Chet Ram vs Union Of India
1998 Latest Caselaw 514 Del

ORDER

K. Ramamoorthy, J.

1. The petitioner has filed the writ petition seeking to set aside the verbal order of termination dated 16.05.1997 and for a mandamus directing the respondents to implement the Office Memorandum dated 29.01.1992. The case of the petitioner briefly stated is thus.

2. He was appointed as a Casual worker in the canteen which is run by it with effect from 06.02.1997 through Employment Exchange. Within three months from the date of appointment his services were dispensed with. The second respondent had filed the reply denying the allegations. The second respondent had stated that the petitioner was only a casual worker and he had no right to remain in service as he was neither appointed to any sanctioned post nor has the petitioner acquired any right to hold the casual post when that is not required by the second respondent. The second respondent has also stated that the proper remedy of the petitioner is to raise an industrial dispute if so advised and the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The Second respondent has referred to the following cases:

(1) Hanuman Prasad Vs. , (2) Pushpa Gupta Vs. CMD Engineers India Ltd. 1995 LLR 102 and (32) D.P. Singh Vs. EPI 1995(1)AD (Delhi) 478.

3. The learned counsel for the petitioner in his attempt to get over the preliminary objections raised by the second respondent relied upon the judgment of the Supreme Court reported in Bombay Telephone Canteen Employees' Association, Prabhadevi Telephone Exchange Vs. Union of India and Another wherein the Supreme Court had observed:

On the overall view, we hold that the employees working in the statutory canteen, in view of the admission made in the counter- affidavit that they are holding civil posts and are being paid monthly salary and are employees, the necessary conclusion would be that the Tribunal has no jurisdiction to adjudicate the dispute on a reference under Section 10(1) of the Act. On the other hand, the remedy to approach the constitutional court under Article 226 is available. Equally, the remedy under Section 19 of the Administrative Tribunals Act is available. But, generally, the practice which has grown is to direct the citizen to avail of, in the first instance, the remedy under Article 226 or under Section 19 of the Administrative Tribunals Act have to this Court etc. thus, in view of the admission made by the respondents in their counter-affidavit that the workmen of the appellant-Association are holding civil posts and are being paid monthly wages and benefits and are considered to be employees, the jurisdiction of the Industrial Tribunal stands excluded. It is open to the aggrieved party to approach the Tribunal in the impugned judgment is legal and warrants no interference. It is open to the respondents to avail of such remedy as is available to a regular employee including the right to approach the Central Administrative Tribunal or the High Court of this Court thereafter for redressal of legal injury.

In the instant case the petitioner was only a casual employee and appointed through the exchange employment and that he has not established that he has holding civil post and therefore, he cannot rely upon the judgement of the Supreme Court.

4. The learned counsel for the petitioner also referred to the judgment of the Supreme Court reported in Air India Statutory Corporation and Others Vs. United Labour Union and Others to show how the petitioner had been dealt in an arbitrary fashion and the action of the second respondent is subject to the judicial review under Article 226 of the Constitution. The fact that the action of the 2nd respondent is subject to the judicial review cannot be dispusted. The action being subject to put in to the labour court is also an action being subject to the judicial review. Therefore, the judgement of the Supreme Court has not answered the preliminary questions raised by the petitioner.

5. The position is well settled that when a party has got an effective alternative remedy, it is a matter of discretion of the High Court in exercising its powers. On the facts and circumstances of the case, I am not able to exercise my discretion in favour of the petitioner to admit the writ petition when the petitioner can move the appropriate authorities for the dispute being referred to the Labour Court for adjudication.

6. Reserving the rights of the petitioner to move under the Industrial Dispute Act, 1947, the writ petition is dismissed.

7. The learned counsel for the petitioner submitted that the costs of Rs. 1000/- imposed by this court had not been paid by the second respondent. Today learned Senior counsel Mr. A.K. Sikri has paid a sum of Rs. 1000/- to the learned counsel for the petitioner in court.

There shall be no order as to costs.