Rajinder Singh vs Delhi Sikh Gurdwara ...
2011 Latest Caselaw 3069 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                        Date of decision: 4th July, 2011
+                                             W.P.(C) 236/2010
         SATPAL SINGH                                                 ..... Petitioner
                                      Through:      Mr. Raj Kumar Sherawat, Adv.
                                              Versus
         DELHI SIKH GURDWARA MANAGEMENT COMMITTEE
         & ANR                                ..... Respondents
                      Through: Ms. Manpreet Kaur Bhasin, Adv.
                               for DSGMC.
                                                 AND
+                                            W.P.(C) 5365/2010
         SURINDER KAUR                                               ..... Petitioner
                     Through:                       Mr. Raj Kumar Sherawat, Adv.
                           Versus
         SRI GURU TEGH BAHADUR INDUSTRIAL
         TRAINING CENTRE & ANR                ..... Respondents
                      Through: Ms. Manpreet Kaur Bhasin, Adv.
                                for DSGMC.
                                                AND
+                                           W.P.(C) 5992/2010
         RAJINDER SINGH                                              ..... Petitioner
                      Through:                     Mr. Baljit Singh & Mr. Ajai Kumar,
                                                   Advocates.
                                              Versus
         DELHI SIKH GURDWARA MANAGEMENT
         COMMITTEE & ORS                     ..... Respondents
                      Through: Ms. Manpreet Kaur Bhasin, Adv.
                               for DSGMC.

W.P.(C) Nos.236/2010,5365/2010 &5992/2010                                      Page 1 of 12
 CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                             Yes
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                     Yes

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

RAJIV SAHAI ENDLAW, J.

1. The very maintainability of the writ petitions is for adjudication.

2. The petitioner in W.P.(C) No.236/2010 claims to have been

employed as Office Superintendent with the respondent No.2 Sri Guru

Tegh Bahadur Industrial Training Centre; he claims that he was issued a

letter dated 13th August, 2009 relieving him from the respondent No.2

Centre and directing him to report to the General Manager of the

respondent No.1 Delhi Sikh Gurdwara Management Committee

(DSGMC); that though he reported to the General Manager of the

respondent No.1 but was neither given any duty nor has been paid any

wages thereafter. The writ petition has been filed impugning the order

dated 13th August, 2009 and seeking mandamus for reinstatement and for

payment of wages etc. Notice of the petition was issued and the pleadings

got completed. The respondent No.2 Centre in its counter affidavit has

stated that since the respondent No.2 Centre was being closed down, the

process of transferring its employees to various Institutes / Centres run by

the respondent No.1 DSGMC according to their respective qualifications

and available vacancies was commenced; that the petitioner herein is

surplus and could not be adjusted anywhere inspite of attempt; that the

petitioner has also been absenting himself since 6th July, 2009 without any

intimation whatsoever and did not even report for duty as directed and is

habituated to unauthorized absence and is also guilty of serious

misconduct. Rejoinder has been filed by the petitioner to the said counter

affidavit. No counter affidavit has been filed by the respondent No.1

DSGMC. Though the parties were referred to the Mediation Cell of this

Court but without any success.

3. The petitioner in W.P.(C) No.5365/2010 claims to have been

employed with the respondent No.1 Sri Guru Tegh Bahadur Industrial

Training Centre as a „Sewadarini‟ and her grievance also is that though she

was vide letter dated 13th August, 2009 relieved from the respondent No.1

Centre and asked to report to the respondent No.2 DSGMC but inspite of

reporting to respondent No.2 DSGMC, has not been given any duty. She

seeks mandamus to the respondents to give her posting and to pay her

arrears of salary etc. Notice of the writ petition was issued. No counter

affidavit has been filed by the respondents till the question of

maintainability of the writ petition was suo moto raised by the Court.

4. The petitioner in W.P.(C) No.5992/2010 claims to have been

employed as a „Granthi‟ with the respondent No.1 DSGMC and claims that

on 25th November, 2009 he was suspended for alleged misbehaviour with

saints but neither any inquiry was conducted against him nor any

subsistence allowance being paid to him. He has filed this writ petition

impugning the order of his suspension and also impugning the order dated

12th July, 2010 ordering inquiry into the charges against him. He also

seeks mandamus for reinstatement. Notice of the petition was issued. The

respondents have filed a counter affidavit pleading that the petitioner is a

habitual offender and has a chequered history and justifying the order of

suspension and inquiry into the charges against the petitioner.

5. The counsels for the petitioners were asked to address on the

maintainability of the writ petitions and have addressed their arguments.

They have contended that the DSGMC, of which each of the petitioners is

an employee, is a statutory body having been constituted vide Section 3(1)

of the Delhi Sikh Gurdwaras Act, 1971 (Gurdwaras Act). Attention is

invited to Section 24 of the said Act whereunder the control, direction and

general superintendence over all the Gurdwaras and Gurdwara property in

Delhi has been vested in the DSGMC and DSGMC has also been

empowered to manage educational and other institutions. Attention is also

invited to Section 36 of the Act deeming inter alia the members of

DSGMC, the Executive Board or any other Sub-Committee and every

other officer and employee of the DSGMC to be public servants within the

meaning of Section 21 of the Indian Penal Code. Attention is also invited

to Section 40(2)(f) of the Act whereunder the terms and conditions of

service of employees of DSGMC are stated to have statutory force. The

counsels for the petitioners have also referred to several writ petitions

entertained by this Court against DSGMC. However, they agree that the

question of maintainability was neither raised nor adjudicated in any of the

said petitions. The counsels for the petitioners however referred to the

judgment dated 22 nd July, 2010 of this Court in WP(C) No. 720/2010 titled

DSGMC Vs. Mohinder Singh Matharu holding that DSGMC is a Body

made by law and is a public authority within the meaning of Section 2(h)

of the RTI Act. Reference is also made to judgment dated 18 th January,

2011 of this Court in W.P.(C) No.5093/1998 titled All India Garment

Exporters Common Cause Guild Vs. Union of India holding that

Apparels Export Promotion Council exercising public functions is

amenable to the jurisdiction of the High Court under Article 226 of the

Constitution of India. Attention is yet further invited to:

(a) K. Krishnamacharyulu Vs. Sri Venkateswara Hindu College

of Engineering 1997 SCC (L&S) 841 laying down that when

there is an interest created by the Government in an institution

to impart education, the teachers who impart the education get

an element of public interest in the performance of their duties

and are entitled to invoke the writ jurisdiction.

(b) Andi Mukta Sadguru Shree Muktajee Vandas Swami

Suvarna Jayanti Mahotsav Smarak Trust Vs. V.R. Rudani

(1989) 2 SCC 691 laying down that to be enforceable by

mandamus, a public duty does not necessarily have to be one

imposed by statute and it is sufficient for the duty to have

been imposed by charter, common law, custom or even

contract. It was further held that the judicial review over the

fast expanding maze of bodies affecting the rights of the

people should not be put into water-tight compartments and

technicalities should not come in the way of granting relief

under Article 226 of the Constitution.

(c) Judgment dated 4th October, 2004 of the Division Bench of

this Court in Rahul Mehra Vs. Union of India holding Board

of Control for Cricket in India (BCCI) to be amenable to writ

jurisdiction.

(d) Zee Telefilms Ltd. Vs. Union of India (2005) 4 SCC 649

holding that Bodies which are creature of statute are amenable

to writ jurisdiction.

6. The counsel for the respondent DSGMC on the contrary contended

that the petitioners ought to invoke the remedy of the Industrial Disputes

Act and relies upon orders in two writ petitions preferred against DSGMC,

withdrawing the writ petitions to pursue the remedy under the Industrial

Disputes Act, 1947.

7. The counsels for the petitioners rejoined by contending that it is not

the case of the petitioners that they are workmen.

8. The counsel for the respondent DSGMC has also referred to the

Employees Service Regulations, 1992 of DSGMC enacted in exercise of

powers conferred under Section 40(2)(f) of the Gurdwaras Act and has

drawn attention to the provisions of appeal, revision and review therein. A

copy of the resolution dated 9th February, 2010 of DSGMC constituting

Justice (Retd.) T.S. Doabia as the Appellate Authority has also been

handed over.

9. Though as aforesaid, the question of maintainability of writ petitions

against DSGMC was raised but on studying the Gurdwaras Act, I find that

Part V thereof deals with "Settlement of Election and Other Disputes" and

Sections 32 & 33 under the said Part are as under:

"32. The Court of the District Judge in Delhi shall also have jurisdiction in respect of the following matters, namely:-

(c) Petitions regarding complaints, irregularities, breach of trust, mismanagement in any Gurdwara, educational or other institutions against any member, office-bearer or officer or other employee of the Committee.

(d) Petitions arising out of any type of disputes between the Committee and its employees including past employees.

(e) Applications regarding failure of publication of, or non-implementation or non-clearance of the objections raised in, any annual report of the auditors of the Committee.

33. (1) Any person aggrieved by an order passed by the District Judge may, within sixty days of the order, prefer an appeal to the High Court at Delhi and the orders of the High Court on such appeal shall be final and conclusive.

(2) The provisions of Section 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under this Section."

10. It would thus be seen that the jurisdiction over disputes between

DSGMC and its employees including past employees, as the disputes

subject matter of the present petitions are, is first of the District Judge,

Delhi and the Act also provides for a remedy to this Court against the

orders of the District Judge.

11. The Act, on the basis of which writ remedy is invoked against the

respondent DSGMC, having itself provided a remedy for the disputes as

subject matter of these writ petitions, in my view, the writ petitions would

not be maintainable on this ground alone. The remedy of the

petitioners is before the District Judge. The Act having provided a

complete machinery for adjudication of the disputes as raised by way of

present writ petitions, the writ petitions would not be maintainable. It is

the settled principle of law that this Court would ordinarily not exercise

jurisdiction under Article 226 when alternative, efficacious remedy is

available. The present petitions in any case raise disputed questions of fact

and which can be appropriately adjudicated in proceedings before the

District Judge rather than in the present jurisdiction. I have already in

Sh. Gurdeep Singh Vs. President, Delhi Sikh Gurdwara Management

Committee MANU/DE/2013/2011 taken a view that owing to the said

Section 32 of the Act, the writ remedy is barred.

12. Though I have not found any case law qua Sections 32 & 33 (supra)

of the Gurdwaras Act but I find that the Division Bench of this Court in

Gurdeep Singh Dua Vs. Delhi Sikh Gurdwara Prabandhak Committee

59 (1995) DLT 115 in relation to Section 31 of the Act providing for the

jurisdiction of the District Judge qua election disputes, held that ordinarily

the writ remedy would not be available in the face of the alternative

remedy having been provided in the Statute itself. The Supreme Court in

Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee

(2006) 8 SCC 487 in relation to Section 31 has also held that the

appropriate remedy is to prefer an election petition and unless exceptional

or extraordinary circumstances are disclosed justifying recourse to

extraordinary remedy under Article 226, the same would not be

maintainable.

13. I do not find any reason to take a contrary view qua Section 32.

14. I also find that the Employees Services Regulations (supra) of

DSGMC provide for appeal against all penalties imposed. Thus the

remedy of the petitioners is first by preferring the departmental appeal

provided for under the Employees Service Regulations and if still remain

aggrieved, to approach the District Judge under Section 32 (supra) of the

Act and not by way of these writ petitions.

15. The writ petitions are accordingly dismissed as not maintainable.

However, having not found any earlier judgment on the aforesaid aspect, it

is directed that subject to the petitioners approaching the Departmental

Appellate Authority within 30 days of today or if do not deem

Departmental Appellate Authority to be appropriate, the District Judge

within 45 days of today, the Departmental Appellate Authority and / or the

District Judge, as the case may be, shall entertain the appeal / petition

notwithstanding the same being barred by time / delay.

No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) JULY 4, 2011/„gsr‟