ORDER
V.G. Palshikar, J.
1.By these petitions the petitioners seek a writ of mandamus directing the respondent-Haryana State Electricity Board, a statutory body to refund the earnest money or security deposit offered by the petitioner in response to the invitation to offer issued by the Haryana State Electricity Board. The petitioner-Company was unable to supply the material on the terms required by the Haryana State Electricity Board and, therefore, no contract of supply materialised. The claim of the petitioner for refund of the earnest money or security deposit not having been acceded to by the Board, the present
petitions are filed.
2. The former Chief Justice of India Hon’ble Mr. Justice M. H. Beg observed, while deciding case of Ganpat v. Sashikant, AIR 1978 SC 955, about law of interpretation and precedence. It would be worthwhile to consider in extenso what was observed by his Lordship (at page 956),–
“If the quest for certainty in law is often baffled, as it is according to Judge Jerome Frank in “Law and the Modern Mind”, the reasons arc mainly two: firstly, the lack of precise formulation of even statutory law so as to leave lacunae and loopholes in it giving scope to much avoidable disputation : and, secondly, the unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored and subjected to forensic debate. Even the staunchest exponents of legal realism, who are apt to treat the quest for certainty in the administration of justice in accordance with law, in an uncertain world of imperfect human beings, to be practically always futile and doomed to failure, will not deny the desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are not infrequent instances where what should have been clear and certain, by applying well-established canons of statutory construction becomes befogged by the vagaries, if one may use a possibly strong word without disrespect, of judicial exposition divorced from these canons.”
3. Then with regard to the observance of the law of precedent it was observed by the Supreme Court in the same judgment referred to above as under:–
“Even that certainty and predictability in the administration of justice in accordance with law which is possible only if lawyers and Courts care to scrupulously apply the law clearly declared by this Court, would not be attainable, if this elementary duty is overlooked.”
4. The quest of certainty in law is often baffled for lack of precise formulation of statutory law leaving lacunae giving rise to much avoidable disputations. One such lacuna, in my opinion can be observed in Article 226 of the Constitution of India. It does not lay down in terms any limitation on the scope of issuing writs under that Article though in several decisions the Supreme Court observed consistently that the existence of efficacious alternate remedy shall normally be
bar for exercise of the writ jurisdiction under Article 226.
5. The provisions of Article 226 of the Constitution were extensively amended in 1976 after proclamation of emergency by the then Government led by the Congress party and certain limitations were incorporated in Article 226. It would be worthwhile to note the same verbatim,–
“Notwithstanding anything in Article 32 but subject to the provisions of Article 131A and Article 226A, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them,–
(a) for the enforcement of any of the rights conferred by the provisions of Part III; or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice.
(2) The power conferred by Clasue (1) to issue directions, orders or writs to any Government-authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.
(4) No interim order (whether by way of injunction or stay or any other manner) shall be made on, or in any proceedings relating to, a petition under Clause (1) unless–
(a) copies of such petition and of all documents in support of the plea for such interim orders arc furnished to the party against whom such petition is filed or proposed to be filed; and
(b) opportunity is given to such party to be heard in the matter.
(5) The High Court may dispense with the requirements of Sub-clauses (a) and (b) of Clause (4) and make an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing that it is necessary so to do for preventing any loss being caused to the petitioner which cannot be adequately compensated in money but any such interim order shall, if it is not vacated earlier, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the High Court has continued the operation of the interim order.
(6) Notwithstanding anything in Clause (4) or Clause (5), no interim order (whether by way of injunction or stay or in any other manner shall be made on, or in any proceedings relating to, a petition under Clause (1) where such order will have the effect of delaying any inquiry into a matter of public importance or any investigation or inquiry into an offence punishable with imprisonment or any action for the execution of any work or project of public utility, or the acquisition of any property for such execution by the Government or any corporation owned or controlled by the Government.
(7) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32.”
6. When the Government at the Centre changed after revocation of emergency in 1978 the Government led by Janta Party took up the quite cleansing process to undo the amendments which according to it were improperly taken up by the Congress Government. All the clauses added to Article 226 by the earlier amendment were, therefore, deleted by 44th Amendment. The lacunae, therefore, revived. With the result that avoidable disputations were again on the rise.
7. The Government of India has legislated Industrial Disputes Act, 1947 creating a complete
Code by which certain rights were bestowed on the employees and a machinery for redressal of violation of those rights was provided by establishment of Industrial and Labour Courts throughout the country and an effective forum for adjudication of the industrial disputes was thus established by law Disputes of termination of services of the employees and matters analogous thereto were liable to be adjudicated by raising an appropriate dispute under the Industrial Disputes Act. Thus there was in existence an efficacious remedy for redressal of the grievance of the employees even prior to the commencement of the Constitution of India.
8. However, it was a practice in this High Court to admit for hearing the petitions directly filed in this Court pertaining to violation of the provisions of the Industrial Disputes Act in spite of the fact that adequate remedy under the Act was available. In due course the Full Bench of this Court delivered a judgment in Smt. Indu v. Municipal Council, Jodhpur, 1991 (1) RLR 68, laying down that entertaining such petitions directly is not prohibited and sounded a caution that it should not be regularly done. Thereafter a Division Bench of this Court delivered a judgment in the case of Rajasthan Pul Nigam Workers Union v. Rajasthan State Bridge Construction Corporation Ltd., 1991 (2) RLR 188, modifying the dicta of the Full Bench decision in Smt. Indu’s case holding that such petitions directly filed to this Court in spite of availability of alternate remedy under the Industrial Disputes Act is permissible and they should be admitted as a matter of course.
9. This aspect was noticed by me sitting singly in doing service matter writ petitions and, therefore, after hearing parties at length in Writ Petition No. 301 1/90, Gopilal Teli v. State of Rajasthan, I made a reference to My Lord the Chief Justice to solve the apparent conflict between the two judgments and its interpretation given by the Division Bench in Rajasthan Pul Nigam’s case (supra) this reference was heard by a Bench of five-Judges of this Court and it was held as under :–
“After giving our thoughtful consideration to the facts and submissions made at the Bar and in view of catena of cases decided by the Apex Court on the question referred to us, we are of the opinion that the answer to the question referred
by the learned single Judge is in negative and we are further of the view that the ratio laid down by the Full Bench of this Court in Smt. Indu’s case (supra) and the Division Bench in Rajasthan Pul Nigam’s case (supra) does not lay down correct law and we specifically overruled the aforesaid decisions. We are of the opinion that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is not to pursue the remedy provided under the Act and power under Article 226 of the Constitution of India in such cases should be sparingly exercised.”
10. Thereafter the matters of such kind were argued before me repeatedly and it was contended that after the decision in Gopilal Teli’s case such writ petition may not be entertained directly but petitions admitted prior to this decision for final hearing cannot now be dismissed on the ground of existence of alternate remedy. After hearing these arguments in quite some cases, I delivered another judgment in Jaldai Shramik Kalyan Singh v. State of Rajasthan, 1997 (3) RLW 1603, providing history of litigation and law I held that to ignore the decision rendered by five Hon’ble Judges would be against the judicial decorum and unconstitutional in face of Article 141 of the Constitution of India.
11. According to me, therefore, the position of law is settled and clear. As has been said by Chief Justice Beg in the above-referred judgment. I consider it my duty to scrupulously apply the law clearly declared by the Hon’ble Supreme Court and a larger Bench of this Court in Gopilal Teli’s case. For failure to do so would cost predictability in the administration of justice in accordance with law.
12. In a very recent judgment from West Bengal the Supreme Court of India has observed while regretting the insistence of a Hon’ble Judge of the Calcutta High Court to reiterate what he has said earlier in spite what was said was overruled by the Supreme Court, that if a judgment is overruled by the higher Court, judicial discipline requires that the Judge whose judgment is overruled must submit to that judgment. These observations apply mutatis mutandis to law laid down by a larger Bench to entertain petitions filed directly in this Court though alternate remedy under the Industrial Disputes Act exist merely on the ground that they are
already admitted is, therefore, to undertake the same exercise as was done by the Calcutta High Court and was deprecated by the Supreme Court. To say now that already admitted cases can always be considered in spite of what has been laid down in Gopilal Teli’ s case is to deliberately ignore the judgment in Gopilal Teli’s case and to follow the judgment in Rajasthan Pul Nigam’s case which stands overruled by the Supreme Court by the above-referred judgment was following the overruled judgment. Now to hear and decide on merit cases which are directly filed in the High Court in spite of the existence of alternative remedy on the ground that they are so admitted earlier is to rely and apply the law laid down in Rajasthan Pul Nigam’s case though it is specifically overruled by the Supreme Court. I for one do not wish to expose myself to such possible criticism. I, therefore, find it an incorrect position in law to hear such cases on merits.
13. This position in law must prevail in relation to every other cases where an alternate efficacious remedy is available. It has been held consistently for decades that proper remedy for recovery of money due is a civil suit where rival claims can be examined, analysed, proved and awarded which cannot be done in the writ jurisdiction. To claim that the existence of alternate remedy should be ignored in cases of such kind is unsustainable in law for the reasons aforesaid. What is true of a remedy available to the Industrial Disputes Act must also be true of a civil suit. There is yet another angle which must be kept in mind which is deliberate avoiding of payment of Court-fee. For example, a refund is claimed from a statutory body of earnest money of Rupees one lac. It may be the duty of the statutory body to return the earnest money if no complete contract comes up between the parties. Failure to do that duty entails civil consequences for which appropriate remedy is a civil suit on payment of Court-fee which may be Rupees one thousand or more. It is only in order to avoid the payment of this Court-fee that a writ petition on payment of Rs. 25/- Court-fee is filed. The writ jurisdiction should not be exercised to allow such circumvention of payment of Court-fee.
14. For the reasons aforesaid, I refuse to exercise jurisdiction under Article 226 of the Constitution of India and dismiss the writ petition. The petitioner shall approach the Civil Court
within three months of this order and the time
taken in prosecuting the proceedings before this
Court shall be excluded while computing the
period of limitation as held by Supreme Court in
Rameshwar Lal v. Municipal Council, Tonk.
1996 (6) SCC 100.