Sachin Sharma vs State of M.P. and Others

Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution, the petitioner has prayed for a direction to permit him to continue on the post of Tracer with further financial benefits. Shri Chamlikar, learned counsel for the petitioner, submits that petitioner has completed more than 240 days before his termination and his services could not have been terminated without affording any opportunity of hearing to the petitioner. He relied on the judgments of this Court reported in 1996 (12) M.P.S.L.R. 241 (Rakesh Chand Arjaria Vs. Dist. Rural Development Agency Chhatarpur and others). He also relied on Sanjay Kumar Sharma Vs. Chief Executive Officer, Janpad Panchayat,

The two fold submissions advanced by Shri Chamlikar are:-

(i) The petitioner''s services are terminated without affording any opportunity and, therefore, the same is bad in law.

(ii) Petitioner has worked more than 240 days in a calendar year and therefore, without following the provisions of Industrial Disputes Act, 1947, his services should not have been terminated.

Shri Newaskar, learned Dy. Govt. Advocate submits that the petitioner was appointed on a temporary work for a fixed period. His services were terminated on completion of the work. By drawing attention of this Court to various paragraphs of the return, it is stated that petitioner had worked for less than 240 days. The period during which work was taken from the petitioner, salary has already been paid. He submits that no statutory, fundamental or vested right of the petitioner is infringed. No service conditions of the petitioner are infringed.

I have heard the learned counsel for the parties and perused the record.

The respondents have taken a specific stand in the return that the petitioner was appointed for a temporary work and on completion of the work, his services stood automatically terminated. The petitioner has not chosen to file any appointment order to show about his service conditions or terms of contract/employment. The petitioner has only filed educational qualification certificates and the documents which show that some payment has been made to him. Lastly, a legal notice sent by his counsel is filed along the petition. There is diametrically opposite stand of the parties in their pleadings. The petitioner submits that he has completed 240 days before his termination, whereas the return of the official respondents shows that his services are also in broken spells and services were not continuous.

In the opinion of this Court, the judgment cited by Shri Chamlikar in the case of Rakesh Chand Arjaria (supra) has no application in the present case. In the said case, the petitioner was regularized and accordingly became entitled to service protections. In the present case, there is no document on record which shows the nature of employment of the petitioner. Accordingly, the said judgment has no application in the facts and circumstances of this case. Similarly, the case of Sanjay Kumar (supra) has no application in the present case. There is a dispute between the parties whether the petitioner had completed 240 days proceeding his termination. This is settled in law that disputed question of facts cannot be gone into in writ petition. The petitioner has an alternative remedy under the Industrial law where he can lead evidence and establish his case. In view of that alternative remedy, I am not inclined to entertain this petition and proper remedy for the petitioner is to establish his case before the appropriate forum.

The Apex Court in Transport and Dock Workers Union and Others Vs. Mumbai Port Trust and Another, held as under:-

In our opinion the writ petition filed by the appellants should have been dismissed by the High Court on the ground of existence of an alternative remedy under the Industrial Disputes Act. It is well settled that writ jurisdiction is discretionary jurisdiction, and the discretion should not ordinarily be exercised if there is an alternative remedy available to the appellant. In this case there was a clear alternative remedy available to the appellants by raising an industrial dispute and hence we fail to understand why the High Court entertained the writ petition. It seems to us that some High Courts by adopting an over liberal approach are unnecessarily adding to their load of arrears instead of observing judicial discipline in following settled legal principles.

(Emphasis added)

In view of aforesaid question of facts, I deem it proper to relegate the petitioner to avail the alternative remedy under the Industrial law. It is made clear that this Court has not expressed any opinion on the merits of the case.

With the aforesaid, petition stands disposed of. No cost.