise to the present appeal are that the writ petitioner-appellant, hereinafter referred to as the ''petitioner'', filed the writ petition, inter alia, praying for quashing the order dated 19.6.2000, passed by the Commissioner, Gorakhpur Division, Gorakhpur whereby the prayer made by the petitioner to appoint him on the post of clerk treating him as a retrenched employee, had been rejected. Petitioner earlier approached this Court by filing Civil Misc. Writ Petition No. 18201 of 1998, inter alia, contending that he is a retrenched employee and, therefore, fit to be considered for appointment on a Class III post as a retrenched employee. The said writ petition was disposed of by this Court by order dated 21.1.2000 and while doing so, it directed as follows:

In case the Commissioner comes to the conclusion that the petitioner is in fact a retrenched employee Of Food and Civil Supply Department in that event the question of appointment of the petitioner on Class III post as retrenched employee shall be considered by the competent authority according to law and Government orders on the point.

In the light of the aforesaid order, the Commissioner had passed the order impugned in the writ petition, which was filed on 27.11.2001. The writ petition was posted for consideration before this Court on 3.12.2001, and at the request of the standing counsel representing respondents, the writ petition was adjourned by granting one month''s time to the respondents to file counter-affidavit and two weeks'' time thereafter to the petitioner to file rejoinder-affidavit. As directed by the Court, the respondents filed counter-affidavit on 15.1.2002 and the petitioner filed rejoinder-affidavit on 16.4.2002. Thereafter, the matter was taken up on 24.7.2009 when the learned Judge, relying on a Full Bench decision of this Court in the case of Chandrama Singh v. Managing Director, U.P. Co-operative Union, Lucknow and Ors. (1991) 2 UPLBEC 898 : 1991 (2) AWC 1005, dismissed the writ petition on the ground of alternative remedy and it is this order, which has been impugned in the present appeal.

As the order of the learned Judge is founded on the Full Bench decision of this Court in the case of Chandrama Singh (supra), we deem it expedient to reproduce the ratio of the said case, which reads as follows:

On the pleadings contained in the instant petition the petitioner should not be allowed to invoke the jurisdiction of this Court under ''Article 226 of the Constitution of India. The petitioner has complained violation of the provisions of Section 25F of the Industrial Disputes Act, 1947 and for redressal of his grievance an adequate and efficacious remedy of reference under the provisions of Section 10 of the said Act itself exists. The petitioner has neither pleaded nor proved the said remedy to be inadequate or inefficacious. He has also not demonstrated the existence of any exceptional or extraordinary circumstances to permit him to by-pass the alternative remedy available to him under the Industrial Disputes Act, 1947. The petition deserves to be dismissed on the ground of availability of alternative remedy to the petitioner.

In fairness, Mr. Kripa Shanker Singh, counsel for the petitioner, submits that the petitioner had the remedy under the U.P. Industrial Disputes Act, but once the writ petition was entertained and the parties had exchanged their pleadings, at such distance of time, the learned Judge ought not to have dismissed the writ petition on the ground of alternative remedy.

Mr. M.S. Pipersenia, standing counsel, appearing on behalf of the respondents, however, submits that in the face of the alternative remedy, the learned Judge did not err in dismissing the writ petition. In support of the submission, he has placed reliance on a decision of the Supreme Court in the case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Others Vs. Sahngoo Ram Arya and Another, and our attention has been drawn to paragraph 12 of the judgment, which reads as follows:

Mr. Sunil Gupta, learned Counsel appearing for the petitioner, contended that the remedy before the Tribunal under the U.P. Public Service Tribunal Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned Counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a Government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to by-pass the said Tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to by-pass the said Tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the Tribunal. In the said view of the matter, the appeals are dismissed. No costs.

It is well-settled that existence of alternative remedy does not bar the jurisdiction of this Court. It is a matter of discretion and not jurisdiction. It is self-imposed discipline, wherein when an Act provides for a complete machinery for seeking redress, the writ court declines to interfere in the matter and relegate a litigant to the remedy provided under the statute. Power under Article 226 of the Constitution is not intended to circumvent statutory procedure but it is not an absolute bar and merely a factor, which requires consideration while exercising the power. Dismissal of the writ petition on the ground of alternative remedy long after its filing and exchange of pleadings, may lead to shutting the door of alternative remedy itself. Provisions of alternative remedy in many of the cases provide for limitation and in case writ petitions are dismissed after exchange of pleadings after a long time, the damage cannot be countenanced.

In the present case, we proceed on an assumption that the petitioner has alternative remedy, but the question which falls for determination is as to whether in the facts of the present case, wherein the writ petition filed on 27.11.2001 was entertained and respondents and petitioner granted time to file counter-affidavit and rejoinder and they having exchanged the pleadings, the learned Judge was right in dismissing the writ petition on 24.7.2009 on the ground of alternative remedy.

Having given our anxious consideration to the question involved, we are of the opinion that the learned Judge erred in dismissing the writ petition on the ground of existence of alternative remedy at such a distance of time. The point in issue is no more res integra, as the Supreme Court had the occasion to consider the same in the case of L. Hirday Narain Vs. Income Tax Officer, Bareilly, in which it has been held as follows:

An order u/s 35 of the Income Tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income Tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income Tax Officer u/s 35, but was not moved, the High Court would be Justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.

(Emphasis supplied)

The Supreme Court had also considered this issue in the case of Durga Enterprises (P.) Ltd. and Anr. v. Principal Secretary, Govt. of U.P. and Ors. (2004) 13 SCC 665, in which, in categorical terms, it has been held that the High Court having entertained the writ petition in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. Relevant portion of the judgment of the Supreme Court in this regard, reads as follows:

By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents'' alleged right of re-entry on the disputed property in accordance with Sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid Rules contain a mechanism for adjudication of a dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved.

The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit.

We, therefore, set aside the impugned order of the High Court and remit the matter to it for taking a decision on merits, after hearing the parties, within the earliest possible period.

(Emphasis supplied)

A Division Bench of this Court had also the occasion to consider this question in the case of Diwakar Dutt Bhatt Vs. Life Insurance Corporation of India, Bombay and another, in which it has been held that the bar of alternative remedy is nothing but a matter of self-imposed discipline and in a case in which the petition was entertained and pleadings have been exchanged, it would be inexpedient to dismiss the writ petition on the ground of alternative remedy. Paragraph 12 of the judgment, which is relevant for the purpose, reads as follows:

As far as the first ground is concerned the writ petition was filed on 29.10.1997. The petition was entertained and the respondents were directed to file the counter-affidavit. The counter-affidavit has been filed. The rejoinder-affidavit has also been filed. The case was heard today. No doubt the administrative instructions provide for filing of an appeal but the question which remains to be decided is, as to whether, on the ground of availability of an alternative remedy the writ petition, which . has been entertained can be thrown out and the petitioner be relegated to the appellate authority. The bar of the alternative remedy is nothing but a matter of self-imposed discipline which the Courts have imposed upon themselves for the reason that the jurisdiction of Article 226 of the Constitution of India, should be invoked after exhausting the alternative remedies available to an aggrieved person.

This question also fell for consideration before a learned single Judge of this Court in the case of Indra Narain Tripathi v. Union of India and Ors. (2006) 1 UPLBEC 1012 : 2006 (5) AWC 4981, in which it has been held that after exchange of pleadings and four years of presentation of the writ petition, it would not be appropriate to throw out the petition on the ground of alternative remedy. Relevant portion of the said judgment reads as follows:

Learned Counsel for the respondents has raised a preliminary objection that a statutory revision lies against the impugned orders and in fact the petitioner has alleged that he had preferred the revision on 24.5.2001, therefore, the petition is not maintainable. The respondents in their counter-affidavit have denied that any memo of revision was received by the competent authority. The appeal of the petitioner was decided after about a decade of the removal order. This petition has remained pending for the last about 4 years and pleadings have been exchanged between the parties. Thus, on these facts it would not be appropriate to throw out the petition on the ground of alternative remedy.

Same view has been taken by this Court in the case of Lokman Singh v. Deputy General Manager, U.P.S.R.T.C, Meerut and Ors. 2006 (8) ADJ 646 : 2006 (7) AWC 6609, in which dismissal of the writ petition after exchange of pleadings after long distance of time on the ground of alternative remedy, under the Industrial Disputes Act, was found to be unsustainable. Paragraph 4 of the judgment, which is relevant for the purpose, reads as follows:

No doubt, the petitioner has a remedy of raising a dispute under the U.P. Industrial Disputes Act. However, since the petition was entertained in the year 1997 and counter and rejoinder-affidavits have been exchanged, it would not be proper for the Court to relegate the petitioner to an alternative remedy under the Industrial Disputes Act at this stage, and that too, after a period of almost 10 years. Consequently, the preliminary objection made by the learned Counsel for the respondents is rejected.

Bearing in mind the aforesaid principle, when we consider the facts of the case, we are of the opinion that the learned Judge, after having entertained the writ petition, directed the parties to file counter and rejoinder-affidavits and that having already been done, at such a distance of time, ought not to have dismissed the writ petition on the ground of alternative remedy.

We hasten to add that after exchange of pleadings, the Court may not be in a position to decide the disputed question of fact, for the reason that for deciding the same, evidence may be required to be laid, and in such circumstance the writ petition cannot be dismissed on the ground of alternative remedy but on the ground that the issue of fact cannot be decided in a writ petition.

When we test the order of the learned Judge from the aforesaid angle, we are of the opinion that the order cannot be sustained in the eyes of law.

Accordingly, the appeal succeeds and is allowed. The order dated 24.7.2009, passed in Civil Misc. Writ Petition No. 39776 of 2001 is set aside and the matter is remitted back to the learned Judge for reconsideration on merits in accordance with law.

In the facts and circumstances of the case, there shall be no order as to costs.