IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2939 of 1994 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- VINOD H.THAKAR Versus ABDASA TALUKA PANCHAYAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2939 of 1994 MR RC PATHAK for Petitioner No. 1 MR HS MUNSHAW for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 09/09/2004 ORAL JUDGEMENT 1. In the present petition, the petitioner has challenged the action of the respondent in terminating his service with effect from 30th June, 1993. 2. It is the case of the petitioner that he is working as a Clerk with the respondent since 1-3-1982, Earlier, the services of the petitioner came to be terminated with effect from 1-9-1986 which action of the respondent came to be challenged by the petitioner by filing an industrial dispute before the Labour Court. The Labour Court, Rajkot, was pleased to direct the respondent to reinstate the petitioner in service with continuity but without back wages. It is also the case of the petitioner that respondent herein had challenged the said award of the Labour Court by filing Special Civil Application no.7897/1992. Ultimately, the said writ petition came to be disposed of by an order dated 23rd December,2003. The case of the petitioner is that during the pendency of the said litigation, the petitioner was reinstated in service with effect from 1-6-1993, but within a short time thereafter, his services came to be terminated once again with effect from 30th June, 1993. It is this action of the respondent of terminating the services of the petitioner with effect from 30th June, 1993 that is challenged in this petition. 3. The petitioner has raised number of grounds of challenge to his termination in the present petition. The petitioner has, besides others, raised the ground that termination is in violation of Section 25(G) of the Industrial Disputes Act, as according to the petitioner, the respondent has not followed the principle of " last come first go" while terminating his service. The petitioner has contended that number of employees junior to the petitioner are still retained and actually regularized in service, but the petitioner is illegally terminated by the respondent. 4. In response to the notice issued by this Court, the respondent has appeared and filed its reply in which it is contended that during the pendency of Special Civil Application no.7897/1992, the petitioner came to be reinstated in service by order dated 1-6-1993 for a period of 29 days. It is further stated by the respondent that in absence of any work available, the petitioner was not continued in service on completion of the said period of 29 days and that, therefore, the case of the petitioner was covered under Section 2(oo)(bb) of the Industrial Disputes Act. The respondent has further submitted that though notice or retention compensation was to be paid to the petitioner, the respondent had terminated the services by paying an amount of Rs.5472/by way of notice pay and retrenchment compensation. The respondent has further denied the allegation of the petitioner that juniors are retained. It is contended that after 31st August, 1986 no new daily wagers have been appointed except for the petitioner for a period of one month as mentioned above. It is further stated that there is no daily wager working as Work Charge Clerk in the Taluka Panchayat since there is no requirement of such employees. 5. Filing affidavit-in-rejoinder, the petitioner has sought to deny the contentions raised by the respondents in the reply and has reiterated that juniors to the petitioner are retained and regularized. 6. From the averments made on record, it can be seen that large number of disputed questions of fact are arising in the present petition. In the decision of U.P.STATE BRIDGE CORPORATION LTD. AND OTHERS v. U.P.RAJYA SETU NIGAM S. KARMACHARI SANGH reported in (2004) 4 Supreme Court Cases 268, the Honourable Supreme Court held that when the dispute relates to enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act since the Industrial Disputes Act is made to provide a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. It was further held that when the proceedings relating to an industrial dispute are brought in challenge under writ jurisdiction of Article 226 , it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner. It was also held that the High Court while exercising extraordinary jurisdiction under Article 226 should refuse to exercise the powers where there are disputed questions of fact arising. 7. In view of the fact that large number of disputed questions of fact are arising in the present petition with respect to the nature of employment of the petitioner, his entitlement to receive notice or notice pay or retrenchment compensation, whether the same were sufficiently provided for by the respondent or not before terminating his services and whether persons junior to the petitioner are retained in service, all are disputed questions of fact which can be decided by the appropriate forum under the Industrial Disputes Act, and the present petition is, therefore, not maintainable and rejected on the ground of availability of efficacious alternative remedy. 8. Learned Advocate for the petitioner has made a grievance that the respondent while reinstating the petitioner in service on 1-6-1993 had failed to pay the wages for the period from the date of the award till actual reinstatement. For want of any specific challenge to this aspect in the matter, and for want of any factual data in this regard, it will not be possible for me to adjudicate this issue. Suffice it to say, that if the petitioner is not paid certain salary, otherwise legally due to him, it is expected that the respondent shall pay the same as expeditiously as possible. With these observations, the petition is rejected. Rule is discharged with no orders as to costs. ( Akil Kureshi,J.) stanley-ak.