Dr. D.K. Isser vs State of Uttarakhand and Others

J.S. Khehar, C.J.—The appointment of the petitioner was through a contractual agreement dated 10.08.2009. The aforesaid contractual agreement was executed with the Uttarakhand Forest Hospital Trust. The aforesaid agreement is available on the record of this case as Annexure 3. Even as per the aforesaid agreement, the petitioner is to continue in service only upto 17.06.2010. In sum and substance, only 16 days remain even if the aforesaid agreement has to be given effect to.

But then the agreement dated 10.08.2009 provides for resolution of disputes by way of arbitration under the provisions of the Arbitration and Conciliation Act, 1996. Clause 8 of the agreement dated 10.08.2009, which stipulates the resolution of disputes by way of arbitration, is being extracted hereunder:

In case of any dispute pertaining to this contract, the same shall be amicably settled mutually between the two Parties. However in case the dispute is not resolved, then the matter shall be referred for arbitration within the provisions of Arbitration Act, 1940 read with Arbitration and Conciliation Act, 1996 to the Chairman, Management Committee/Principal Secretary and Commissioner, Deptt. of Forest and Rural Development, Uttarakhand Govt. whose decision in the matter shall be final and binding on both the Parties and no matter shall be taken to Court.

In the aforesaid view of the matter we decline to entertain the instant writ petition.

It would be unfair to the learned Counsel for the petitioner, if we do not make reference to a Judgment relied upon by him during the course of hearing. In this behalf reference may be made to the decision rendered by the Apex Court in Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, . During the course of hearing, learned Counsel for the petitioner placed emphatic reliance on the conclusions drawn by the Supreme Court in paragraph 7 of the aforesaid Judgment. Paragraph 7 of the aforesaid Judgment is accordingly being extracted hereunder:

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 filed 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. The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners'' 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.

Based on the aforesaid observation, it is the contention of the learned Counsel for the petitioner, that the petitioner should not be relegated to initiate proceedings under the arbitration clause. On the contrary, it is submitted that the arbitrary action at the hands of the respondents, which also relates to the violation of the various Fundamental Rights, should be adjudicated upon by this Court itself. Having considered the contention advanced by the learned Counsel for the petitioner, as also the observations of the Apex Court in Harbanslal Sahnia''s case (extracted hereinabove), we are satisfied, that the issue is too trivial to be examined at the hands of this Court. At best as of now, the petitioner would be entitled to 16 days wages, since the contractual assignment, on the basis of which he was rendering service, is to expire on 17.06.2010. Thus viewed, we are satisfied, that it would be appropriate and in the fitness of matter, if the petitioner seeks redressal of his grievances, which at the present juncture are limited to 16 days wages, from the arbitrator.

The instant writ petition stands disposed of accordingly.