JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The petitioner was working as Asstt. Clerk in Bhatni unit of the U.P. State Sugar Corporation Ltd, in district Deoria.
3. On account of planned thefts of goods approximately amounting to Rs. 2.23 lacs during the period 20th July 2004 to 26th July 2004 by employees working in the store room of the Bhatni unit of the respondent-Corporation, F.I.R. was lodged on 26.7.2004 at Police Station Bhatni, district Deoria.
4. A domestic enquiry was also conducted against eight employees of the store including the petitioner. The enquiry officer submitted his report on 13.8.2004 to the General Manager. In the enquiry report, it was found that after closure of the crussing season, brass items etc., were got stored in the store room, which fact was verified by the then Chief Engineer and that as the theft in the stores was in a planned manner, which could not have been possible without the connivance of the employees including Sri Haq the petitioner. It was further found in the report that in the entire circumstances, involvement of Sri Amit Kumar Das, the Store Incharge, Sri Haq, the petitioner, Peons, namely Sri Munni Lal, Mumtaz and Bhanu Pratap Singh who were responsible for keeping lock and key of the store cannot be ruled out.
5. The enquiry officer also found that on consideration of the statements of employees of the Store room, that all employees who were posted in the Store room fall within the zone of suspicion as second key was within the knowledge of everyone. Sri Amit Kumar Das who was store incharge used to maintain lock and key. Despite sealed lock and protected walls and roof, theft was committed for which Sri Das was mainly the responsible person as the second key was found in the drawer without locked and this was known to everyone. This shows their carelessness. Sri Haq, the petitioner has himself admitted that in the absence of Sri Das, he was fully responsible for locking and opening the lock as well as to get brought the keys from residence. The first information regarding theft was given by him when he opened the store for delivery of some goods. The lock and key were stolen at that very point of time and its theft raises a doubt.
6. After considering the report, the General Manager passed the following order in respect of the petitioner:-
^^ esjs }kjk tkWp ls lEcfU/kr lEiw.kZ dk;Zokgh dk xgurk ls ifj'khyu fd;k x;k rFkk tkWp vf/kkjh }s; dh tkWp vk[;k dk Hkh v/;;u fd;k x;k A eSa tkWp ds lEcU/k esa dh xbZ dk;Zokgh ls lUrq"V gwW fd tkWp vf/kdkjh }s; }kjk lHkh lEcfU/kr vkjksfir deZpkfj;ksa dks viuk dFku izLrqr djusa ,oa lk{;ksa dk ijh{k.k @ izfrijh{k.k djusa dk iw.kZ volj iznku fd;k x;k A blds lkFk gh esjs }kjk Hkh tkWp dk;Zokgh ds lanHkZ esa vfUre fu.kZ; ysusa ds iwoZ vkjksfir deZpkfj;ksa dks dkj.k crkvks uksfVl tkjh fd;s x;s A bl izdkj leLr tkWp dk;Zokgh fof/k leer < ax ls iw.kZ dh xbZ A LVksj ls pksjh x;s ihry ds lkekuksa ds lEcU/k esa Hkh ih,uflag iz eq[; vfHk;Urk ,oa orZeku LVksj izHkkjh ls izkIr fooj.k ds vuqlkj fey esa ihry vkfn egaxs lkeku [kksydj LVksj ls fey cUnh ds dqN dh fnuksa ipk;r dbZ frfFk;ksa esa tek djk;s x;sa A izkIr fooj.k ds vuqlkj LVksj esa lkeku tek djusa dh frfFk ,oa LVksj esa dke djusa okyksa dk laf{kIr fooj.k fuEuor gS%& dzla uke inuke lkeku tek djkus dh frfFk 1& Jh vferdqekj nkl izHkkjh LVksj 22&3&2004 2& larks"k dqekj oekZ lgLvksjdhij 12&3&04]25&3&04 ,oa 12&4&04 3& fodkl dqekj fyfid 4& t; izdkl nqcs fyfid 17&3&2004 ,oa 20&7&2004 &&&&& &&&&& tkWp vk[;k ,oa tkWp ls lacf/kr vfHkys[kksa] vkjksfir deZpkfj;ksa ds vius cpko esa fn;s x;s c;ku ,oa Li"Vhdj.k ds ifj'khyu ds mijkUr eSa bl fu"d"kZ ij igqWpk gwW fd tkWp vf/kdkjh }s; }kjk tkWp dk;Zokgh ;/kfi fof/k lEer < ax ls iw.kZ dh xbZ gS rFkkfi viuk fu"d"kZ nsusa esa iw.kZ foosd dk iz;ksx ugh fd;k gSA tkWp vf/kdkjh }s; }kjk brusa vkjksi ds ckotwn Hkh viuh tkWp vk[;k esa ujeh cjrh xbZ gSA vr% vkjksfir deZpkfj;ksa dk fuEukuqlkj nf.Mr fd;k tkrk gSA &&&&& 5& Jh ,uwy gd] fyfid tkWp vf/kdkjh dh tkWp vk[;k ,oa dkj.k crkvksa uksfVl ds lanHkZ esa fn;s x;s Li"Vhdj.k ,oa vfHk;U=.k foHkkx ls izkIr fjiksVZ ftldk mYys[k mij fd;k x;k gS fd Jh ,uwy gd }kjk LVksj esa dk;Zjr jgrs gq, fey ls [kksy dj vk;s ihry ds lkekuksa dks LVksj dh vfHkj{kk gsrq izkIr fd;k vr% os LVksj ls pksjh gq, lkeku ds izdj.k esa nks"keqDr ugha fd;s tk ldrs gS vkSj bl izdkj budh Hkh lafyIrrk mruh gh gS ftruh fd LVksj izHkkjh dh vr% budh Hkh lsok;sa lekIr djusa ;ksX; gS rFkkfi izdj.k esa ekuoh; n`f"Vdks.k viukrs gq, bUgsa fuEukuqlkj nf.Mr fd;k tkrk gSA v Jh gd dh ,d osruo`f) LFkkbZ #i ls jksdh tkrh gSA c bdkbZ dks gqbZ {kfr dh HkjikbZ gsrq Jh gd ds mij : 36000 @& dk vFkZ n.M vkjksfir fd;k tkrk gS tks bdkbZ Lrj ij budks ns; osru ls izfrekg : 1000 @& dVkSrh dj iw.kZ fd;k tk;sxk A vkjksfir vFkZ n.M dh izfr iwfrZ ds iwoZ Jh gd dh lsok;sa fdlh dkj.k lekIr gks tkrh gSa rks vo'ks"k /kujkf'k dks budh xzsP;wVh vkfn ls izfriwfrZ dh tk;sxhA l Jh gd dks fuyacu vof/k ds vo'ks"k osru dk Hkqxrku ns; ugha gksxkA**
7. The petitioner remained in Police custody for 12 hours on 12.8.2004 and from 28.8.2004 to 31.8.2004.
8. The petitioner moved appeal which appears to have remained pending for some time. The petitioner then filed Civil Misc. Writ No. 56864 of 2005 which was disposed of vide judgment dated 12.9.2005 with the direction that the appeal be decided by the appellate authority within three weeks of filing of the certified copy of the judgment. Consequently, was dismissed from service vide impugned order dated 23.4.2005, the appeal preferred by the petitioner was decided by impugned order dated 6.10.2005 holding that:-
^^12& mijksDr ls ;g fofnr gksrk gS fd tkWp dh izfdz;k fu;ekuqlkj lEiUu dh xbZ vkSj jktdh; bdkbZ }kjk pksjh x;h lkekuksa dh osYU;wos'ku vkSj HkjikbZ lUnsg ds ?ksjs esa vkus okys dfeZpksa ls djus ds vkns'k ikfjr fd;s x;s A mu dfeZ;ksa dks lUnsg ds ?ksjs esa fy;k x;k ftudh pksjh x;s lkeku ls lh/kk laca/k vFkok ftu ij muds }kjk j[k j[kko dh lh/kh ftEesnkjh Fkh A 13& Jh gd ds vihy esa cy ugha gS vr% bls [kkfjt fd;k tkrk gSA g viBuh;a fnukad 6&10&2005 bZ'oj fo'oukFk izHkkjh izcU/k funs'kd**
9. The standing counsel has raised a preliminary objection that the petitioner has an alternate and efficacious remedy before the Labour Court/Industrial Tribunal in view of the decision in Chandrama Singh v. Managing Director, U.P. co-operative Union Lcunow and Ors. (1991) 1 UPLBEC (2) 898 and as the controversy in this case requires adjudication of facts, writ petition is not the proper remedy. He has also relied upon the decision in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. (2005) 107 FLR 729 wherein entire case law as to whether High Court is justified in interfering in writ petition when alternative remedy is available under the Industrial Disputes Act, has been considered by Hon'ble the Supreme Court.
10. The counsel for the petitioner has urged that alternate remedy is not an absolute bar and has relied upon the decision rendered in Whirlphool Corporation v. Registrar of Trade Marks, Mumbai and Ors. 1998(8) SCC- in support of his contention.
11. After considering the entire law and decisions of Constitution Benches in G. Verappa Pillai v. Ramand and Raman Ltd. ; Assistant Collector of Central Excise v. Dunlop India Ltd. ; Ramendra Kishore Biswas v. State of Tripura and Ors. ; C.A. Abraham v. I.T.O. Kottayam and Ors. ; Titaxhar Paper Mills Co. Ltd. v. State of Orissa and Anr. ; H.B. Gandhi v. Gopinath and Sons 1999 (Suppl) 2 SCC-312; Whirlpool Corporation v. Registrar of Trade Marks and Ors. ; Tin Plate Co. of India Ltd. v. State of Bihar and Ors. ; Sheela Devi v. Jaspalsinsh and Punjab National Bank v. O.C. Krishnan and Ors. , the Hon'ble Supreme Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction under Article 226 of the Constitution of India. Also after considering the law laid down in U.P. State Bridge Corporation Ltd, and Ors. v. U.P. Rajya Setu Nigam S. Karmachan Sangh 2004(100) FLR-1020 : 2004(16) AIC-692 and State of Himachal Pradesh and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. 2005(6) SCC-499, Hon'ble Suprme Court concluded as under:-
19. Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the writ petition. Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this Court is slow to interfere merely on the ground of availability of alternative remedy. But the facts of the present case have special features, which warrant interference.
12. The law has been firmly enunciated that if a person approaches High Court without exhausting the alternative remedy available to him, it has to be ensured by the Court that he has a very very strong case for requesting the Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution as the remedy of writ is purely discretionary. High Court may exercise its extraordinary jurisdiction if it comes to the conclusion that alternative remedy is not efficacious and that the Court is not required to adjudicate or to give finding of fact which necessarily requires adducing of oral and documentary evidence before the Court below. The writ petitioners, in such circumstances, are bound to give reasons and make out a strong case as to why alternative remedy is not efficacious. Merely stating that principles of natural justice have been violated or that procedures have not been followed may not be good ground for interference by High Court. The reason is obvious. If the employer has not adopted prescribed procedures or has violated principles of natural justice, the employee may agitate such irregularities under the machinery provided under the Industrial Disputes Act.
13. The contention of counsel for the petitioner that the High Court should interfere in order passed in flagrant violation of the principles of natural justice, without relegating to alternate remedy, has no force. The Hon'ble Supreme Court has laid guiding principles in this regard in paragraph 60 of Delhi General and Cloth Mill . They are :-
(i) If no domestic enquiry had been held by the management, or if domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it.
(ii) If a domestic enquiry had been held, it is open to the management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case, no inference can be drawn, without anything more that the management has given up the enquiry conducted by it.
(iii) When the management relies on the enquiry conducted by it, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal, in the first instance to consider whether the enquiry proceedings conducted by the management are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it, on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence.
(iv) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However, elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as n preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make further application, after holding a proper enquiry, and deprive the workman of the benefit of the Tribunal itself being satisfied on evidence adduced before it, that he was or was not guilty of the alleged misconduct.
(v) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are proper.
(vi) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held property, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it.
(vii) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act.
14. In Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by Hon'ble the Apex Court in paragraphs 23 and 24 of the judgment which are as under:-
23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:
(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.
24. We may, however, in relation to Principle No. 2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No. 2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No. 3 stated above.
15. In Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. 1995 (V) SC-75, Hon'ble the Supreme Court has held that the question whether disputes involving observance, recognition or enforcement of rights and obligation created under the Industrial Disputes Act or its sister enactments such as Payment of Wages Act, Payment of Gratuity Act, Factories Act, Workmen Compensation Act etc. including Industrial Employment (Standing Orders) Act, which do not provide any special ad indicatory forums are 'industrial dispute' within the meaning of Section 2(k) or Section 2A of Industrial Disputes Act or that such disputes treated as industrial disputes shall not be adjudicated by any other the forum except created by Industrial Disputes Act, i.e. and they shall be adjudicated only by forums created under the said Act.
16. To the same effect is the decision of Hon'ble the Apex Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. , wherein it has been held that: -
11. These appeals are preferred against the order made by the High Court of Judicature at Allahabad in Civil Misc. WP No. 47130 of 2000 etc. on 1-2-2001. A Division Bench of the High Court of Allahabad by the impugned judgment has held that the petitioner in the said writ petitions has an alternate remedy by way of petitions before the U.P. Public Services Tribunal (the Tribunal), and had permitted the writ petitioner therein to approach the Tribunal and directed the Tribunal to entertain any such petition to be filed by the writ petitioner without raising any objection as to limitation. There was a further direction to the Tribunal to decide the matter expeditiously.
17. It is true that some exceptions have been carved out by Hon'ble the Apex Court in a catena of decisions one of which is violation of principles of justice. However, in U.P. State Spinning Co. Ltd. (supra), Hon'ble the Supreme Court after relying upon a catena of Constitution Bench decisions has cautioned that High Court should interfere in writ jurisdiction only when a very very strong case has been made out for not availing of alternative remedy and approaching the High Court bypassing hierarchy of the Courts. No such case as to why alternative remedy available to the petitioner is not efficacious has been made out by the petitioner in the instant petition, what to say of a very very strong case for interference in writ jurisdiction. It is not a case where pure question of law is to be determined.
18. In the instant case, questions of facts are to be determined on the basis of evidence. The controversy involved in the instant case require findings of fact by adjudication/determination of the controversy on the basis of evidence, which is not feasible under Article 226 of the Constitution of India, as such the petitioner may approach High Court only after exhausting alternative remedy. From perusal of paragraph 15 of the decision rendere in the case of M/s. Whirlphool (supra), it is evident that the jurisdiction of the High Court is discretionary which is also the dictum of other cases cited above. Since the petitioner is being relegated to alternate and efficacious remedy under Industrial Disputes Act, 1947, this Court is not entering into enter into the controversy which requires findings of fact on the basis of evidence.
19. For the reasons stated above, the petition is dismissed on ground of alternate remedy. However, in the interest of justice, it is directed that in case petitioner raises an industrial dispute the same be brought to a logical end at the earliest possible by the Conciliation Officer and if no amicable settlement is arrive at, the matter be immediately forwarded to the State Government for reference of the dispute to the competent Labour Court/Industrial Tribunal, as the case may be. On receipt of the reference the concerned Labour Court/Industriai Tribunal shall make all endeavour to decide the reference preferably within six months from the date of its receipt in accordance with the Rule 12 of the Industrial Disputes Rules.
20. No order as to costs.