# Shoorveer Singh v. Union of India and others

- **Citation:** (2006) 2 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-25
- **Case number:** Civil Misc. Writ No. 54299 of 2004
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shoorveer-singh-v-union-of-india-and-others-40575
- **Pages:** 8

## Headnote

Constitution of India, Art. 226-Service
Law-alternative
remedy-petitioner
a
temporary
Mazdoor-after
enquiry-
appointment obtained by fraud based on
petitions
document-held-the
facts
requires to be determined on the basis of
evidence-not
feasible
under
writ
jurisdiction-after
raising
industrial
dispute-the petitioner may approach
under writ jurisdiction.

Held: Para 16

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 case where questions of facts are to
be determined on the basis of evidence.
The controversy involved in the instant
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 High Court only
after exhausting alternative remedy.
The petitioner has an alternate and
efficacious
remedy
of
raising
an
industrial dispute.
Case law discussed:
2002 UPLBEC (2) 1953
AIR 1991 SC-2010
1996 (5) SCC-83
(2005) 107 FLR-729
AIR 1985 SC-192
AIR 1961 SC-609
AIR 1983 SC-603
1999 (Suppl.) 2 SCC-312
AIR 1999- SC-22
AIR 1999 SC-74
2001 (6) SCC-569
2004 (100) FLR-20
2005 (6) SCC-595
1976 (C) SCC-496
1995 (1) SC-74
2002 (5) SCC-521

## Text

2 All] Shoorveer Singh V. Union of India and others
703
is to be remembered that constitutionally
we are bound about right vis- a- vis duty.
We should not forget our duty. When the
Court had shown leniency and thereafter
prescribed
a
formula
by
giving
adjournments on number of occasions,
Court can also expect that the matter will
be disposed of at the earliest and
necessary co-operation from the members
of the Bar will come to that extent. One
should not be forgetful that by putting
illness slip indefinitely, he is causing
difficulty to his own fellow members at
first. Interference of the Court of law
comes later on. Unless and until we
maintain ethics in discharging judicial
functions both by the members of the
Bench and Bar, glory of the High Court
can not be maintained. On the other hand,
if the fictitious illness slip are repeatedly
taken as granted, the same will be
mockery of the judicial system.

2. Under such circumstances, we
think it proper that copy of this order be
forwarded to the President and Secretary
of the Bar Association and Advocates'
Association for the purpose of effective
circulation of the order.

3. However, the matter will be
placed on 26th July, 2005 for effective
disposal irrespective of any application or
applications of the similar nature for
which longest possible time is given
hereunder.

 Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ No. 54299 of 2004

Shoorveer Singh

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri P.K. Dwivedi

Counsel for the Respondents:
Sri N.P. Shukla
Sri B.N. Singh
Sri Subodh Kumar
S.S.C.

Constitution of India, Art. 226-Service
Law-alternative
remedy-petitioner
a
temporary
Mazdoor-after
enquiry-
appointment obtained by fraud based on
petitions
document-held-the
facts
requires to be determined on the basis of
evidence-not
feasible
under
writ
jurisdiction-after
raising
industrial
dispute-the petitioner may approach
under writ jurisdiction.

Held: Para 16

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 case where questions of facts are to
be determined on the basis of evidence.
The controversy involved in the instant
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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 High Court only
after exhausting alternative remedy.
The petitioner has an alternate and
efficacious
remedy
of
raising
an
industrial dispute.
Case law discussed:
2002 UPLBEC (2) 1953
AIR 1991 SC-2010
1996 (5) SCC-83
(2005) 107 FLR-729
AIR 1985 SC-192
AIR 1961 SC-609
AIR 1983 SC-603
1999 (Suppl.) 2 SCC-312
AIR 1999- SC-22
AIR 1999 SC-74
2001 (6) SCC-569
2004 (100) FLR-20
2005 (6) SCC-595
1976 (C) SCC-496
1995 (1) SC-74
2002 (5) SCC-521

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard learned counsel for the
parties and perused the record.

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.

2. In the present case, services of the
petitioner were terminated as far back as
in 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 maintaible as the petitioner has an
alternate and efficacious remedy before
the Labour Court.

3. 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.

4. 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.

5. On the basis of aforesaid two
decisions, counsel for the petitioner
submits that the order of termination of
the services of the petitionr has been
passed in violation of principles of natural
justice and this Court can interfere where
violation of principles of natural justice is
alleged.

6. Counsel for the petitioner also
placed reliance on paragraph 15 of the
writ petition wherein it 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
2 All] Shoorveer Singh V. Union of India and others
705
Apex Court in Jankiram vs. Union of
India and others-AIR 1991 SC 2010
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-1996(5)
SCC-83
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.

7. 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 levelled against him and
stated that he was innocent.

8. 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.

9. 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. vs. R.S. Pandey and another-
(2005)107 FLR-729.

10. After considering the decisions
of Constitution Benches in G.Verappa
Pillai v. Ramand and Raman Ltd- AIR
1952 SC-192; Assistant Collector of
Central Excise Vs. Dunlop India Ltd. -
AIR 1985 SC-192; Ramendra Kishore
Biswas V.State of Tripura and othersAIR 1999 SC-2281; C.A. Abraham v.
I.T.O. Kottayam and others-AIR 1961
SC-609; Titaghar Paper Mills Co. Ltd.
Vs. State of Orissa and another- AIR
1983 SC-603; H.B.Gandhi v. M/s.
Gopinath and Sons 1999 (Suppl)2 SCC312; Whirlpool Corporation Vs.Registrar
of Trade Marks and others AIR 1999SC22; Tin Plate Co. of India Ltd. V. State of
Bihar and others-AIR 1999 SC-74;
Sheela
Devi
v.
Jaspalsingh
-AIR
1999(1)SCC-209 and Punjab National
Bank v. O.C. Krishnan and others
2001(6) SCC-569, 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
others v. U.P. Rajya Setu Nigam
S.Karmachari Sangh-2004(100) FLR1020=2004(16) AIC-692 and State of
Himachal Pradesh and others v. M/s.
Gujarat Ambuja Cement Ltd., and
another-2005(6)
SCC-499,
Hon'ble
Suprme 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
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the ground of availability of alternative
remedy. But the facts of the present case
have special features, which warrant
interference."

11. 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
below. 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.

12. 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 this regard in
paragraph 60 of Delhi General and Cloth
Mill (1972) 1 SCC-595. 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) If 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
the
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
prejudice 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
2 All] Shoorveer Singh V. Union of India and others
707
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 favour 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
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
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.

13. In Premier Automobiles Ltd.
V.
Kamlekar
Shantaram
Wadke[1976(1) SCC 496] 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 be
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 33-C 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 unsponsored
workman which in view of the provision
of law contained in Section 2-A 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."

14. In Rajasthan State Road
Transport Corporation and another
Vs. Krishna Kant and others (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
2 All] Shoorveer Singh V. Union of India and others
709
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 2-A 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 Act.

15. To the same effect is the
decision of Hon'ble the Apex Court in
Secretary, Minor Irrigation & Rural
Engineering Services, U.P. & Others Vs
Sahngoo Ram Arya & another, (2002) 5
SCC 521, 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
Tribunal 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."

16. 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
case
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 High Court only
after exhausting alternative remedy. The
petitioner has an alternate and efficacious
remedy of raising an 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.

No order as to costs.
---------
710 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2007

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 20476 of 2001

Prashant Kumar

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri V.K. Shukla
Sri Prakash Padia
Sri R.P. Singh
Sri B.R. Mishra

Counsel for the Respondents:
Sri D.K.S. Rathor
Sri M.A. Qadeer
Sri Kamlesh Shukla
Sri B.N. Singh
Sri S.P. Kesharwani
Sri D.P. Singh
Sri Pushpendra Singh
Sri Sudhir Agarwal, A.G.A.
S.C.

U.P. Public Service (Reservation for
Scheduled Caste, Scheduled Tribes and
Other Backward Classes) Act 1994existed
as
on
22.3.94.
Section-15,
readwith
Public
Service
Commission
Business
Rules-Rule
37-
Backward
Caste-Combined State Subordinate Civil
Services
Examination
advertisement
published on 7.1.2000-Last date for
submission of forms fixed 28.1.2000petitioner
belonging
to
'Jaat
Community'-Notified
similarly
calwar
caste included in Schedule-I of Act No. 4
of
1994
on
7.7.2000-Kalwar
Caste
included in Scheduled I of U.P. Act No. 4
of
1994
25.5.2000
preliminary
examination
conducted-whether
the
benefit of reservation of O.B.C. can be
given? Held-'No'-the benefit may be
given to those who were interned in
schedule I of the Act upto the last date
of the submission of application form.

Held: Para 30

The benefit of reservation to 'Other
Backward Class' candidates in selection
in Public Services by direct recruitment
as provided by U.P. Public Service
(Reservation
for
Scheduled
Caste/Scheduled
Tribes
and
Other
Backward Class) Act, 1994, is applicable,
to only those categories or castes which
are notified as Other Backward Classes
entered in Schedule-I of the Act, upto
the last date of filling up of the
application form for such selections,
provided there is no contrary provision in
the
Service
Rules,
the
terms
and
conditions of recruitment, or in the
advertisement.
Case law discussed:
1993 Supp. (2) SCC-611
1983 (3) SCC-284
1983 (3) SCC-33
AIR 1990 SC-405
1997 (1) AWC-415
J.T. 2001 (10) SC-5230
AIR 1988 SC-2068
AIR 1990 SC-1233
1993 (2) J.T. 15
1996 (11) SCC-242
W.P. No. 55266 of 03 decided on 24.2.05
AIR 1998 Supp. SCC-740
JT 2001 (10) SC-520
2002 (10) 704
2003 (9) SCC-519
1997 (4) SCC-18
2000 (5) SCC-262

(Delivered by Hon'ble Sunil Ambwani, J.)

1. On a reference dated 20.3.2002
made by the Division Bench in writ
petition No. 20476 of 2001, Prashant
Kumar Vs. State of U.P. and others, we
have framed the following questions to be
decided in the matter:-