Rajasthan High Court - Jaipur
Roshan Lal Saini vs Rajasthan Housing Board Jaipur on 30 January, 2013
Author: Ajay Rastogi
Bench: Ajay Rastogi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR D.B.SPECIAL APPEAL (WRIT) NO.1337/2012. Roshan Lal. VERSUS Raj. Housing Board. Order reserved on ::: 28/01/2013. Date of Judgment ::: 30/01/2013. HON'BLE MR.JUSTICE AJAY RASTOGI HON'BLE MR.JUSTICE JAINENDRA KUMAR RANKA Mr.Roshan Lal Saini, appellant in person. Mr.A.K.Gupta, along with Mr.Rinesh Gupta, for the respondent. ***** BY THE COURT: Per Hon'ble Mr.Ajay Rastogi, J.
This intra-court appeal has been filed by appellant-petitioner assailing the order of learned Single Judge dated 18th September, 2012 passed on the misc. application filed for recalling of order dated 4th January, 2006 and review order dated 12th October, 2006 after the special appeal preferred against the aforementioned orders came to be dismissed in D.B.Special Appeal (Writ) No.1330/2006 vide judgment dated 7th February, 2007.
As it reveals from the record, the appellant-petitioner initially joined services as Junior Assistant in April, 1980 and was promoted to the post of Junior Accountant in January, 1992. For the alleged delinquency committed by him, the appellant-petitioner was chargesheeted and finally he was dismissed from service vide order dated 3rd January, 2003 and the departmental appeal preferred by appellant-petitioner also came to be dismissed vide order dated 18th June, 2004, that came to be challenged by the appellant-petitioner by filing Civil Writ Petition No.4551/2004 which was dismissed vide order dated 4th January, 2006 on the preliminary objection raised by the respondent that since he has got an efficacious alternative remedy of raising an industrial dispute before appropriate forum, no interference is called for by the court under Article 226 of the Constitution. As it further reveals from the record, against the order dated 4th January, 2006, the appellant-petitioner preferred D.B.Special Appeal (Writ) No.116/2006 that he withdrew on 11th September, 2006 and thereafter appellant-petitioner filed a review application before the Single Bench of this court and that came to be rejected on 12th October, 2006 against which a composite Special Appeal (Writ) No.1330/2006 was preferred by the appellant-petitioner that was dismissed on 7th February, 2007.
During intervening period, the appellant-petitioner approached the Conciliation Officer and after a failure report was sent by him, the matter was referred by the appropriate Government which is pending adjudication before the Labour Court being LCR No.38/2011. Pending dispute before the learned Labour Court, appellant-petitioner was advised to file application for recalling of both the orders dated 4th January, 2006 and 12th October, 2006 and that came to be rejected by the learned Single Judge vide order dated 18th September, 2012.
The appellant-petitioner appearing in person submits that no effective progress has taken place in the proceedings pending before the learned Labour Court and respondents have raised an objection that he is not a workman and industrial dispute is not maintainable. At the same time, when he preferred the writ petition there was an objection raised by the respondent that remedy is available to him under Industrial Disputes Act, the relevant extract from reply filed by the respondent in CWP No.4551/2004 reproduced hereunder:-
Preliminary objection with respect to the maintainability of the writ petition That the writ petition so preferred by the petitioner is not maintainable in view of the fact that an efficacious and alternative remedy under the provisions of Industrial Dispute Act exists. However without exhausting that remedy, petitioner preferred this writ petition. It is necessary to submit that petitioner was working only on the post of Junior Accountant and is not discharging any managerial or supervisory duties, hence, the petitioner is governed by the provisions of Industrial Disputes Act.
The appellant-petitioner submits that he must have at least some remedy under the law against impugned action of the respondents but the respondents are raising two diametrical opposite pleas at both the places and if that is being permitted, the appellant-petitioner would remain remediless and would not be permitted to get his grievance ventilated in any of the forum available to him.
The learned Single Judge taking note of the submissions also observed that the respondents have raised written objection in the reply regarding availability of alternative remedy to the appellant under the Industrial Disputes Act and once this plea was raised and this court dismissed that writ petition on the ground of availability of alternative remedy under Industrial Disputes Act, 1947 and the appellant availed remedy before the Labour Court the respondents are certainly estopped and cannot be allowed to raise plea regarding maintainability of industrial dispute pending consideration before the learned Labour Court but the fact still remains that after the order which he intended to recall passed by the learned Single Judge dated 4th January, 2006 and review order dated 12th October, 2006 have been examined by the Division Bench in D.B.Speacial Appeal (Writ) No.1330/2006 and that came to be rejected vide order dated 7th February, 2007, application filed by the appellant for recalling of the aforesaid orders, in our opinion, was not maintainable and this is what the learned Single Judge observed while rejecting the applications under order impugned.
We also find substance in his apprehension that if he is up-routed by the learned Labour Court on upholding the preliminary objection of the respondent that he is not a workman and remedy under Industrial Disputes Act, 1947 is not available that will make him remediless and will bring him to a square one at the stage when he initially filed the writ petition before this Court (year 2004) and taking note of his apprehension, we would like to observe that once the writ petition filed by the appellant came to be dismissed vide order dated 4th January, 2006 taking note of the preliminary objection raised by the respondent regarding availability of alternative remedy to him under Industrial Disputes Act, 1947, we are of the view that such plea is not available to the respondent and it is expected by the Ld. Labour Court to examine the reference sent by the appropriate Government which is pending consideration in LCR No.38/2011 on merits. At the same time, we would further like to observe that since he was removed from service way back on 3rd January, 2003 and his grievance could not have been ventilated as yet, we consider it appropriate to direct the learned Labour Court No.1, Jaipur to expedite and decide the reference arising from LCR No.38/2011 expeditiously in accordance with law but in no case later than six months.
Copy of this order may also be sent to the learned Labour Court for necessary compliance. The appeal with the above observations, stands disposed of.
(JAINENDRA KUMAR RANKA),J. (AJAY RASTOGI),J. All corrections made in judgment/order have been incorporated in the judgment/order being emailed. Solanki DS, P.A.