Shri.S.S.Jaganath Rao v. The Honble Lt.Governor And ORS.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA DUTT (PAUL) WPA/652/2024 Shri S. S. Jaganath Rao ... Petitioner
Versus
The Hon'ble Lieutenant Governor and Others ... Respondents For the Petitioner : Mr. Gopala Binnu Kumar For the Respondents : Mr. Rakesh Kumar Heard on : 17.12.2025 Judgment on : 19.12.2025 SHAMPA DUTT (PAUL), J.
1.
The writ application has been preferred praying for direction upon the respondents no. 3 and 4 to allow the petitioner to join duty in terms of his duty report dated 08.09.2023.
2.
The petitioner has further prayed for direction upon the said respondents to accord the benefit of the policy decision taken by the Andaman and Nicobar Administration vide office memorandum dated 22nd September, 2017 by according the benefit of 1/30th of pay plus dearness allowances to the petitioner on and from 1st September, 2017 to 27th December,
with interest for discharging the duties and responsibilities of regular employee for 08 hours a day. 3.
The petitioner's case is that in the month of June, 2013, the petitioner was engaged as a Daily Rated employee as Sweeper in the sanitary section in Ward No. 14 Dairy Farm under the Port Blair Municipal Council. After his engagement he worked continuously for near about 10 years.
4.
In the month of December, 2022 the petitioner developed pain in the lower spine and was under treatment in SRC Clinic, Middle Point, Port Blair under Dr. R.C Sinha, retired Chief Medical Officer under the Director of Health Service.
Immediately after the petitioner started the treatment, he informed his in charge J Suraj, supervisor in Sanitary section at Dairy Farm ward no. 14.
5.
The said treatment prolonged for 08 months and on 8th September, 2023 petitioner for reported duty with medical certificate and fitness certificate, but he was not allowed to report duty.
6.
That during the period when the petitioner worked, petitioner was paid a meagre salary but after the order of the Courts subsequently all the daily rated employees were
accorded the benefit of higher scale of pay i.e 1/30th of pay plus dearness allowance on and from 1st September 2017 to 28th December 2022, the said payment was not made to the petitioner.
7.
When the petitioner after reporting for duty, was not accepted by the authorities, the petitioner also demanded for difference of pay, followed by representation but the respondent authorities by the month of March 2024 rejected the claim of petitioner.
8.
Mr. Gopala Binnu Kumar, learned Counsel for the petitioner submits that inspite of the petitioner reporting for duty with fitness certificate on 08th December, 2023, he was not allowed to join and was also denied the higher scale of pay by the respondent authorities though the Municipal Council accorded the benefit of higher scale of pay to similarly circumstanced daily rated employees.
9.
The respondent authorities in their affidavit-in-opposition on denying the case of the petitioner have raised the following points :- a. The said petition is not maintainable in the eyes of law.
b. The petitioner have not been able to make out a sufficient of action in accordance with the law. c. The instant petition is barred by law of limitation. d. The petitioner has alternate remedy before the Labour Court.
e. The matter involves disputed question of facts and law and the same is required to be tried on leading evidence.
10.
The specific case of the respondent authorities is that the petitioner, Shri. S.S Jagannath Rao, S/o S Jogulu was initially engaged on 03/06/2013 as a 'Sanitary Worker' on Muster Roll basis under Ward No. 14 (Formerly ward No. 8) Vide Council's Resolution No. 35/MC/2013 dated 29.04.2013. The petitioner had been discharging his duties and responsibilities as Daily Rated Mazdoor from 03.06.2013 to 27.12.2022 under the Sanitary Section of the respondent No. 3. The petitioner had been continuously absenting from his duty w.e.f 28.12.2022 to 08.09.2023. The petitioner has submitted a letter with Medical Certificate on dated 08.09.2023.
11.
It has further submitted that the Administrative Officer, Municipal Council vide office No. 1-380/GC/Estt/CL/MC/
2015/PF-1/1552 dated 13.06.2023 circulated a list of DRM employees with a request to examine the details in the enclosed list and asked to certify, 'whether the employees mentioned in the list were engaged in the PBMC prior to 01.09.2017 and they are still serving in the Council'. Wherein, the said list contains the name of the petitioner at Sl. No. 01.
12.
The Administrative Officer, Municipal Council vide Office Order No. I/33026/2023 dated 18.07.2023 circulated a list of DRM/Muster Roll employees by granting the enhanced wages @ 1/30th of the minimum pay plus Dearness Allowance, wherein, the name of the petitioner was not reflected/entertained. The petitioner was not included in the order dated 18.07.2023 of 1/30th status due to his long absence w.e.f. 28.12.2022 to 08.09.2023. The petitioner submitted an application dated 08.09.2023, requesting the acceptance of his duty report. However, his request was not accepted due to his long absence from 28.12.2022 to 08.09.2023, as well as the lack of timely intimation of his long absence.
13.
It has further stated by the respondent authorities that there is no specific mention of extending arrears payment to the Muster Roll Employees who were discontinued for the said period.
14.
Mr. Gopala Binnu Kumar, learned Counsel for the petitioner submits that the persons who went to the High Court and the Supreme Court with a prayer to grant the benefit of 1/30th status are continued their service in the Municipal Council.
15.
On hearing the parties and on perusal of the materials on record it appears that the petitioner was not permitted to continue his employment due to his long absence for more than 08 months. The facts and circumstances of the persons who have been permitted to continue their service are not before this Court to ascertain if the petitioner stands on the same footing or not.
16.
The fitness certificate placed by the petitioner before the authority concerned issued by the Chief Medical Officer of G. B. Pant Hospital shows that he was absent from duty from 28.12.2022 to 08.09.2023 and the rest was advised as the same was absolutely necessary. The fitness certificate shows that the petitioner was suffering from 'Lumbosacral pain' 17.
In reply, the petitioner has countered the case as made out by the respondent authorities by reiterating his case as made out in the writ application.
18.
It is further stated by the learned Counsel for the petitioner that the respondent authorities being the state authority is under legal obligation to reinstate the petitioner in service and is under legal obligation to accord the higher scale of pay to the petitioner on and from 1st September, 2017 to 28th December, 2022 when the petitioner has discharged his duties and responsibilities under the Port Blair Municipal Council at par with the other daily rated employees. 19.
Admittedly, the petitioner herein was appointed as a 'Sweeper' in the Sanitary Section in Ward No. 14 (Dairyfarm) under the Port Blair Municipal Council and was a daily rated employee and he has putting 10 years of service. 20.
As per the fitness certificate, the petitioner was suffering from 'Lumbosacral pain'.
21.
The contention of the petitioner herein is that may be treated at par with other similarly placed employees who have been given the benefit of higher scale of pay. 22.
The respondent authorities have contended that the petitioner herein being a daily rated employee was not permitted to continue his employment in view of the fact that he had absented himself for a unreasonable period of time and during
the said absence, it was necessary for running the office of the Municipal Council to employ other daily rated employees in place of the petitioner, so that the emergency services were not hampered.
23.
The order of the Council granting the said benefit was extended to the DRMs who have been continuously working within the Council and not to the DRMs who were discontinued/terminated at the relevant period. 24.
The contention of the respondent that the petitioner's alternative remedy lies before a different forum and by passing the said forum, the petitioner cannot approach the Writ Court praying for such relief, has merit.
25.
In Leelavathi N. and Ors. Etc. - versus - The State of Karnataka and Ors. Etc. reported in Civil Appeal No(s). of 2025 [Arising out of SLP (Civil) No(s). 27984-27988 of 2023], the Supreme Court in para 32, 33, 34, 35, 36 and 37 held that : "32. Otherwise also, the law of alternate remedy is well settled and has been dealt with by this Court in various judgments. In Rajeev Kumar (supra), this Court while relying on the Constitution Bench rendered in L. Chandra Kumar (supra) has held as under:
"9. The Constitution Bench in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] held that the power of the High Court under Articles 226 and 227 of the Constitution and of this Court under Article 32 of the Constitution is a
part of the basic structure of our Constitution (see paras 78 and 79, pp. 301 and 302 of the Report). The Constitution Bench also held that various tribunals created under Articles 323-A and 323-B of the Constitution, will function as court of first instance and are subject to the power of judicial review of the High Court under Articles 226 and 227 of the Constitution. The Constitution Bench also held that these tribunals are empowered even to deal with constitutional questions and can also examine the vires of statutory legislation, except the vires of the legislation which creates the particular tribunal.
10. In para 93, at p. 309 of the Report, the Constitution Bench specifically held: (L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] ) "93. ... We may add that the Tribunals will, however, continue to act as the only courts of first instance in respect of the areas of law for which they have been constituted."
(emphasis added) The Constitution Bench explained the said statement of law by reiterating in the next sentence: (L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] , SCC p. 309, para 93) "93. ... By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
11. On a proper reading of the abovequoted two sentences, it is clear:
(a) The tribunals will function as the only court of first instance in respect of the areas of law for which they have been constituted.
(b) Even where any challenge is made to the vires of legislation, excepting the legislation under which tribunal has been set up, in such cases also, litigants will not be able to directly approach the High Court "overlooking the jurisdiction of the tribunal".
12. The aforesaid propositions have been repeated again by the Constitution Bench (in L. Chandra Kumar case [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] ) in the penultimate para 99 at p. 311 of the Report in the following words: "99. ... The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."
13.
In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great respect, fell into an error by allowing the appellants to treat the High Court as a court of first instance in respect of their service disputes for adjudication of which CAT has been constituted. - xxx -
15. As the appellants cannot approach the High Court by treating it as a court of first instance, their special leave petition before this Court is also incompetent and not maintainable.
16. The principles laid down in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] virtually embody a rule of law and in view of Article 141 of the Constitution the same is binding on the High Court. The High Court fell into an error by allowing the appellants to approach it in clear violation of the Constitution Bench judgment of this Court in L. Chandra Kumar [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] ."
(Emphasis Supplied)
33. In Nivedita Sharma vs. Cellular Operators Association of India and Others, reported in (2011) 14 SCC 337, this Court has held as under:
"11. We have considered the respective arguments/ submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including
writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation-L.
Chandra Kumar v.Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577]. However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
12. In Thansingh Nathmal v. Supdt. of Taxes [AIR 1964 SC 1419] this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) "7.... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131] this Court observed: (SCC pp. 440-41, para 11) "11.... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that
statute only must be availed of. This rule was stated with great clarity by Willes, J. In Wolverhampton New Waterworks Co.v. Hawkesford [(1859) 6 CBNS 336 : 141 ER 486] in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd.
[1919 AC 368 : (1918-19) All ER Rep 61 (HL)] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. [1935 AC 532 (PC)] and Secy. of State v. Mask and Co. [(1939-40) 67 IA 222 : AIR 1940 PC 105] It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
14. In Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) "77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad [AIR 1969 SC 556], it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental
rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.
16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes [AIR 1964 SC 1419] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field." (Emphasis Supplied)
34. In Radha Krishan Industries vs. State of Himachal Pradesh and Others, reported in (2021) 6 SCC 771, this Court has held as under:
"25. In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-15) "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the
Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (emphasis supplied)
26. Following the dictum of this Court in Whirlpool [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1], in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted : (Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7) "7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition f iled by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion.
In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn.v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause.
In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings."
(emphasis supplied)
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.
28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [Chand Ratan v. Durga Prasad, (2003) 5 SCC 399] , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of India [Rajasthan SEB v. Union of India, (2008) 5 SCC 632] among other decisions."
(Emphasis Supplied)
35. Recently, a three-Judge Bench of this Court in PHR Invent Educational Society vs. UCO Bank and Others, reported in (2024) 6 SCC 579, has held as under:
"37. It could thus clearly be seen that the Court has carved out certain exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy. Some of them are thus: (i) where the statutory authority has not acted in accordance with the provisions of the enactment in question;
(ii) it has acted in defiance of the fundamental principles of judicial procedure;
(iii) it has resorted to invoke the provisions which are repealed; and (iv) when an order has been passed in total violation of the principles of natural justice.
38. It has however been clarified that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance."
(Emphasis Supplied)
36. A careful perusal of the aforesaid judgments leads us to the conclusion that where an efficacious alternate remedy is available, the High Court should not entertain a writ petition under Article 226 of the Constitution of India in matters falling squarely within the domain of the Tribunals.
37. Nevertheless, a writ petition under Article 226 may still be maintainable notwithstanding the existence of such an alternative remedy in exceptional circumstances, including the enforcement of fundamental rights guaranteed under Part III of the Constitution; instances of ultra vires or illegal exercise of power by a statutory authority; violation of the principles of natural justice; or where the vires of the parent legislation itself is under challenge. While these exceptions have been carved out and reiterated by this Court in a catena of decisions, the facts of the present case do not fall within any of these exceptions so as to warrant the maintainability of the writ petitions before the High Court.
26.
On overall consideration of the submission of the parties and the materials on record, the writ application is disposed of with the liberty granting to the petitioner to approach the appropriate forum praying for reliefs as prayed for in the writ application.
27.
Considering that an alternative remedy is available to the petitioner, the materials on record do not call for any order in favour of the petitioner by the Writ Court.
28.
The writ application is accordingly disposed of. 29.
All connected application, if any, stands disposed of. 30.
Urgent Photostat certified copy of this judgment, if applied for, shall be supplied to the parties as expeditiously as possible, upon compliance of all formalities.
[ SHAMPA DUTT (PAUL), J. ]