JUDGMENT Rakesh Tiwari, J.
1. Heard learned counsel for the parties and perused the record.
2. The petitioner was a temporary Mazdoor working at Ghaziabad. His services have been terminated vide order dated 26.10.2004 after enquiry. In the enquiry proceedings, it has been found that the petitioner had obtained appointment by fraud by preparing fictitious documents.
3. In the present case, services of the petitioner were terminated as far back as in 1 October, 2004 by the impugned order. There is serious dispute about the fact as to whether the petitioner obtained appointed by preparing forged and fictitious documents or not. A preliminary objection has been raised that writ petition is not maintainable as the petitioner has an alternate and efficacious retried before the Labour Court.
4. Counsel for the petitioner has relied upon a Division Bench decision of this Court in Jitendra Nath Srivastava v. Union of India (2002) 2 UPLBEC-1453 wherein the Court had interfered in the order of termination. In that case also, the writ petitioner had come through Central Administrative Tribunal.
5. He has also relied upon a decision in Anupam Dubey v. Sachiv, Basic Siksha Parishad (2004) 2 UPLBEC-1743. It was a case where the petitioner was given Compassionate appointment under the Dying in Harness Rules and his services were terminated on the charge that he obtained the appointment by producing forged certificates. In fact, his father was never employed in the Education Department.
6. On the basis of aforesaid two decisions, counsel for the petitioner submits that the order of termination of the services of the petition has been passed in violation of principles of natural justice and this Court can interfere where violation of principles of natural justice is alleged.
7. Counsel for the petitioner also placed reliance on paragraph 15 of the writ petition wherein has been averred that no charge sheet has been issued to the petitioner till date and major penalty has been imposed without holding domestic enquiry, as such the petitioner has not been afforded any opportunity of defence. In support of his contention. he placed reliance upon a decision of Hon'ble the Apex Court in Jankiram v. Union of India and Ors. wherein it has been held that it is only after a charge memo in disciplinary proceedings or a charge sheet in a criminal proceeding is issued to the employee, he can be punished. He also cited the decision of Hon'ble the Supreme Court in Tagin Litin v. State of Arunachal Pradesh wherein it has been held that an appointment to a post or office postulates a decision by the competent authority to appoint a particular person; incorporation of the said decision in an order of appointment; and communication of the order, of appointment to the person who is being appointed.
8. Counsel for the petitioner submits that the petitioner made a comprehensive reply to the letter dated 14.5.2004 on 28.7.2004 in which he vehemently denied the allegation leveled against hum and stated that he was innocent.
9. The Sub Division Engineer (EWSD) Noida issued a show cause notice dated 14.5.2004 to the petitioner to the effect that he made a statement that he had worked in the office of Assistant Engineer Satellite Communication Project Jwalapur (Haridwar) from 1.10.1989 to 30.9.1995. which was incorrect and he should show cause within 10 days otherwise, the disciplinary proceedings will be initiated.
10. The question 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 in U.P. State Spinning Co. Ltd. v. R.S. Pander and Anr. (2005)107 FLR-729.
11. After considering the decisions of Constitution Benches in G. Verappa Pillai v. Ramand and Raman Ltd. ; Assistant Collector of Central Excise v. Dunlop India Ltd. AIR 1995 SC-192; Ramendra Kishore Biswas v. State of Tripura and Ors. ; C.A. Abraham v. I.T.O. Kottayam and Ors. ; Titaghar 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. Jaspalsingh AIR 1999 (1) SCC-209 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. Also after considering the law laid down in U.P. State Bridge Corporation Ltd. and Ors. v. U.P. Raiya Setu Nigam S. Karmachari Sangh 2004(100) FLR-20 : 2004 (16) AIC-692 and State of Himachal Pradesh and Ors. v. Gujarat Ambuja Cement Ltd. and Anr. 2005(6) SCC-499, Hon'ble Supreme 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 availing of alternative remedy, 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 h low. 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 without holding domestic enquiry and against the principles of natural justice, without relegating to alternate remedy, has no force. The Hon'ble Supreme Court has laid guiding principles in tin's regard in paragraph 60 of 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) it 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 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 rejudice 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 a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is' in favor 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 b6 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 imsponsored 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 judicatory 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
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 Tribuna1 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. This is a ease where 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 1 High Court only after exhausting alternative remedy. The petitioner has an alternate and efficacious remedy of raising ah industrial dispute. This Court is not required to enter into the controversy which requires findings of fact on the basis of evidence as such the petition is dismissed on ground of alternate remedy.
18. No order as to costs.