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SCA/13026/2009 8/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13026 of 2009
=========================================================
INDRAJEETSINH
S SINDHA & 8 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
RK MISHRA for
Petitioner(s) : 1 - 9.MR DEEPAK P SANCHELA for Petitioner(s) : 1 - 7,
9,
MR ANAND L SHARMA, AGP for Respondent(s) : 1 - 2, 4,
NOTICE
SERVED BY DS for Respondent(s) : 1 - 4.
MR BS PATEL for
Respondent(s) : 3,
MR KEYUR A VYAS for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 07/04/2010
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties.
Learned
advocate Mr. Mishra and learned advocate Mr. Sanchela both have
argued this matter at length for about more than one and half hours.
This Court has permitted them to argue at length to the satisfaction
of both learned advocates. It is necessary to reproduce the prayers
made in this petition in Para 23(A) and 23(B) as under :
23(A) Your
Lordships may be pleased to quash and set aside the order of the
termination under notices dated 27/11/2009 and others annex at
Annexure-C (Colly) by holding and declaring that the action on the
part of the respondent authorities is against the provisions of
Section 25-F of the Industrial Disputes Act, 1947 and the Payment of
Gratuity Act, 1947 and the Payment of Gratuity Act, whereas one
month’s notice period has been given, and further be pleased to hold
that the said action of the respondent is illegal, violative of
Article 21 of the Constitution of India and therefore, Your Lordships
may be pleased to hold and declare that the proposed action seeking
to terminate the services of the petitioners is illegal, arbitrary,
violative of Article 14, 16 and 21 of the Constitution of India,
Section 25-F of the Industrial Disputes Act, 1947 and Section 4 of
the Payment of Gratuity Act.
23(B) Your
Lordships may be pleased to hold and declare that since the Hon’ble
Labour Court, Baroda under Section 13 of the Industrial Disputes Act
and has rendered its awards, which are unchallenged, unmodified and
not set aside, the action of the respondent authorities seeking to
terminate the services of the petitioners who have award in their
favour from the Labour Court, Baroda, is illegal, arbitrary, against
the awards which have been passed under Section 13 of the I.D. Act,
therefore, also the notices are illegal, arbitrary, unconstitutional
without jurisdiction and the same are required to be set aside by
holding and declaring the same to be non est in the eye of law.
Against
present petition, Affidavit-in-reply is filed by respondent No.2
Nagarpalika raising number of contentions including maintainability
of petition and also stating that petitioners are having alternative
effective remedy and also raised contention that disputed question of
facts are involved and petitioners have not challenged the order
passed by Labour Court as well as also stated that appointment of
petitioners are not approved by State Government and without prior
permission of State Government, such petitioners are not to be
appointed by Nagarpalika, therefore, appointment of petitioners
cannot be said legally and therefore, such appointments would be
wrongfully. According to Nagarpalika, since the appointment of
petitioners are not regularised so far and appointments were made
without following any procedure, and therefore, explanations were
sought for by Chief Officer on 12th July 2007. One
Shilpaben Maheshbhai Shah, who was elected as a Member of Committee,
made a complaint against earlier body which has committed several
irregularities in Nagarpalika and she made a complaint to Vigilance
Officer, Gujarat State that to inquire about the appointment made in
Nagarpalika by earlier body and take necessary action against them.
It was directed to submit report by Nagarpalika about appointment
made of petitioners. According to Nagarpalika, such appointment is
illegal, unjust, improper and not in accordance with law, therefore,
action taken by authority is just and proper.
As
per cause title, this petition is preferred under the provisions of
Industrial Disputes Act, 1947 and in the matter of Awards of Labour
Court, Vadodara. The contention raised before this Court that order
of one month notice dated 27th November 2009 issued by
Respondent Nagarpalika is violating Section 25F of Industrial
Disputes Act, 1947. Looking to entire petition and prayers as well as
averments made in this petition and averments made in
Affidavit-in-reply filed by Respondent No.3 Nagarpalika as
referred above, if termination is found to be illegal or contrary to
Section 25F of Industrial Disputes Act, 1947, then, petitioner is
having effective alternative statutory remedy under provisions of
Industrial Disputes Act, 1947. The petitioner can raise industrial
dispute under Section 2A of ID Act against such termination which can
be referred for adjudication to Labour Court concerned where Labour
Court is competent having jurisdiction to decide legality and
validity of termination order. When right has been flowing from
particular Statute in violating particular Section, then, naturally,
the remedy is available to petitioner under that particular Statute.
It is also necessary to note that one month notice dated 27th
November 2009 received by employee petitioner. Thereafter, first
time, petitioner has approached this Court on 8th December
2009 and first order has been passed by this Court on 11th
December 2009. The writ of mandamus cannot be issued by this Court
unless petitioner first approach the concerned authority. This law is
settled that unless and until first petitioner approached to
authority and if authority is not giving any response or reaction,
then, writ petition can be filed by concerned petitioner. That view
has been taken by Division Bench of Rajasthan High Court in case of
Balwant Singh Parihar & Anr. v. Union of India & Ors.
reported in 2006
LAB I.C. 2081.
The relevant Para 19 is quoted as under :
19. From
the record of the writ petition, it appears that the petitioners have
neither given any representation to the Pay Commission nor to the
Union of India nor Railway Administration nor given any notice for
demand of justice and straightway filed the writ petition fro seeking
mandamus in the matter of pay parity contrary to the well established
principle of law that giving notice for demand of justice is sine qua
non for seeking writ of mandamus. The writ petition deserves to be
dismissed on this ground alone as there was no occasion for the
respondents to consider the grievance of the petitioners of claim of
parity in pay scale and also consider the objection of the
respondents in reply of interference by the High Court under Article
226 of the Constitution of India in such matters. In the judgments
cited by the counsel for the petitioners, it is nowhere laid down
that the Court should evaluate the job for the purpose of grant of
equal pay for equal work. On the contrary, in some of the judgments
of the Supreme Court cited on behalf of the petitioners also and in
the other judgments, it has been repeatedly held by the Supreme Court
that it is not for the Court to make job evaluation for the purpose
of considering the equation of post and parity in pay scale and it is
for the Pay Commission, the expert body and the Government to
consider and decide. Thus, it would not be proper for this Court to
make an enquiry in the matter of equation of post as well as grant of
equal pay scale in absence of any representation to the respondents
or Pay Commission and findings thereon. Therefore, we may observe
that it is open for the petitioner to make a representation to the
respondents/Pay Commission as and when it is constituted in the
matter of parity in pay scale and it is further expected from the
respondents/Pay Commission to consider the same and pass the
appropriate order.
The
Apex Court, in case of Secretary,
Minor Irrigation & Rural Engineering Services, U.P. and Others v.
Sahngoo Ram Arya and Another reported
in 2002
SCC (L&S) 775,
wherein, it is held that 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 bypass the said Tribunal. In
an appropriate case after entertaining the petition 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 bypass the said Tribunal in the first instance itself.
Therefore, there is no infirmity in this case in the order of the
High Court directing the writ petition before it to approach the UP
Public Services Tribunal. Therefore, similarly, writ petition is not
maintainable without approaching to Respondent Nagarpalika, State
Authorities and Director of Municipalities. It is an undisputed fact
that no approach has been made by petitioner before filing petition
before this Court. The alternative effective remedy is available with
petitioner to challenge the termination order if it is found to be
illegal and contrary to Section 25F of ID Act, 1947.
The
Apex Court has considered the same question in case of State
of U.P. & Anr. v. U.P. Rajya Khanij Vikas Nigam S.S. & Ors.
reported in 2008(9)
SCALE Page-1.
The relevant observations are made in Para 31 and 50 to 53, which are
quoted as under :
31. The
learned counsel for the appellants contended that the High Court was
wholly wrong in entertaining a petition under Article 226 of the
Constitution and in not relegating the writ petitioners to avail of
alternative remedy available under the Industrial Law. It was also
submitted that disputed questions of fact were involved in the
petition which could not be appropriately dealt with and decided in
exercise of extraordinary jurisdiction by a writ court and on that
ground also the Court ought to have directed the writ petitioners to
approach an appropriate forum. Moreover, no action of retrenchment
of employees had been taken and, as such, the writ petition was
premature and not maintainable.
50.
In our considered view, however, all
such
actions could be examined by an appropriate Court/Tribunal under the
Industrial Law and not by a writ Court exercising power of judicial
review under Article 226 of the Constitution. If the impugned action
of the Corporation of retrenchment of several employees is not in
consonance with law, the employees are certainly entitled to relief
from an appropriate authority. If any action is taken which is
arbitrary, unreasonable or otherwise not in consonance with the
provisions of law, such authority or Court/Tribunal is bound to
consider it and legal and legitimate relief can always be granted
keeping in view the evidence before it and considering statutory
provisions in vogue. Unfortunately, the High Court did not consider
all these aspects and issued a writ of mandamus which should not have
been done. Hence, the order passed and directions issued by the High
Court deserve to be set aside.
51. For
the foregoing reasons, the appeal deserves to be allowed and the
order passed by the High Court is liable to be set aside and is
accordingly set aside.
52. Since
we are of the view that one of
the
Hon’ble Judges of the Division Bench of the High Court which decided
the matter at the initial stage was right in relegating the
petitioners
to avail of alternative remedy under the Industrial Law and as we
hold that the High Court should not have entertained the petition and
decided the matter on merits, we clarify that though the writ
petition filed by the petitioners stands dismissed, it is open to the
employees to approach an appropriate Court/Tribunal in accordance
with law and to raise all contentions available to them. It is
equally open to the Corporation and the State authorities to defend
and support the action taken by them. As and when such a course is
adopted by the employees, the Court/Tribunal will decide it strictly
in accordance with law without being influenced by the fact that the
writ petition filed by the writ petitioners is dismissed by this
Court.
53. The
appeal is allowed accordingly. Considering the facts and
circumstances of the case, however, there shall be no order as to
costs.
It
is also necessary to note that petitioners are not appointed by
Nagarpalika after following statutory recruitment rules as per
contentions raised in Affidavit-in-reply filed by Respondent No.3
Nagarpalika.
Therefore,
on both grounds, according to my opinion, present petition is not
maintainable and cannot be entertained by this Court wherein disputed
question of facts are involved.
Therefore,
this petition is accordingly disposed of by this Court without
expressing any opinion on merits. Interim relief granted by this
Court, if any, shall stand vacated.
The
request made by learned advocate Mr. Mishra to continue the interim
relief for some period, cannot be granted because once petition
itself is not maintainable and not entertained by this Court,
question of granting or continuing any interim relief further in
favour of petitioner does not arise.
[H.K.
RATHOD, J.]
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