Dilip Gupta, J.@mdashThis special appeal has been filed against the judgment dated 8.12.2003 of the learned Judge dismissing the writ petition on the ground of availability of alternative remedy of raising an industrial dispute under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as the ''Act'').
2. We have heard the learned Counsel for the Appellant, learned standing counsel appearing for Union of India, learned standing counsel appearing for the State of U. P. and Sri Suneet Kumar, learned Counsel appearing for respondent Nos. 3 and 5.
3. The Petitioner Appellant was working as a Sub-Editor in ''Dainik Jagran'' at Varanasi. A show cause notice dated 9.4.2003 was served upon him requiring him to submit his explanation to the charges levelled. He submitted a reply and the Enquiry Officer, who had been appointed to enquire into the charges, after providing opportunity to him, submitted his enquiry report dated 24.7.2003. Subsequently a communication dated 20.8.2003 enclosing a copy of the enquiry report was sent to the Petitioner Appellant requiring him to submit a reply as to why the proposed punishment should not be imposed upon him. The Petitioner Appellant, however, did not submit any reply to the show cause notice. The Management thereafter served an order dated 16.9.2003 terminating the services w.e.f. 16.9.2003. Feeling aggrieved by the aforesaid order of termination, the Petitioner Appellant filed the writ petition which has been dismissed by the learned Judge.
4. Learned Counsel for the Petitioner Appellant placing reliance on the provisions of Section 16A of the Working Journalists and other News Paper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as the ''Journalists Act'') contended that the termination order is illegal. Section 16A of the Journalists Act is reproduced below:
16A. Employer not to dismiss, discharge, etc., newspaper employees. - No employer in relation to newspaper establishment shall, by reasons of his liability for payment of wages to news paper employees at the rates specified in an order of the Central Government u/s 12, or u/s 12 read with Section 13AA or Section 13DD, dismiss, discharge or retrench any newspaper employee.
Elaborating his arguments, learned Counsel for the Petitioner Appellant submitted that he had sent a notice dated 24.5.2003 to the Director of the "Dainik Jagran Prakashan Ltd." claiming salary according to the recommendations of Palekar, Bachawat and Marisana Vetan Boards since according to him the daily ''Dainik Jagran'' comes under category 1A, and, therefore, the action of the management in terminating his services, was in breach of the provisions of Section 16A of the Journalists Act.
5. Learned Counsel appearing for the management, however, controverted this submission and submitted that the termination order had been passed on the basis of a charge-sheet issued and after giving him adequate and proper opportunity to defend himself, the punishment was imposed.
6. Having carefully perused the documents on record, we find that initially a show cause notice dated 9.4.2003 was sent by the management mentioning that the Petitioner Appellant was posted at the Varanasi office by means of the order dated 24.1.2003 but he had been pressing for a transfer to Allahabad and a communication sent by his wife also indicated as if Allahabad was the only suitable place for him otherwise his health would deteriorate. Further the Petitioner Appellant was not willing to be trained in the working of the Computers and on the other hand made all sorts of allegations against the management. It is in these circumstances that the notice was sent requiring him to explain why he remained absent in an unauthorised manner and had also disobeyed the orders of the management. The reply submitted by the Petitioner Appellant clearly reveals that he had only denied the charges levelled against him in the show cause notice but had not averred at all that he was not being paid salary according to the various awards. The claim regarding the salary was for the first time made in the notice dated 24.5.2003 served upon the management by the counsel engaged by the Petitioner Appellant. We also find that a letter dated 16.6.2003 was sent by the counsel for the management in reply to the said notice and it was pointed out that the newspaper establishment comes under category IV and the salary as applicable to category IV prescribed under the recommendations of the Wage Board award was being paid. It was specifically stated that the paper does not fall under category IA.
7. It is, therefore, more than apparent that prior to the issuance of the charge-sheet, the Petitioner Appellant had never raised any dispute about the lesser salary being paid to him and even in the reply to the charge-sheet the Petitioner Appellant did not raise such a grievance. It appears that later on when the charge-sheet had been served on him a notice dated 24.5.2003 was sent by his counsel raising various demands including the demand that he was not being paid salary according to category 1A. We are, therefore, inclined to believe that apprehending the action likely to be taken against him on the basis of the charge-sheet, this plea had been thought up. This apart, whether the newspaper falls under the category 1A or Category IV is a disputed question of fact particularly when the management in reply to the notice dated 24.5.2003 have categorically asserted that the newspaper comes under category IV. Thus, in the present proceedings under Article 226 of the Constitution of India this Court is not in a position to accept the contention of the Petitioner Appellant that the newspaper falls under category 1A. It cannot, therefore, be said that the Petitioner Appellant had been paid lesser wages for which he raised a demand and, therefore, his services were terminated. We accordingly rejected the arguments advanced on behalf of the Petitioner Appellant in relation to Section 16A of the Journalists Act.
8. Learned Counsel for the management also raised a preliminary objection regarding the maintainability of the petition. We called for the records of the writ petition to find out whether the Petitioner had laid any foundation for the "Dainik Jagran Prakashan Limited" to be either State or an Instrumentality or Agency of the State within the meaning of Article 12 of the Constitution. We are surprised that in the entire petition there is no averment at all regarding this fact. All that has been stated is that "Dainik Jagran Prakashan Limited" publishes Hindi daily named "Dainik Jagran". In the case of
9. Learned Judge has dismissed the writ application on the ground that the Petitioner had an alternative remedy of invoking the remedy provided for under the Industrial Disputes Act. We entirely agree with the view of the learned Judge. Section 3 of the Working Journalists (Industrial Disputes) Act, 1955, provides that the provisions of the Industrial Disputes Act, 1947, shall apply to, or in relation to, working journalists as they apply to, or in relation to, workmen within the meaning of that Act. This being the position the Industrial Disputes Act, 1947, applies in the case of the Petitioner Appellant who was a working journalist. Thus, the Petitioner Appellant should have invoked the provisions of the said Act for redressal of his grievance and the writ application was liable to be dismissed on the ground of alternative remedy and in fact has been dismissed on the said ground. Reference may be made to a Full Bench decision of this Court in the case of Chandrma Singh v. Managing Director, U.P. Co-operative Union, Lucknow and others, 1991 (2) AWC 1005: 1991 (2) UPLBEC 898, wherein it has been observed that where a complete machinery/remedy for obtaining relief is provided in the statute then unless extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievance of the Petitioner or the machinery/remedy is demonstrated and proved by the Petitioner to be inadequate or inefficacious, the Petitioner has to be relegated to the alternative remedy.
10. Thus, in our view, the judgment of the learned Judge does not suffer from any infirmity. The appeal is therefore, dismissed. No order as to costs.
