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LPA/1994/2004 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1994 of 2004
IN
SPECIAL
CIVIL APPLICATION No. 7355 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI Sd/-
HONOURABLE
MR.JUSTICE KS JHAVERI
Sd/-
======================================
1.
Whether
Reporters of Local Papers may be allowed to see the judgment ?
NO
2.
To
be referred to the Reporter or not ?
NO
3.
Whether
their Lordships wish to see the fair copy of the judgment ?
NO
4.
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
NO
5.
Whether
it is to be circulated to the civil judge ?
NO
======================================
MAHENDRAKUMAR
RAVJIBHAI RATHOD - Appellant
Versus
STATE
OF GUJARAT - Respondent
======================================
Appearance
:
MR
KISHOR M PAUL for Appellant.
MR NJ SHAH, AGP for
Respondent.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 06/09/2011
ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
We
have heard Mr. Kishor M. Paul, learned counsel for the appellant and
Mr. N. J. Shah, learned Assistant Government Pleader for respondent.
2. By
way of this Intra-Court Letters Patent Appeal, the appellant –
original petitioner has challenged the judgment and order dated
29.06.2004 passed by the Learned Single Judge in Special Civil
Application No.7355 of 2004 by which the Learned Single Judge has
dismissed the writ petition by holding that the appellant has
alternative efficacious remedy of raising Industrial Dispute.
3. The
appellant was appointed as peon on 01.09.1986. He was terminated by
order dated 18.04.1988. The appellant challenged the said order by
filing Reference (LCR) No.265 of 1990 before the Labour Court,
Rajkot. The Labour Court vide award dated 10.04.2011 allowed the
reference and granted reinstatement with 100% back wages. The
respondent challenged the said order by preferring writ petition
being Special Civil Application No.8912 of 2001. The Learned Single
Judge disposed of the writ petition on 16.01.2003 with a direction to
the respondent to deposit Rs.7,500/- and the matter was remanded back
to the Labour Court, Rajkot.
3.1 Thereafter,
the Labour Court passed award dated 15.12.2003 and held that the
appellant is entitled for reinstatement with continuity of service
and 50% back wages. In pursuance of the said award, the appellant
was reinstated on 04.05.2004. On 01.06.2004, the respondent issued
cheque of Rs.37,700/- in favour of appellant towards back wages.
Thereafter, the services of the appellant were terminated vide order
dated 09.06.2004. The appellant challenged the said termination
order by preferring Special Civil Application No.7355 of 2004. The
Learned Single Judge vide impugned judgment and order dated
29.06.2004 dismissed the said writ petition.
4. Learned
counsel for the appellant has placed reliance on the decision of the
Hon’ble Supreme Court in the case of Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 and
has urged that alternative remedy is not a constitutional bar to High
Court’s jurisdiction but is a self-imposed restriction.
It
is no doubt true that alternative remedy is no bar, but where there
are disputed questions of fact involved, in such a situation, the
finding of fact cannot be recorded by the High Court and it has to be
recorded by some other Court or Tribunal.
4.1. Learned
counsel for the appellant has further placed reliance on another
decision of the Apex Court in the case of Harbanslal Sahnia and
another v. Indian Oil Corporation Limited and others, (2003) 2 SCC
107 and on the strength of this judgment, he urged that where the
question of bread and butter of the workman is involved, in such
cases, alternative remedy would not be a bar.
We
have carefully gone through this judgment. It does not lay down the
proposition that in such cases, the Court should itself record a
finding of fact after considering the entire evidence and take
statement of witnesses etc. The proposition laid down by the Apex
Court is not disputed, but the principles are not applicable to the
facts of the instant case.
4.2. Learned
counsel for the appellant has further placed reliance on the decision
of the Apex Court in the case of Shri Anadi Mukta Sadguru Shree
Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and
others v. V. R. Rudani and others, AIR 1989 SC 1607 wherein the
Apex Court in paragraph 21 has held that mandamus is a very wide
remedy which must be easily available to reach injustice wherever it
is found.
This
decision also does not lay down the proposition that alternative
remedy is to be surpassed and finding of fact should be recorded by
High Court under Article 226 of the Constitution of India.
5. We
have gone through the impugned order of the Learned Single Judge. The
Learned Single Judge has specifically observed that there are large
number of disputed questions of fact involved in the petition and
therefore the writ petition would not be a proper remedy. Hence,
while holding that the appellant has alternative efficacious remedy
of raising Industrial Dispute, the Learned Single Judge has dismissed
the writ petition. It is no doubt true that alternative remedy is no
bar, but where there are disputed questions of fact involved, in such
a situation, the finding of fact cannot be recorded by the High Court
and it has to be recorded by some other Court or Tribunal.
6. For
the aforesaid reasons, we do not find any illegality in the impugned
judgment of the Learned Single Judge. This appeal is devoid of any
merit and is accordingly dismissed.
Sd/-
[V. M. SAHAI, J.]
Sd/-
[K. S. JHAVERI, J.]
Savariya
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