R.A. Sharma, J. - (1.) Service of the appellant who was an employee of L.H. Sugar Factory, Pilibhit (hereinafter referred to as the Sugar Factory) was terminated by the management in 1993. Against the said order he filed a Writ Petition No. 11783 of 1993 before this Court in which an interim order was passed by this Court. During the pendency of the above writ petition, petitioner was transferred by the management from Pilibhit to Lucknow. Against the transfer order he filed a second Writ Petition No. 39915 of 1994. Both these writ petitions have been dismissed by the learned Single Judge on two grounds, namely, (i) the petitioner has an alternative remedy before the Industrial Tribunal/Labour Court constituted under the Industrial Disputes Act and (ii) writ petition against private sugar factory is not maintainable. Being aggrieved by the Judgment of the learned single Judge, the appellant has filed two special appeals Nos. 213 of 1997 and 214 of 1997.
(2.) Sri K.P. Agarwal, learned counsel for the appellant has made two submissions, namely, (i) as the service of the appellant was terminated in violation of Section 25-N of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the writ petition was not liable to be dismissed on the ground of alternative remedy; and (ii) writ petition filed against the order of sugar factory is maintainable. Sri Ashok Khare learned counsel for the sugar factory has disputed the submissions of Sri Agarwal. As the Judgment of the learned Single Judge in writ petition No. 11783 of 1993 filed against the order of termination of the service of the appellant is being upheld by us in the appeal on the ground of alternative remedy before Labour Court/Industrial Tribunal no argument, as regards the validity of the order of transfer challenged in writ petition No. 39915 of 1994, which has given rise to Special Appeal No. 213 of 1997 has been made by the learned counsel for the appellant.
(3.) It is well-settled that after a writ petition has been entertained and/or parties have exchanged the affidavit it is not liable to be dismissed on the ground of alternative remedy. But the position would be different if it is not possible to resolve the dispute under Article 226 of the Constitution for any good reason, such as disputed questions of fact and/or when the writ petition itself is not maintainable. The appellant, who is Assistant Engineer in the sugar factory, claims to be a workman, because according to him, his service conditions are governed by the award of the Wage Board. His givevance is that his service could not have been terminated in violation of Section 25-N of the Act. Section 25-N is in Chapter V-B of the Act. Section 25-K has laid down the conditions precedent for applying the said chapter to an industrial establishment. Section 25-K is reproduced below : "25-K Application of Chapter V.B.(1) The provisions of this Chapter shall apply to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. (2) If a question arises whether an industrial establishment is of a seasonal character or whether work is performed therein only intermittently, the decision of the appropriate Government thereon shall be final. In order to attract the provision of Chapter V-B, the following conditions must be satisfied: (i) the factory must be an industrial establishment; (ii) it must not be an establishment of a seasonal character or in which work is performed only intermittently and (iii) in the establishment not less than one hundred workmen are employed on an average per working day for the preceding twelve months.";