Gujarat High Court
Shaileshkumar Ramanbhai Patel vs Principal - Shri Babadev Industrial ... on 16 April, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/14184/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14184 of 2015
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SHAILESHKUMAR RAMANBHAI PATEL
Versus
PRINCIPAL - SHRI BABADEV INDUSTRIAL TAINING CENTRE
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Appearance:
MR SL VAISHYA(960) for the PETITIONER(s) No. 1
MR. D.M.DEVNANI, AGP for the RESPONDENT(s) No. 2
MR CHIRAG B PATEL(3679) for the RESPONDENT(s) No. 1
NOTICE SERVED(4) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 16/04/2018
ORAL ORDER
1. Heard learned advocate for petitioner and Mr. Patel, learned advocate for respondent no.1 and Mr. Devnani, learned AGP for respondent nos.2 and
3.
2. In this petition, the petitioner has prayed, inter alia, that:
"9(B) Your Lordships may kindly be pleased to pass order and quashed and set aside the order of Respondent dtd. 16/6/2015 and direct to the respondent not to remove from his post and he should be continue in service with salary.
(C) Your Lordships may kindly be pleased to pass order regarding the interim relief that the petitioner should not remove from his service and he should be restore in his service and he should be allow to come as a worker as he was doing till the final disposal of the writ petition with his regular salary and all benefits which he was getting as per law."
3. The respondent no.1 is a training institute.
Page 1 of 18 C/SCA/14184/2015 ORDER4. The petitioner claims that he was employed by respondent no.1 as craft instructor on fixed salary basis with the respondent no.1
5. According to learned advocate for petitioner, he worked as craft instructor, with respondent no.1 institute, from January, 2009 till June, 2015 and the respondent no.1 terminated his service in June, 2009.
6. The respondent no.1 claims that the petitioner was in habit of remaining absent from duty without any prior intimation and without seeking leave i.e. he was habitual absentee and used to remain unauthorisedly absent for long period.
6.1 The respondent no.1 also claims that in view of his conduct several notices were issued however the petitioner did not improve his conduct and continued to remain unauthorisedly absent from duty.
6.2 The respondent no.1, in his affidavit, has also raised several allegations against the Page 2 of 18 C/SCA/14184/2015 ORDER petitioner including allegations about misconduct and misusing internet facility for personal surfing, habit of unauthorised absence for long duration etc. 6.3 It is also claimed that the petitioner neither submitted any reply in response to the notice nor improved his conduct.
6.4 According to respondent no.1, ultimately the Institute was left with no option but to terminate the service of the petitioner and that therefore vide order date 16.9.2015 the petitioner's service came to be terminated for reasons mentioned in the said notice.
6.5 It is also claimed that before terminating service of the petitioner, as many as 15 notices were issued and opportunity to improve conduct was given to the petitioner.
7. On this count, the respondent no.1, in its affidavit has averred and stated that:
"5(a) The petitioner was served with number of Show Cause Notice with his attendance in which the respondent No.1 has asked the petitioner to clarify the situation of his unauthorised absence from duty. Copies of the Show Cause Notices issued right from 28.05.2012 to 29.07.2013 are Page 3 of 18 C/SCA/14184/2015 ORDER appended hereto and marked as AnnexureI collectively to the present affidavitinreply.
(b) I say that the respondent no.1 has also given sincere warning on 25.4.2013 and 29.04.2013 but the petitioner has deliberately neither given any reply to any show cause notices nor he has become regular and the petitioner has not mentioned these facts in the memo of the petition which is suppression of material facts and same is going to the root of the case. Hence, the petition deserves to be dismissed on such non disclosure of material facts.
(c) I submit that the petitioner is ultimately working under the government via the respondent No.1 and the respondent no.3 had also informed to the respondent No.1 vide letter dated 19/11/2013 to follow up the rules, otherwise it will be the sole responsibility of the management of the respondent No.1. Copy of such letter dated 19/11/2013 is appended hereto and marked as AnnexureII to the present affidavitinreply.
(d) The present petition deserves to be dismissed as the petitioner was appointed as Craft Instructor in the respondent No.1 and instead of attending the class, the petitioner used to sit in the chamber of the respondent No.1 institute and surfing internet and using the telephone and making heavy loss to the respondent No.1.
The respondent No.1 is imparting education for the poor and downtrodden students has got difficulty for incurring expenses for administration due to excess usage of telephone and internet by the petitioner. Copy of the notice dated 10/12/2013 sent by the respondent No.1 to the petitioner is appended hereto and marked as Annexure III to the present affidavitinreply. I further say that the respondent No.1 has also sent notice dated 31/12/2013 to the petitioner. Copy of the notice dated 31/12/2013 is appended hereto and marked as Annexure IV to the present affidavitinreply. Even otherwise several miscellaneous notices instructing the petitioner to follow up the educational programme were sent to the petitioner which will tender before this Hon'ble Court at the time of hearing and the petitioner has also neither replied nor responded to the same.
6. I submit that the respondent No.1 has sent notice petitioner for the unauthorised use of telephone and internet even in the year 2015 along with the copy of the bill and the petitioner has neither paid the bill nor responded to the same. Therefore, as a last resort, the respondent no.1 has been constrained to send notice at AnnexureA to the petition on 16/06/2015 as ultimately for such unauthorised absence, the government has to pay the salaries and without any reason the management of the respondent No.1 can be put at stake due to the negligent activities of the petitioner.
7. I also manifest that the petition is also having a Maruti Van and taking passengers from Baroda to Kawant Page 4 of 18 C/SCA/14184/2015 ORDER for which the petitioner is being paid enough by these passengers for his daily service from Baroda to Kawant and back. Hence, the petitioner is also doing side business and during the working of the institute the petitioner is used to busy with the internet surfing and telephone instead of taking class and all these details have been provided to te respondent no.3 and therefore, the petitioner was given the notice for dismissal from service and even otherwise, due to his gainful employment, the petitioner is not interested to carry on this duty and for such negligence and gainful employment, the Government treasury cannot be fastened with such liability atleast through the respondent No.1. Therefore, such notice at AnnexureA to the petition was issued to the petitioner. The petitioner himself has stopped coming and attending to the respondent No.1 even prior to the issuance of the notice at AnnexureA to the petition."
8. As mentioned above, the petitioner has raised challenge on the ground that the respondent no.1 institute terminated his service illegally and without following procedure prescribed by law.
9. From the rival allegations and contentions it emerges that present petition raises and involves several issues of disputed facts and determination thereof would necessitate examination of not only documentary evidence but also oral evidence by witnesses from both sides.
The said process is not feasible and practicable in writ proceedings.
10. Despite the fact that several disputed facts Page 5 of 18 C/SCA/14184/2015 ORDER are involved and despite the fact that alternative remedy is available to the petitioner, the petitioner has, instead of availing alternative remedy, taken out this petition.
10.1 In this context, reference may be made to the decision in case of State of M.P. v.
Nerbudda Valley Refrigerated Products Company Pvt. Ltd. & Ors. [AIR 2010 SC 2859] wherein Hon'ble Apex Court has, in para12 observed that : "12) In Punjab National Bank vs. O.C. Krishnan & Ors., (2001) 6 SCC 569, this Court held: "6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act." (emphasis supplied) Page 6 of 18 C/SCA/14184/2015 ORDER 10.2 In the decision in case of United Bank of India v. Satyawati Tondon & Ors. [AIR 2010 SC 3413], Hon'ble Apex Court considered the issue related to statutory remedy and / or justification for entertaining writ petition under Article 226 of the Constitution of India where the petitioning litigant, despite statutory remedy being available, did not approach statutory remedy and instead preferred writ petition. Hon'ble Apex Court observed in the said decision that: "19. In Thansingh Nathmal v. Superintendent of Taxes (1964) 6 SCR 654, theConstitution Bench considered the question whether the High Court of Assam should have entertained the writ petition filed by the appellant under Article 226 of the Constitution questioning the order passed by the Commissioner of Taxes under the Assam Sales Tax Act, 1947. While dismissing the appeal, the Court observed as under:
"The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary:
it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain selfimposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy.Page 7 of 18 C/SCA/14184/2015 ORDER
Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
25. In Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and another (2010) 4 SCC 772, the Court was dealing with the issue whether the alternative statutory remedy available under the Foreign Exchange Management Act, 1999 can be bypassed and jurisdiction under Article 226 of the Constitution could be invoked. After examining the scheme of the Act, the Court observed:
"31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a goby by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction.
10.3 In the decision in case of Bank of Baroda vs. Balbir Kumar Paul and other (2010 (2) GLH
790) the Division Bench of this Court has observed that:
7. It is not in dispute that orders passed by the Recovery officer were appealable under Section 30 of the said Act. Section 30 of the said Act reads Page 8 of 18 C/SCA/14184/2015 ORDER as follows :
"30. Appeal against the order of Recovery Officer .............
7.1 In view of availability of statutory appeal under the Act, we are of the opinion that ordinarily this Court would not entertain a writ petition before the person aggrieved has availed of such alternative remedy.
8. From the decision of Learned Single Judge, no reasons are forthcoming to indicate why the petition was entertained without insisting on the petitioner availing of such statutory appeal. As observed by the Apex Court in case of Punjab National Bank v. O.C. Krishnan and others (supra) when the statutory appeal is available, writ petition would normally not be entertained."
10.4 In recent decision in case of Sri Siddeshwara Cooperative Bank Ltd. (supra) the Hon'ble Apex Court has observed that: "30. In Satyawati Tondon[1], the Court was concerned with an argument of alternative remedy provided under Section 17 of SARFAESI Act. Dealing with this argument, the Court had observed that where an effective remedy was available to the aggrieved person, the High Court must insist that before availing the remedy under Article 226 the alternative remedies available to him under the relevant statute are exhausted. In paragraphs 43,44 and 45 (pg. no. 123) of the Report, the Court stated as follows : "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasijudicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must Page 9 of 18 C/SCA/14184/2015 ORDER insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.
44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of selfimposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.
45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."
31. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented."
10.5 In LPA No. 1708 of 2009 and allied matters, the Division Bench, while referring the decision in case of Union Bank of India vs Satyawati Todon, observed that: "12. The aforesaid issue fell for consideration before the Supreme Court in the case of United Bank of India vs. Satyawati Tondon reported in (2010) 8 SCC
110. Therein, the Supreme Court held that issuance of notice to guarantormortgagor u/Sec.13(2) and (4) Page 10 of 18 C/SCA/14184/2015 ORDER and filing an application u/Sec.14 of the SARFAESI Act without first initiating action against the principal borrower is permissible. In the said case, the Supreme Court also noticed that there was alternative remedy of appeal u/Sec.17, which could have been availed by any aggrieved person, and held that the High Court will ordinarily not entertain the petition under Article 226 of the Constitution, if an effective remedy is available to the aggrieved person, and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In the said case, the Supreme Court held as follows: "42. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression 'any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.
"43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute".
Page 11 of 18 C/SCA/14184/2015 ORDER13. In view of the settled principle under the SARFAESI Act, it is always open to the secured creditor to take measures u/Sec.14, 13(4) against a guarantor, without initiating any action against the principal borrower, as both stand in the same footing of borrower, and action can be taken against any one or other borrower, we hold that it was well within the jurisdiction of the secured creditor to take separate action against the principal borrower and/or to settle the issue with such principal borrower, and a separate action against the guarantor, and/or to settle with the guarantor. In case the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or the Rules framed thereunder are violated, it will be always open to the aggrieved person to assail such action or measures taken by secured creditor by filing appeal u/Sec.17 before the Debt Recovery Tribunal. Learned Single Judge, thereby, having refused to exercise jurisdiction under Article 226, there being a remedy of appeal, no interference is called for against such order. The appellantpetitioner is given liberty to move before the Debt Recovery Tribunal, if it is aggrieved, within a reasonable period, say within a month. The Letters Patent Appeal and the connected Civil Application are dismissed with the aforesaid observations, but there shall be no order as to costs."
10.6 A profitable reference may also be made to the observation by Hon'ble Apex Court in the decision in case of Commissioner of Income Tax v/s. Chhabildas[(2014) 1 SCC 603] wherein Hon'ble Apex Court has observed, inter alia, that:
"12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable Page 12 of 18 C/SCA/14184/2015 ORDER relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. [See: N.T. Veluswami Thevar vs. G. Raja Nainar, Municipal Council, Khurai vs. Kamal Kumar, Siliguri Municipality vs. Amalendu Das, S.T. Muthusami vs. K. Natarajan, Rajasthan SRTC vs. Krishna Kant, Kerala SEB vs. Kurien E. Kalathil, A. Venkatasubbiah Naidu vs. S. Chellappan, L.L. Sudhakar Reddy vs. State of A.P., Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, Pratap Singh vs. State of Haryana, and GKN Driveshafts (India) Ltd. vs. ITO.
13. In Nivedita Sharma vs. Cellular Operators Assn. of India, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
"12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of selfimposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). "7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 44041, para 11) "11. ... It is now well recognised that where a right or liability is created by a Page 13 of 18 C/SCA/14184/2015 ORDER statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) "77. ... So far as the jurisdiction of the High Court under Article 226--or for that matter, the jurisdiction of this Court under Article 32--is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
(See: G. Veerappa Pillai v. Raman & Raman Ltd., CCE Page 14 of 18 C/SCA/14184/2015 ORDER v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, H.B. Gandhi v. Gopi Nath and Sons, Whirlpool Corpn. v. Registrar of Trade Marks, Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh, Punjab National Bank v. O.C. Krishnan,
14. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed:
"8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23).
"23. ... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded.""
15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of Page 15 of 18 C/SCA/14184/2015 ORDER grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In present case, any exception recognized by Hon'ble Apex Court is not made out and that therefore, there is nothing to persuade this Court to entertain this petition instead of relegating the petitioner to alternative remedy.
10.7 It emerges from the above mentioned judicial pronouncements and precedents that when statutory appeal remedy is available the writ Court would relegate the petitioning litigant to the statutory remedy. The writ Court would exercise strict control and highest degree of restrain and would decline to entertain petition when statutory remedy is available".
11. Having regard to above mentioned aspect and in view of the fact that alternative remedy is available and also for the reason that the adjudication of the dispute would require oral and documentary evidence, the petition does not Page 16 of 18 C/SCA/14184/2015 ORDER deserve to be entertained this Court is not inclined to entertain present petition.
12. Learned advocate for respondent no.1, so as to oppose this petition tried to rely on the decision in case of M.S.Kazi v. Muslim Education Society [2018(1) GLR 659.
13. However, at this stage it is not necessary to consider the said decision inasmuch as the Court is not inclined to entertain present petition at this stage for above mentioned reasons.
14. It is necessary to note that after hearing the petitioner and while calling respondent no.1 to answer the petition, this Court recorded following observation in the order dated 4.9.2015:
"Aggrieved by the action of the respondent no.1 of removing him from service, the petitioner Craft Instructor has approached this Court. There are various allegations and irregularities in performance of his duty. According to the petitioner, he has never received any notice nor any opportunity of hearing; as is required under the law. Prima facie, it appears that the petitioner has not replied to any of the notices served upon him. According to the petitioner he had been appointed initially on contractual basis and on completion of five years' period, he would be entitled for absorption on a permanent post."Page 17 of 18 C/SCA/14184/2015 ORDER
15. For above mentioned reasons, the petition is not entertained.
16. It is clarified that the Court has not entered into the merits of the dispute and the subject matter of present petition. It is further clarified that if the petitioner avails alternative remedy the learned Tribunal/ Learned Court may consider the grievance of the petitioner on merits in accordance with law and without being influenced by the fact that this Court has not entertained present petition. It is also clarified that the petition is not entertained only on limited ground namely available of alternative remedy and that the petition involves and raises issues of disputed fact.
(K.M.THAKER, J) saj Page 18 of 18