JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties and perused the record.
2. The petitioner has come up in this writ petition against the impugned orders dated 11.10.2004 and 17.6.2005 passed by the Deputy General Manager, Canara Bank. Disciplinary Action Cell, Gomti Nagar, Lucknow and the Branch Manager, Canara Bank, Kailora Branch, District Hathras respectively.
3. The brief facts of the case are that the petitioner was working as a Sub-Staff in Canara Bank and at the relevant time he was posted at the Kailora Banch. Aligarh of the Bank. He is alleged to have abused respondent No. 3 on 29.4.2003 who reported the matter to the higher authorities. Consequently orders for conducting enquiry proceedings were passed on 10.5.2003. A preliminary enquiry was conducted and a report was submitted. The petitioner submitted his clarification on 22.12.2003. A charge sheet was served upon the petitioner on 23.1.2004. Sri S.K. Khosla, the defence representative denied the charges levelled against the petitioner. After enquiry the Deputy General Manager of the Bank passed the impugned order dated 11.10.2004 for compulsory retirement of the petitioner. The petitioner filed an appeal against the order of compulsory retirement dated 11.10.2004 before the General Manager Disciplinary Authority who dismissed the appeal of the petitioner vide impugned order dated 17.6.2005.
4. Sri Tarun Verma Counsel for the respondents has raised a preliminary objection and submits that the petitioner has an alternate and expeditions statutory remedy which has not been exhausted by him.
5. In the case of Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke (supra) the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by the apex Court in paras 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 hot 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 unsnonsored 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.
6. In Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. 1995 (V) SC-75, the apex Court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947.
7. In Scooters India v. V. Vijai E.V. Eldred it has been held that where alternate remedy is available, the writ would not be maintainable.
8. In L.L. Sudhakar Reddy v. State of Andhra Pradesh , the apex Court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.
9. Similarly in State of Bihar v. Jain Plastics & Chemical Ltd. , the apex Court has held that existence of alternative remedy would be a good ground for not entertaining the petition.
10. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr. , the apex Court has held as under: -
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.
12. Mr. Sunil Gupta, learned Counsel appearing for the petitioner contended that the remedy be tore the Tribunal under the U.P. Public Services (Tribunals) Act is wholly illusory inasmuch as the Tribunal has no power to grant an interim order. Therefore, he contends that the High Court ought not to have relegated the petitioner to a fresh proceeding before the said Tribunal. We do not agree with these arguments of the learned Counsel. When the statute has provided for the constitution of a Tribunal for adjudicating the disputes of a government servant, the fact that the Tribunal has no authority to grant an interim order is no ground to bypass the said Tribunal. In an appropriate case after entertaining the petitions by an aggrieved party if the Tribunal declines an interim order on the ground "that it has no such power then it is possible that such aggrieved party can seek remedy under Article 226 of the Constitution but that is no ground to bypass the said Tribunal in the first instance itself. Having perused the impugned order, we find no infirmity whatsoever in the said order and the High Court was justified in directing the petitioner to approach the Tribunal. In the said view of the matter, the appeals are dismissed. No costs.
11. Thus, it has been the consistent view of the Hon'ble Supreme Court that wherever an alternative remedy is available it should not be bypassed and the petitioner has to approach this Court after availing alternative remedy. Reference in this regard may be made to the decision of the Hon'ble Supreme Court rendered in Hindustan Steel Works Construction Ltd. and Anr. v. Hindustan Steel Works Construction Ltd. Employees Union (2005) 6 S.C.C.
12. The matter requires finding of fact by adducing oral and documentary evidence which cannot be gone into by this Court under Article 226 of the Constitution of India.
13. The petitioner can raise the dispute before the appropriate authority for amicable settlement and in the event of failure of amicable settlement between the parties; the dispute can be referred to the Central Government Industrial Tribunal for decision.
14. The law is well entrenched that alternative remedy can not be bypassed and it has to be exhausted before approaching the High Court under Article 226 of the Constitution of India, particularly in cases where Labour Court or Tribunal having jurisdiction in the matter have been established. Alternative remedy is absolute bar in the cases where such question of facts is to be decided by adjudication.
15. In case the dispute is referred to the Central Government Industrial Tribunal within a period of one month, the Tribunal shall decided the same preferably within a period of two months from the date of making reference of the dispute to it.
16. For these reasons, this Court is not inclined to interfere in the matter under Article 226 of the Constitution.
17. The writ petition is dismissed on the ground of alternative remedy. No order as to costs.