JUDGMENT Rakesh Tiwari, J.
1. Heard Counsel for the parties and perused the record.
2. By means of this petition, a prayer has been made for a direction in the nature of certiorari quashing the Order dated 9.2.1998 passed by the Regional Manager, Central Bank of India, Meerut and also the Order dated 28.3.2003 passed by the Deputy General Manager, Central Bank of India, Zonal Office, Agra respectively. It is further prayed that the respondents be directed to restore the petitioner on his post with all consequential benefit along with arrears of salary.
3. In brevity the fact of the case are that the petitioner was appointed on 12.5.1981 as Clerk-cum-Cashier/Godown Keeper in the Central Bank of India, Bulandsahar Branch. He was placed under suspension on the basis of F.I.R. lodged against him in case Crime No. 660 of 1995, which was registered at Kotwali Nagar, District Bulandshahar under Section 468/4290/409-B IPC.
4. It is submitted by the Counsel for the petitioner that during the pendency of the criminal proceedings departmental proceeding were also initiated against the petitioner and charge-sheet was issued to him. Enquiry report was submitted by the Enquiry Officer and a show cause notice dated 19.12.1997 issued to the petitioner calling upon him to show cause as to why he should not be discharged from the service of the bank without disqualification for further employment. Subsequently he was discharged from service.
5. The contention of the petitioner is that the impugned Order passed by the disciplinary authority are vitiated on account of non-consideration of the reply to the show cause notice and has been passed in the arbitrary and discriminatory exercise of power. It is also alleged that the Chief Manager, Bulandshahar Branch who had appointed the Enquiry Officer was in competent for initiating such proceedings. He further summits that the departmental proceedings were in contravention of the departmental Rules as the criminal trial is pending the departmental enquiry cannot be proceeded against the petitioner.
6. Lastly he submits that the enquiry is vitiated on the ground of non-payment of Subsistence Allowance to the petitioner.
7. Counsel for the respondents submits that the petitioner has approached this Court without exhausting the alternative remedy available to him before the Labour Court under U.P. Industrial Disputes Act, 1947. He states that the right claimed by the petitioner relates to enforcement of rights and obligation created under the Industrial Disputes Act and as such the only remedy available to the petitioner is to get the matter adjudicated under the Industrial Disputes Act. He has relied upon the case of Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, (1976) 1 SCC 496, 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 :
(9) 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.
(10) 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.
(11) 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 be get an adjudication under the Act.
(12) 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 33-C 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 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly on occasion to deal with the type of cases falling under Principle No. 2. Case of industrial disputes by and large, almost invariably be bound to be covered by Principle No. 3 stated above."
8. In Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors., 1995 (V) SCC 75, the Apex Court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947. The question whether disputes involving observance, recognition or enforcement of rights and obligation created under the Industrial Disputes Act or its sister enactment 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 and judicatory forums are 'industrial dispute' within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act or that such disputes treated as industrial disputes they shall not be adjudicated by any other forum except created by Industrial Disputes Act, i.e., they shall be adjudicated only by forums created under Industrial Disputes Act.
9. In Scooters India v. V. Vijai E.V. Eldred, (1998) 6 SCC 549, it has been held that where alternate remedy is available, the writ would not be maintainable.
10. In L.L. Sudhakar Reddy v. State of Andhra Pradesh, (2001) 6 SCC 634, 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.
11. Similarly in State of Bihar v. Jain Plastics and Chemical Ltd., (2002) 1 SCC 216, the Apex Court has held that existence of alternative remedy would be a good ground for not entertaining the petition.
12. In Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors. v. Sahngoo Ram Arya and Anr., (2002) 5 SCC 521, 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. W.P. 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 alternative 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 before 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 by-pass 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 not 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 by-pass 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."
13. The law is well entrenched that alternative remedy can not be by-passed 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 exclusive jurisdiction. The matter requires adjudication on the basis of oral and documentary evidence, which can be adduced only before the Labour Court/ Industrial Tribunal. Alternative remedy is absolute bar in case where question of facts are to be decide by adjudication.
14. The petitioner has an alternative and efficacious remedy available to him under the U.P. Industrial Disputes Act, 1947. Which he has not exhausted. For these reasons, this Court is not inclined to interfere in the matters.
15. The writ petition is dismissed on the ground of alternative remedy. No Order as to costs. However, in view of the judgment rendered in Writ Petition No. 17602 of 1990, Basant Lal v. U.P. State Roadways Transport Corporation and Ors., (2003) 1 UPLBEC 154, if the petitioner raises an industrial dispute before the concerned Regional Conciliation Officer/Deputy Labour Commissioner within a month from today, the said authority will try to amicably settle the dispute. In case no settlement is arrived at, the matter shall be immediately referred by the competent authority to the Labour Court or Industrial Tribunal for adjudication as the case may be. The reference so made shall be decided by the Court in the manner prescribed and time limits provided, in Rule 12 of the U.P. Industrial Disputes Rules, 1957 for filing written statements, rejoinder, documents etc. If necessary, the proceedings may be held on day-to-day basis under Rule 12(4) of the Rules and the case may be decided preferably within a period of six months from the date of receipt of reference.