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Delhi High Court
Shri Chand & Others vs Union Of India & Others on 15 September, 2000
Author: N.G.Nandi
Bench: N Nandi


ORDER

N.G.Nandi, J.

1. In this writ petition under Article 226 of the Constitution of India, the petitioner has been praying for the relief of restraining the respondents from terminating the services of the petitioners/workers and for direction to respondent No.2 to absorb/regularize the services of the petitioners/workers in their existing services/posts with effect from their initial appointment through the contractor with consequential relief of equal wages, etc.

2. The respondent, vide their counter, took a preliminary objection and contended that the petition is an abuse of the process of the court in as much as the present petitioners had earlier filed a Civil Writ Petition on the same alleged cause of action asking for the same relief as in the present petition and that the earlier writ petition was dismissed by this court vide order dated 5.5.1999 and the petitioners have in deliberate defiance of the earlier order filed the present writ petition asking for the same relief. The respondents, in this regard, have placed reliance on the decision in the case of State of U.P. & Another Vs. Labh Chand, and contended that as a judicial practice and procedure, the second writ petition should not be entertained by the court.

3. It is an admitted position that the present petitioners earlier filed C.W. P. No. 4310/98, copy whereof is produced at AnnexureD and prayed for order/direction holding that the petitioners/workman are working since long with respondent No.2 and be treated as regular employees of respondent No.1 and the respondents be also directed to pay the allowance and pay with all the regular employee of respondent No.1 and not to remove the petitioners from their services. The learned Single Judge, by his order dated 5.5.1999, copy whereof is at Annexure F, directed the petitioners to join/participate in the reference which has been made by the Government and pending before the Industrial Tribunal III and also observed that the petitioner union cannot maintain the writ petition and thus, disposed of the writ petition requiring the petitioner to approach Industrial Tribunal III for redressal of their grievances as the alternative remedy was available to the petitioners.

4. It may be noted at the outset that the petitioners neither filed LPA against the said order nor filed review application seeking review of the order requiring them to go to Industrial Tribunal III as the alternative remedy was stated available to the petitioners as per the order dated 5.5.1999 nor the petitioners approached the Industrial Tribunal III for redressal of their grievances as per order dated 5.5.1999.

5. Ms.Asha Jain Madan, learned counsel for petitioners, relying on the decision in the case of Paradip Port Trust Vs. SalesTax Officer & Others, contended that the present writ petition is maintainable/entertain able and that the question raised in this petition should be considered by the court.

In the case of Paradip Port Trust Vs. Sales Tax Officer & Others (supra), the question raised involved the interpretation of the words “transfer of the right to use any goods” in subclause (d) of Clause (29-A) of Article 366 of the Constitution and by the impugned order, the High Court had dismissed the writ petition on the view that the alternative remedy of an appeal against the order of assessment was available under the sales tax law and since the said remedy of an appeal against order of assessment is available the writ petition could not be entertained. The Supreme Court held that the High Court should have entertained the writ petitions and should have considered the said question instead of requiring the appellant to avail the remedy of appeal under the Sales Tax Act. Thus, it was in light of the question of interpretation of the words “transfer of the right to use any goods” in subclause (d) of Clause (29-A) of Article 366 and the Supreme Court held as above.

6. In the case of State of U.P. & Another Vs. Labh Chand (supra) considering the decision in the case of Daryao Vs. State of U.P., has held as under:-

“It is a well established salutary rule of judicial practice and procedure that an order of a Single Judge Bench or of a larger Bench of the same High Court dismissing the writ petition either on the ground of laches or nonexhaustion of alternative remedy, as well, shall not be by passed by Single Judge Bench or Judges of a larger Bench except in exercise of review or appellate powers possessed by it……….Second writ petition cannot be, so entertained not because the Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognised power. Besides, if a Single Judge could entertain a second writ petition of a person respecting a matter on which his first writ petition was dismissed in limine by another Single judge or a Division Bench of the same court, it would encourage an unsuccessful writ petitioner to go on filing writ petition after writ petition in the same matter in the same High Court, and have it brought up for consideration before one Judge after another. Such a thing, if is allowed to happen, it could result in giving full scope and encouragement to an unscrupulous litigant to abuse the process of the High Court exercising its writ jurisdiction under Article 226 in that any order of any order of any Bench of such court refusing to entertain a writ petition could be ignored by him with impunity and relief sought in the same matter by filing a fresh writ petition. This would only lead to introduction of disorder, confusion and chaos relating to exercise of writ jurisdiction by Judges of the High Court for their could be no finality for an order of the court refusing to entertain a writ petition. It is why, the salutary rule of judicial practice and procedure has come to be accepted and followed as salutary rule in exercise of writ jurisdiction of courts……..”

7. In my opinion, the principle laid down in the case of State of U.P. & Another Vs. Labh Chand (supra) will clinch the issue of entertaining the present writ petition and the present petition cannot be entertained following the salutary rule of judicial practice and procedure in exercise of writ jurisdiction of courts under Article 226 of the Constitution of India.

8. In the result, the petition is dismissed. The interim order dated 10.8.2000 stands vacated.


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