1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT DB Civil Special Appeal (Writ) No. 152/2010 in SB Civil Writ Petition No. 4528/1995 Matunda Gram Sewa Sahkari Samiti Ltd Vs Ramnarayan & anr 21.4.2010 Hon'ble Mr Justice Dalip Singh Hon'ble Mr Justice MN Bhandari Mr KK Sharma – for appellant BY THE COURT: By this appeal, a challenge has been made to the order dated 2.4.2009 whereby writ petition filed by non-appellant was accepted. Non-appellant was employed on the post of Assistant Manager. His services were terminated vide order dated 26.2.1979. The order of termination was initially challenged by maintaining a civil suit, which was dismissed followed by dismissal of appeal holding that remedy under section 75 of the 2 Rajasthan Cooperative Societies Act, 1965 exists. Non-appellant herein then maintained a writ petition. Learned counsel for appellant submits that civil suit was dismissed on the ground that a under section 75 of the Act of 1965 exists thus learned Single Judge should not have entertained the writ petition ignoring aforesaid. It was a matter pertaining to cooperative society thus on termination of non-appellant's services, remedy of Arbitration was available. The pendency of the writ petition for a period of fourteen years does not mean that even if alternative remedy is available, it can be ignored and writ petition can be entertained to grant relief to the employee. It is further urged that writ petition was not maintainable otherwise also, as the appellant herein does not fall within the ambit of Article 12 of the Constitution of India. Learned Single Judge though dealt with the issue but failed to consider the same in its correct perspective. On that ground also the impugned order of the learned Single Judge deserves to be set aside. 3 A challenge has further been made to relief of 50% back wages to the non-appellant despite the delay in filing writ petition. We have heard learned counsel for appellant and perused the record of the case. First question is regarding availability of remedy under section 75 of the Act of 1965. Learned Single Judge has dealt with the aforesaid issue taking note of peculiar facts of this case as also the fact that writ petition was admitted and thereupon decided after fourteen years. It is now settled law that after admission of the writ petition, it cannot be dismissed on the ground of availability of alternative remedy. It is also to be noted that alternative remedy does not bar exercise of discretionary jurisdiction by the High Court under Article 226 of the Constitution of India. Since learned Single Judge exercised its discretion in favour of non-appellant- employee, the challenge to the same, that too in a case where writ petition remain pending for fourteen years after admission, cannot be accepted. 4 A ground has been raised that mere pendency of the writ petition for a period of fourteen years cannot mean that availability of alternative remedy can be ignored. We have already given finding to the aforesaid issue holding that if a writ petition is admitted and kept pending for considerable period, which is fourteen years in the present case, non-appellant-employee cannot be non-suited on the ground of availability of alternative remedy. It has also been held that availability of alternative remedy is not an absolute bar to entertain a writ, rather in view of judgment of the Hon'ble Apex Court in the case of Whirlpool Corporation Vs Registrar of Trade Marks, Mumbai reported as 1998 (8) SCC 1, if principles of natural justice are violated then availability of alternative remedy is no bar to maintain a writ petition. If the facts of this case are looked into then it comes out that while issuing the order of termination dated 26.2.1979, three allegations were made against non-appellant-employee, however he was not provided an opportunity of hearing. In view of the judgment in the case of Whilpool (supra), writ petition was maintainable even if alternative remedy was available. Another ground raised is that the appellant- cooperative society does not fall within the ambit of Article 12 of the Constitution of India. From perusal of the record, we do not 5 find that such an argument was raised before the learned Single Judge. It is submitted that specific pleading was taken in the reply. Suffice it to say that many grounds are raised in the pleadings but what is finally pursued and argued during course of arguments is material. Perusal of the appeal does not show specific ground that aforesaid issue was argued by learned counsel for appellant before the learned Single Judge but not dealt with. It is rather argued that learned Single Judge failed to deal with aforesaid issue in correct perspective. On perusal of the judgment, it is not coming out that specific argument was raised before the learned Single Judge other than the argument regarding availability of alternative remedy. A judgment cannot be challenged on a ground which was not argued before the learned Single Judge. In view of aforesaid, we cannot accept the issue now argued to question the judgment impugned herein more so when the matter is quite old and if matter is relegated to the jurisdiction of Arbitrator now, it will cause further delay, that too in a case decided on merits. The last argument is in regard to award of 50% back wages to non-appellant by the learned Single Judge. It is argued that award of 50% back wages is excessive looking to the facts and circumstances of the case. We have considered aforesaid argument also. Before 6 averting to the argument raised above, it is necessary to look into order of termination dated 26.2.1979. Aforesaid order contains three allegations against non-appellant. First allegation is regarding his absence from duty. Second allegation is in regard to police report in a criminal case regarding fire. The last allegation is with regard to shortage of stock etc. In reply to the writ petition, though it has been stated that opportunity of hearing was given to non-appellant but pleadings have not been substantiated by the appellant herein. The copy of so called notice for hearing is not part of the reply and has not been filed even while maintaining appeal. In view of aforesaid the pleading in reply remains without substantiation. It is otherwise a fact that in the criminal case non-appellant employee had been acquitted to the charges levelled against him thus one of the ground taken for effecting order of termination became non-existent in view of the finding in favour of non-appellant in the judicial proceedings. In view of discussion made above, we are of the opinion that learned Single Judge has not committed any error or illegality while awarding equitable relief to non-appellant, rather taking a proper view, only 50% back wages have been awarded. The order of termination was made in violation of principle of natural justice. In view of aforesaid discussion, we do not find any error in the judgment of the learned Single Judge. Accordingly, we 7 are not inclined to entertain this appeal and the same is hereby dismissed. Stay application also stands dismissed. (MN Bhandari), J. (Dalip Singh) J bnsharma