Writ petition challenging forfeiture of gratuity and leave encashment dismissed for lack of maintainability due to existence of an efficacious alternative remedy under the Industrial Disputes Act, 1947.
Liberty to file appropriate petition under the Industrial Disputes Act, 1947.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5157 of 2020
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Bhup Narayan Pandey, S/o Late Paras Nath Pandey, Resident of VillageJaitpur, P.S.-Daudpur, District-Saran at Chhapra.
... ... Petitioner/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Petitioner/s : Mr. Satya Prakash Sinha, Advocate For the Respondent/s : Mr. Prabhat Kumar Verma, Sr. Advocate Dr. Anand Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT Date : 11-11-2024
Heard Mr. Satya Prakash Sinha, learned counsel for
the petitioner and Dr. Anand Kumar, learned counsel for the Bihar Road Transport Corporation (for short ‘the Corporation’).
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Gratuity and 50% of unutilized leave of the petitioner has been forfeited.
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maintainable in view of the decision of the learned co-ordinate Bench of this Court in the case of Sidheshwar Prasad v. Bihar
State Road Transport Corporation and Others [2003 (2) PLJR 841] , wherein the learned Court having taken note of the various provisions of Industrial Dispute Act, 1947 (for brevity ‘the Act, 1947) has held that the matter of dismissal of a workman employed by the Corporation can appropriately be adjudicated in accordance with the mechanism provided under the Act, 1947. The learned Court categorically observed that the petitioner has alternative efficacious remedy under the Act, 1947; jurisdiction under Article 226 of the Constitution is not fit to be exercised. The Court also unequivocally reiterated the settled principle that irrespective of the fact that the existence of an alternative remedy does not bar the jurisdiction of the High Court; however, this is a rule of discretion and not of jurisdiction.
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view of the judgment rendered by this Court in Sidheshwar Prasad (supra) as also the decision of the learned Division Bench of this Court in the case of Rajeshwar Prasad v. The State of Bihar and Others [L.P.A. No. 822 of 2015] and accordingly it was disposed off giving liberty to the petitioner of the said writ petition to file appropriate petition under the Act, 1947. The copy of the said order has also been brought on record as Annexure-E to the supplementary counter affidavit.
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noted decisions. It would be apt to quote the relevant paragraphs of the decision of Sidheshwar Prasad (supra).
“10. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of Mr. Mukhopadhayaya that existence of an alternative remedy does not bar the jurisdiction of this Court. This is a rule of discretion and not of jurisdiction. In fact no fetter has been placed by the Constitution on this Court for exercise of power under Article 226 of the Constitution but this Court has imposed upon itself certain restrictions for exercise of the power and one of the well known limitations put by this Court upon itself is that in the face of alternative efficacious remedy, jurisdiction under Article 226 of the Constitution is not fit to be exercised, except in grave and exceptional cases. In the present case, the allegation against the petitioner is of misconduct in relation to carrying passengers without ticket. He has been found guilty of said misconduct and dismissed from service. I am of the opinion that the matter of dismissal of a workman employed by the Corporation can appropriately be adjudicated in accordance with the mechanism provided under the Act. The view which I have taken is in conformity with the decision of this Court in the case of Abdul Khalique v. H.E.C. Ltd. (1985 BBCJ 114) in which it has been held as follows:—
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“Where a right or liability is created by statute, if that statute provides a remedy, the remedy provided by that statute alone must be followed. The rights and liabilities have been created by the certified Standing Orders. Whether the Standing Orders Act provides any remedy. The only relevant section of that Act is section 13A which provides that if any question arises as to the application or interpretation of a Standing Order certified under that Act, any employer or workman may refer the question to any of the Labour Courts constituted under the I.D. Act and specified for the disposal of such proceeding by the appropriate Government by notification in the official Gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties.”
“32(4)(6). We may now summarise the principles flowing from
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the above discussion:
(4) It is not correct to sav that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate government. The power to make a reference conferred upon the government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie . The power conferred is the power to refer and not the power to decide, though it may be that the government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(6) The Certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to “statutory provisions”. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the Civil Court where recourse to
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Civil Court is open according to the principles indicated herein”. (Underlining mine)
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also expected that the learned Court/Authority shall expedite the matter and pass appropriate order thereon, in accordance with
law.
(Harish Kumar, J)
rohit/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 12-11-2024 |
| Transmission Date |
1 issue framed by the court
Whether the High Court can exercise jurisdiction under Article 226 when an efficacious alternative remedy exists under the Industrial Disputes Act, 1947?
Colour shows how this judgement treated each authority
Baikunth Tiwary v. Bihar State Road Transport and OthersReferred¶19
Baikunth Tiwary v. Bihar State Road Transport and Others [C.W.J.C. No. 4159 of 2001]
Sidheshwar Prasad v. Bihar State Road Transport Corporation and OthersFollowed¶31
Sidheshwar Prasad v. Bihar State Road Transport Corporation and Others [2003 (2) PLJR 841]
Sheela Devi v. The State of Bihar and OthersReferred¶24
Sheela Devi v. The State of Bihar and Others [C.W.J.C. No. 19107 of 2014]
Rajeshwar Prasad v. The State of Bihar and OthersReferred¶24
Rajeshwar Prasad v. The State of Bihar and Others [L.P.A. No. 822 of 2015]
Abdul Khalique v. H.E.C. Ltd.Referred¶32
Abdul Khalique v. H.E.C. Ltd. (1985 BBCJ 114)
Rajasthan State Road Transport Corporation v. Krishna KantRelied on¶35
Rajasthan State Road Transport Corporation etc. etc. v. Krishna Kant etc. etc. (AIR 1995 SC 1715) · Who else cites this
3 provisions across 3 enactments
Bhup Narayan Pandey
Bihar State Road Transport Corporation
The Chief of Administration, the Bihar State Road Transport Corporation
The Chief of Account Officer, Bihar State Road Transport Corporation
The Regional Manager, B.S.R.T.C., Gaya
Harish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
