IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case W.P. No. 1234 (S/S) of 2006 Date of decision :- 13-9-2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 13-9-2006 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. 2 HIGH COURT OF UTTARANCHAL, AT NAINITAL Civil Misc. Writ Petition No. 1234 (S/S) of 2006 Padam Singh Negi S/o Late Gyan Singh Negi R/o G-291, Nehru Colony Dehradun, District Dehradun Presently posted as Paricharak, Garhwal Mandal Vikas Nigam, Dehradun …Petitioner Versus 1. Garhwal Mandal Vikas Nigam Ltd. through its Managing Director, Dehradun 2. General Manager, Garhwal Mandal Vikas Nigam Ltd., Dehradun …Respondents Mr. Tanuj Semwal, learned counsel for the petitioner. Mr. Shobhit Saharia, learned counsel for the respondents. Per Hon’ble J.C.S. Rawat, J. 1. By means of this Writ Petition, moved under Article 226 of the Constitution of India, the petitioners have sought the following relieves:- “i) To issue a writ, order or direction in the nature of mandamus directing the respondents to pay the full back wages as awarded by the Labour Court, Dehradun in reference case No. 152 of 1999 decided on 18.02.2000 and also Rs. 1000/- as cost of the award to the petitioner. ii) To issue a writ, order or direction in the nature of certiorari for quashing the order dated 20.04.2001 to the extent of not paying the petitioner back wages. iii) To issue any suitable order or direction which this Hon’ble court may deem fit and proper under the circumstances of the case. iv) To award the cost of the writ petition to the petitioner.” 2. The petitioner was appointed as Paricharak in the respondents/Corporation. His services were terminated from 3 the said Corporation on 01.11.1997. Thereafter, the dispute was referred to the Industrial Tribunal and the Industrial Tribunal vide its order dated 18.02.2000 set aside the termination order of the petitioner and directed the respondents/Corporation that the petitioner shall be given back wages alongwith Rs. 1,000/- as cost of the case. It was also directed that the petitioner shall be reinstated in the services. The Corporation has not challenged the said award before the High Court, as such, the award had become final in between the parties. The petitioner filed an affidavit before the Managing Director of the Corporation wherein he had stated that he does not want the back wages and he only wanted to be reinstated in his service in the Corporation. The Managing Director after due consideration passed an order dated 20.04.2001 (annexure-3 to the writ petition). The petitioner had stated that he filed several representations before the Managing Director of the Corporation but the Corporation had paid no heed. The petitioner has also alleged that he is entitled for the back wages from 01.11.1997 to 20.04.2011. He had also challenged the impugned order of the Managing Director of the Corporation of the reinstatement on the ground that the said affidavit was taken under force or under the influence and consent for the said affidavit was obtained by coercion. The Corporation had not paid the back wages, hence this writ petition has been filed before this court. 3. Heard Sri Tanuj Semwal, learned counsel for the petitioner, Sri Shobhit Saharia, learned counsel for the respondents and perused the record. 4 4. It was contended on behalf of learned counsel for the petitioner that Labour Court, Dehradun passed an award dated 18.02.2000 in case No. 152 of 1999 and directed the respondents to pay the back wages to the petitioner and also to reinstate the petitioner in services. It was further contended that the Managing Director of the Corporation obtained the affidavit from the petitioner under coercion and without consent that he does not want the back wages and he may be reinstated in the service on this condition. It was further contended that the action of the respondents was against the provision of law and, as such, he is entitled to get salary as ordered by the award. Sri Shobhit Saharia, learned counsel for the respondents contended that the petitioner had filed this writ petition after lapse of 6 years and he had not explained the delay in filing the writ petition as to why he remained silent during this period. He further contended that the petition is liable to be dismissed on the ground of the latches. He further contended that the petitioner had been pleading that the said affidavit was given under coercion and without consent. The Corporation case is that the petitioner on his own accord gave the said affidavit. Thus this court cannot evaluate the evidence and cannot decide the disputed question of fact while hearing the petition under Article226 of the Constitution. It was further contended by the respondents that the petitioner had other efficacious remedy u/s 6-H of the Industrial Dispute Act, 1947. He had not filed any application for the recovery of the back wages before the Labour Court, as such, the petitioner’s claimed is not entertainable in this court. I find force in the contention of the learned counsel for the respondents. 5 5. It is pleaded in the petition that the petitioner was terminated from his service on 01.11.1997 and his termination order was quashed by the Industrial Tribunal on 18.02.2000 and the Tribunal allowed the back wages alongwith Rs. 1000/- as cost of the case. The petitioner was reinstated vide order dated 20.04.2001. It is alleged that the petitioner filed an affidavit in which he unequivocally stated that he would not be claiming the back wages and he would be reinstated in the service. The Managing Director considering the said affidavit passed the impugned order dated 20.04.2001. It is not disputed that the petitioner had not given any affidavit to the Managing Director of the Corporation. It is the only case of the petitioner that the said affidavit was taken under coercion. The first and foremost question arose that the petitioner was reinstated in the year 2001 and he had been making the representation as alleged in the petition but he had not challenged before the court or he had not made any complaint to the higher authority that the affidavit of the petitioner had been taken under coercion. If the Managing Director of the Corporation had taken the affidavit by coercion, the petitioner could have very well moved to the Industrial Tribunal alleging all the facts and for the execution of the same. The petitioner failed to make any recourse before the court of law and remained silent for a period of six years, as such, there are latches in the petition which have not been properly explained. It was pointed out that the petitioner had been representing to the authority but he had not filed any petition before any competent court. The petitioner remained sitting idle for the period of six years. The petitioner had made representations during this period. There is considerable delay and merely making the representation cannot justify the belated approach. The 6 petitioner had explained the delay in the petition. The delay or the latches is one of the factors which is to be borne in mind by the High Court while exercising the discretion under Article 226 of the Constitution. If the court is of the opinion that there is a delay, the court would refuse to invoke its extraordinary jurisdiction if there is such negligence or omission on the part of the petitioner to assert his right as taken in conjunction with the lapse of time and other circumstances of the case. The petition is liable to be dismissed on this count. 6. It is pertinent to mention here that the petitioner has specifically stated that his services were terminated and thereafter the Industrial Tribunal had set aside the said termination order and directed to pay the back wages to the petitioner. Under Section 6-H of the Industrial Disputes Act, 1947, it is provided that where any money is due to a workman from an employer under Sections 6-J to 6-R or under a settlement or award, or under an award given by an adjudication or by the Industrial Tribunal, the workman may without prejudice, make an application to the Government for the recovery of the money due to him, and if the State Govt. is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same. The Industrial Tribunal had directed reinstatement of the petitioner in addition to that the back wages to be paid to him. Thus there is money due to a workman from employer under an award given by Industrial Tribunal, as such, the said claim could have been executed under section 6-H of the Act. The petitioner instead of taking recourse of the other efficacious relief, has filed petition 7 before this court. Thus the petition is not entertainable before this Court u/s 226 of the Constitution of India. 7. It is also pertinent to mention here that the affidavit had been given by the petitioner before the Managing Director of the Corporation. Assuming it to be a voluntary affidavit, the Managing Director had acted upon it. The petitioner had not protested on this ground before joining his services. It is alleged by the petitioner that the said affidavit was taken under coercion. It is highly disputed question of fact as to whether the affidavit was filed under coercion or not, it cannot be decided under the writ jurisdiction by this court. 8. I do not find any force in the argument of the learned counsel for the petitioner and I am completely in agreement with the arguments advanced by the learned counsel for the respondents. 9. In view of the foregoing discussion, the writ petition devoids of merit is liable to be dismissed and is dismissed accordingly. The parties shall bear their own costs. 10. All applications pending in this case are stand disposed of in terms of the judgment. (J.C.S. Rawat, J.) 13th September, 2006 Shiv