B.S.CHAUHAN, J. - (1.) PETITIONER claims that he was initially appointed as a Class IV employee known as 'Jaldhari' in the Government Upper Primary School in Panchayat Samiti, Bagidora, district Banswara, with effect from 16 -7 -1993 and since then he has been continuously working as such. However, he is being treated as a part -time employee and is being paid the consolidated salary and not the salary in the minimum pay scale of the post of Class IV employee. Thus, the petition has been filed seeking direction for regularisation and for payment of the pay scale of a regular employee.
(2.) THE issue whether the petitioner is a part -time employee or is working whole day, is a question of fact which cannot be entertained in writ jurisdiction. Thus, the main issue involved in the present case is whether the petition be entertained or petitioner be relegated to avail the remedy under the provisions of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The issue of maintainability of a writ petition where some alternative remedy is available, is no more res integral and there can be no dispute regarding the legal proposition that a party should ordinarily avail the statutory remedy instead of approaching the writ Court, however the alternative remedy should be adequate, efficacious, speedy and not of burden -some or onerous in character. Vide Himmat Lal Hari Lall Mehta v. State of Madhya Pradesh and Ors. : [1954]1SCR1122 State of Bombay v. United Motors India Ltd. : [1953]4SCR1069 State of U.P. v. Mohd. Nooh AIR 1958 SC 86; K.S. Rashid and Sons v. Income Tax Investigating Commissioner : [1954]25ITR167(SC) ; A.B. Venketaswaran, Collector or Customs, Bombay v. Ram Chandra Shobraj Wadhwani : 1983ECR2151D(SC) ; and Calcutta Discount Co. Ltd. v. Income Tax Officer : [1961]41ITR191(SC) .
(3.) IN Whirlpool Corporation v. Registrar of D.M. Trade -marks, Mumbai 1998 (7) SCC 243, the Apex Court has observed as under: 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 an alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, (i) where the writ petition has been filed for the enforcement of any of the fundamental rights; or (ii) where there has been a violation of the principles of natural justice; or (iii) where the order or proceedings are held without jurisdiction or the vires of the Act is challenged. ;