Shri Dharam Pal vs The Principal & Others
2009 Latest Caselaw 3252 Del

*           HIGH COURT OF DELHI: NEW DELHI

          Judgment reserved on: August 11, 2009
          Judgment delivered on: August 19, 2009

+                        W.P. (C) No. 7210/2009
                          C.M. No. 2871/2009

      Shri Dharam Pal                   ...  Petitioner
                Through: Mr. I.A. Usmani, Advocate.

                                 Versus

      The Principal & Others             ...  Respondents
                Through: Ms. Raavi Birbal, Advocate for
                          Respondent No. 1 and 2.
                          Mohd. Saajid, Advocate for
                          Respondent No. 3.

CORAM:

HON'BLE MR. JUSTICE SUNIL GAUR

1.    Whether the Reporters of local papers may
      be allowed to see the judgment?

2.    To be referred to Reporter or not?

3.    Whether the judgment should be reported
      in the Digest?

SUNIL GAUR, J.

*

1. Petitioner is a Laboratory Assistant in the Respondent-

school. Vide order of 18th February, 2008, (Annexure-A),

Respondent- school has called upon the Petitioner to deposit

the educational qualification certificate of matriculation

issued by the U.P. Board within ten days, otherwise, the

Petitioner would be treated to have retired from service on

W.P. (C) No. 7210/2009 Page 1 the basis of police verification report regarding the age of

the petitioner. Petitioner in his application of 23rd November,

1979, for the employment with the Respondent-School, is

said to have referred to matriculation certificate issued by

U.P. Board, regarding his age proof.

2. The challenge to the impugned order (Annexure-A) by

the Petitioner is on the ground that the Police Report giving

the age of the Petitioner as 30 years as on 29th March, 1978,

cannot be the basis to illegally retire the Petitioner and the

so-called application of 23rd November, 1979 produced by

the Respondent - School is fabricated one as the Petitioner

has not passed the matriculation examination from the UP

Board, but had qualified it from Hindi Vishwavidyalaya,

Allahabad. According to the Petitioner, the particulars

(Annexure-H) are correct and the age of retirement of the

Petitioner is 60 years, i.e., the Petitioner is to retire in

January, 2013 and he is being illegally made to retire vide

impugned order as he is a President of the Registered

Employees Union of the Respondent - School and the

Management of the Respondent - School is annoyed with the

Petitioner because the Petitioner is engaged in genuine trade

union activities. According to the Petitioner, Charter of

W.P. (C) No. 7210/2009 Page 2

3. demand of the Employees Union of the Respondent -

school is pending before the Industrial Tribunal at

Karkardooma Courts, Delhi and the Management of the

Respondent - school has forced the Petitioner and his

colleagues to withdraw the said petition from the Industrial

Tribunal. Petitioner alleges malafide against the Respondent

- School and claims that he is being victimized for the trade

union activities undertaken by him.

4. While entertaining this petition, operation of the

impugned order (Annexure-A) was stayed as after almost

three decades, Petitioner was sought to be superannuated

vide impugned order.

5. The Respondent - School in its counter affidavit has

taken a preliminary objection of this writ petition being not

maintainable as the appropriate remedy under the law is

available to the Petitioner under the Industrial Disputes Act,

1947. In the rejoinder filed by the Petitioner, it is simply

stated that this Court has the jurisdiction to entertain this

petition.

6. After having heard counsel for the parties and on

perusal of material on record and the judgments cited, I find

that it is not in dispute that Petitioner is a workman under

W.P. (C) No. 7210/2009 Page 3 the Industrial Disputes Act and as per section 2(k) of the

Industrial Disputes Act, the present dispute relating to term

of employment of the Petitioner is covered by the 'Industrial

Disputes', as defined under the Industrial Disputes Act.

7. The Industrial Disputes Act is a comprehensive and self

contained Code. The dispute raised herein regarding age of

the Petitioner is a mixed question of fact and law, which

cannot be gone into in these proceedings. The question as to

whether the application for appointment made by the

Petitioner on 23rd November, 1979 is forged or fabricated is

also essentially a question of fact, which cannot be gone into

in these proceedings and the same requires to be proved

before the appropriate Forum.

8. In Chandrama Singh vs. Managing Director, U.P.

Cooperative Union, Lucknow & Ors., 1991 Labour

Industrial Cases 2413, on the question of alternate

remedy, it has been held as under:-

"13. The decision of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the Petitioner has got an alternative remedy and such remedy is not pleaded and proved to be W.P. (C) No. 7210/2009 Page 4 inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the Petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India". The Petitioner must furnish material facts and particulars to sustain such a plea."

9. However, counsel for the Petitioner relies upon a

decision of the High Court of Punjab & Haryana, rendered in

the case of 'Jog Dhian vs. Financial Commissioner, Haryana

and others', 2005 (1) RCR 658, to contend that once this

Court finds that injustice has been done to a party, then in

exercise of its jurisdiction under Article 226 of the

Constitution of India, it is always open to undo the same, as

the power under Article 226 of Constitution of India ought to

be exercised for the purpose of doing justice between the

parties.

10. Afore referred case of Jog Dhian (Supra) is of no avail to

the Petitioner as this Court would certainly refrain to

W.P. (C) No. 7210/2009 Page 5 exercise its jurisdiction under Article 226 of Constitution of

India, where disputed questions of facts are raised, as in the

present case. Since efficacious alternate remedy is available

to the Petitioner, therefore, this Court refrains from

exercising its jurisdiction under Article 226 of the

Constitution of India.

11. Without expressing any opinion on merits on the

controversy raised herein, this petition is dismissed with

liberty to the Petitioner to avail of the alternate remedy by

invoking the provisions of Industrial Disputes Act, 1947,

within two weeks from today and it is expected that the

concerned Court would decide Petitioner's application for

stay of the impugned order (Annexure-A) within six weeks of

the filing of the application/petition against the impugned

order.

12. In the peculiar facts of this case, the interim order of

March 2, 2009, passed by this Court shall remain operative

for a period of six weeks from today. It is made clear that the

concerned court has to decide Petitioner's application for

stay un-influenced by the interim order passed by this Court

and strictly on merits, as and when such an application is

made.

W.P. (C) No. 7210/2009 Page 6

13. With above said directions, this petition and pending

application stands disposed of.

14. A copy of this order be given dasti to the Petitioner.

15. No costs.

SUNIL GAUR, J.

August 19, 2009
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