SCA/7337/2008 9/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7337 of 2008 ========================================================= MANJULABEN DHIRAJLAL JOSHI - Petitioner(s) Versus KODINAR MUNICIPALITY & 1 - Respondent(s) ========================================================= Appearance : MR TR MISHRA for Petitioner(s) : 1, MR YV SHAH for Respondent(s) : 1, Ms.V.S.Pathak, Asstt.GOVERNMENT PLEADER for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 12/09/2008 ORAL ORDER
Heard
learned counsels for the parties.
The
petitioner has approached this Court under Art.226 of the
Constitution of India, seeking writ of mandamum or any other
appropriate writ, order or direction to the respondents for
complying with the order of this Court and resinstating the
petitioner.
Rule.
Learned counsel Mr. Shah waives service of rule.
The
facts, in brief, deserve to be set out as under :
The
petitioner who was serving as a Teacher came to be terminated and,
hence, she raised industrial dispute which came to be decided on
27-1-2000 wherein the respondents were directed to reinstate the
petitioner and treat her temporary for five years and, thereafter,
ordered to be permanent and entitled for all consequential benefits.
This award of Industrial Tribunal was challenged by the
respondent-Municipality by preferrring Special Civil Application
No.2894 of 2000. It deserves to be noted at this stage that
Municipality though challenged the award, reinstated the petitioner
and terminated her services by way of discharge simplicitor.
Against this order, petitioner preferred Special Civil Application
No.2122 of 2002 wherein this Court (Coram : R.M.Doshit, J.) on
17-4-2002 passed an order allowing the petition and quashed and set
aside order dated 19-12-2001. The relevant portion thereof deserves
to be set out as under :
ýSIt
is, however, clarified that respondent Municipality shall be at
liberty to take disciplinary action against the petitioner, after
giving her an opportunity to show cause against the proposed action
and of hearing, if desired.ýý
Pursuant
to the order, the petitioner was reinstated but once again she was
terminated as per the say of the petitioner without following due
procedure of law and, therefore, she challenged the same by
preferring Special Civil Application No.11098 of 2003. It deserves
to be noted that Municipality also preferred Special Civil
Application No.2894 of 2000 this petition as well as petitioner’s
subsequent Special Civil Application No.11098 of 2003 were heard
together (Coram : Akil Kureshi, J.) on 30-8-2005 and 5-9-2005. The
award of Industrial Tribunal was quashed and set aside in light of
the decision of Hon’ble Apex Court in the case of Miss A.Sundarambal
v. Government of Goa, Daman & Diu & Ors. Reported in AIR
1988 SC 1700, but the Court allowed the petition being Special Civil
Application No.11098 of 2003 as the petitioner had been terminated
without following procedure of law. The Court quashed and set aside
impugned order dated 19-12-2001 and ordered necessary consequences
to follow, however, clarifying that Municipality shall be at liberty
to take action against the petitioner after giving her show cause
notice against the proposed action and of hearing, if desired. The
relevant portion deserves to be set out from order dated 30-8-2005
:
ýS3.In
so far as, Special Civil Application No.2894/2000 is concerned, the
short ground of challenge raised by the petitioner is that the
respondent was engaged as a school teacher and she was, therefore,
not a workman within the meaning of Industrial Disputes Act. It
was, therefore, contended that the Industrial Tribunal was not
competent to entertain the reference of the respondent. In view of
the decision of the Hon’ble Supreme Court in the case of Miss
A.Sundarambal v. Government of Goa, Daman & Diu & Ors.,
Reported in AIR 1988 SC 1700, learned advocate Mr. Mishra appearing
for the respondent is not in a position to controvert the
submissions of the petitioner. In that view of the matter, the
award of the Industrial Tribunal is required to be quashed and set
aside and petition is allowed without any order as to costs.
4.
The position of Special Civil Application No.11098/2003 is somewhat
different. The said petition pertains to the termination of the
petitioner school teacher sought to be brought about by the
respondent employer by order dated 13th September, 2003.
4.2
After the order passed by the Court on 17th April, 2002
petitioner was reinstated in service. However, immediately
thereafter, by the impugned order dated 13th September,
2002 she was once again terminated. In order dated 13th
September, 2002 it is indicated that the petitioner ws appointed
without proper procedure and is, therefore, required to be
terminated. This order dated 13th September, 2002 also
was not preceded by any show cause notice nor any opportunity of
being heard given to the petitioner. As noted earlier in the order
dated 17th April, 2002 filed by the petitioner
challenging her termination, learned Single Judge provided that
even if her services are to be terminated on the ground that she is
not qualified as a teacher or that she was regularly recruited, she
is entitled to defence before such order is passed. It was found
that since the order was passed without giving an opportunity of
showing cause or hearing the same canot be sustained. The Court
also kept the option open for the employer to take disciplinary
action against the teacher. In the present case, neither of these
two opportunities provided by the Court have been availed of.
Admittedly no disciplinary action is taken against the petitioner
before passing order dated 13th September, 2004. No
opportunity was given to the petitioner to represent her case
also. In view of the matter, the Municipality did not follow the
order passed by this Court between the same parties. Impugned order
of termination dated 13th September, 2002 is, therefore,
required to be and is hereby quashed and set aside with all
consequential effect.ýý
After
this order was passed, the petitioner had not been reinstated nor
has she been given any opportunity whatsoever. The petitioner was
informed by letter dated 27-10-2005 by the Chief Officer,
Nagarpalika, Kodinar that her application with regard to
reinstatement, she is informed that Nagarpalika has preferred Review
Petition and LPA and it is pending and, therefore, after the same is
decided, due compliance will be observed.
The
petitioner till date has not been reinstated and, therefore, she has
filed this petition.
Mr.
Mishra for the petitioner has submitted that the inaction on the
part of respondent-authority deserves to be depricated as despite
therebeing two orders by this Court calling upon the Municipality to
comply with the requirement of law, the Municipality has sat tight
over the situation and not reinstated the petitiner. In reply to the
contention with regard to availability of alternative remedy, Mr.
Mishra vehemently submitted that the remedy which is proposed to be
alternative remedy by the learned Counsel for the Municipality,
cannot be said to be alternative remedy so efficacious as to meet
with the end of justice. Mr.Mishra has relied upon the decision of
this Court in the case of Tulsiram Ramdas v. General Manager,
Western Railway, dated 28-4-1998 in Special Civil Application
No.7737 of 1997 (Coram : Hon’ble Mr.Justice K.G.Balakrishnan and
Mr.Justice J.M.Panchal, as Their Lordships then were). Mr. Mishra
read the observations made therein and submitted that the respondent
Municipality cannot be permitted to sit tight over the situation and
not comply with the order of this Court. Mr.Mishra also relied upon
the decision of Hon’ble Apex Court in the case of T.N.State
Transport Corporation v. Neethivilangan, Kumbakonam, reported in
2002 SCC (L&S) 40. Relying upon para-16 and observations made
therein, Mr. Mishra vehemently submitted that the petitioner cannot
be denied relief under the spacious plea of availability of so
called alternative remedy. Mr. Mishra relied upon the decision of
Hon’ble Apex Court in the case of Whirlpool Corporation v. Registrar
of Trademarks, Mumbai, reported in (1998) 8 SCC 1 and submitted that
relegating the petition to alternative remedy is self-imposed
restriction and the same cannot be availed of in all the case
uniformly. Mr.Mishra further relied upon the decision reported in
(2003) 2 SCC 107 in the case of Harbanslal Sahnia v.Indian Oil
Corporation Ltd. in support of his submission that if workman’s
wages are denied, then efficacious plea of alternative remedy
shall not be impediment in the exercise of jurisdiction under
Art.226 of the Constitution of India. Mr.Mishra further submitted
that rule 189 and rule 190 pressed into service by the learned
Counsel for the Municipality are merely procedural rules and
substantive petition under Art.226 of the Constitution of India
seeking mandamus cannot be said to be non-maintainable.
Mr.
Y.V.Shah for the respondent-Municipality very candidly stated at the
bar that LPA which was preferred challenging the decision of this
Court passed in group of applications being Special Civil
Application No.2894 of 2000 and Special Civil Application No.11098
of 2003, has been dismissed for default as objections were not
removed and, therefore, it has not been pursued. Review Application
was filed challenging the order dated 30-8-2005 passed by this Court
(Coram : Mr.Akil Kureshi, J.) in Special Civil Application No.2894
of 2000 and Special Civil Application No.11098 of 2003 but could not
point out the result thereof. He submitted, however, that
availability of alternative remedy which can be said to be
efficacious cannot be brushed aside lightly and in that view of the
matter, this petition is not maintainable. Relying upon the
decision of this Court in the case of Renumal V. Bijani v. Bantwa
Municipal Borough, repoted in 2002(3) GLH 570. Mr.Shah vehemently
submitted that the remedy available is execution and, therefore, the
petition deserves to be dismissed as not maintainable.
This
Court has heard learned advocates for the parties and perused the
papers pertaining to the matter. There cannot be any dispute with
the principle regarding exercising jurisdiction under Art.227 of the
Constitution of India when alternative remedy is available, is now
crystalized and hardly needs any elaborate discussion thereon. The
Court proposes to enlist undisputed facts and rival contentions of
the learned advocates for the parties with regard to maintainability
of the petition.
1)
The lady teacher was initially recruited as part time fixed pay
employee and her services were terminated and she had to move the
concerned Industrial Tribunal for raising industrial dispute and
she had to time and again visit Court of Law under different
litigations.
2)
The order of Industrial Tribunal has been set aside but prior
thereto, the order of this Court in Special Civil Application
No.2122 of 2002 is in her favour. Mr.Shah has submitted that this
order was complied with. In fact, even in this order dated
17-4-3003, this Court (Coram : R.M.Doshi, J.)clarified that
ýSrespondent Municipality shall be at liberty to take disciplinary
action against the petitioner, after giving her an opportunity to
show cause against the proposed action and of hearing, if desired.ýý
This order has not been challenged in any forum whatsoever and it
was interpreted by the Municipality as per its understanding and
terminated services of the petitioner admittedly without affording
any opportunity of hearing as provided by this Court in order dated
17-4-2002 passed in Special Civil Applcation No.2122 of 2002.
These
facts have been pleaded and, therefore, in aforesaid two petitions
being Special Civil Application No.2894 of 2000 and Special Civil
Application No.11098 of 2003 (Coram : Mr.Akil Kureshi, J.) in the
order dated 5-9-2005 specifically observed that impugned order which
according to the Municipality had been passed in due compliance of
their understanding of law, was made without affording opportunity
of showing cause or hearing the petitioner and, therefore, that
order had been quashed and set aside and directions were issued as
under :
ýSIn
that view of the matter, the Municipality did not follow the order
passed between the same parties. Impugned order of termination
dated 13th September, 2002 is, therefore, required to be
and is hereby quashed and set aside with all consequential effect.ýý
Thus,
this order has not been complied with by the Municipality in a given
case and peculiar facts and circumstances, this Court may decline to
exercise its jurisdiction under Art.226 of the Constitution of India
on the basis of availability of alternative remedy. One need not
lose sight of the fact that alternative remedy has to be efficacious
and effective remedy. In the instant case, it is not merely case of
seeking or praying for enforcing the order of Industrial Tribunal or
praying for contempt, it is a case where citizen has come forward
complaining about absolute careless attitude and scant disregard to
the order of this Court under the guise of so called interpretation
which prima facie appears to be absolutely unjust and intolerable.
The
decision cited at bar by Mr. Shah will have no applicability to the
facts and circumstances of the present case. As it is stated herein
above, it is not case of seeking compliance of the order passed by
the Industrial Tribunal. It is actually the conduct of the
Municipality which is being assailed by the citizen so as to seek
writ of mandamus to the Municipality to do its duty. Municipality
cannot deny that it has not been under obligation to comply with the
order of this Court. When the order of this Court has remained to
be complied with, writ of mandamus in light of the decision of
Hon’ble Apex Court is required to be issued and, therefore, this
petition deserves to be allowed and accordingly the same is allowed.
Respondent-Municipality
is hereby directed to comply with the order dated 5-9-2005 within
three months from today. However, there shall be no order as to
costs.
(S.R.BRAHMBHATT,
J.)
vijay*