Madras High Court
Arasu Viraivu Pokkuvarathu Oozhiyar ... vs State Express Transport Corporation ... on 15 March, 2006
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioner is Arasu Viraivu Pokkuvarathu Oozhiyar Sangam represented by its General Secretary. According to the petitioner, the members of the Union, initially were employed as conductors/technical staff. They were later on appointed as Data Entry Operators and have served in such capacity for over a period of nearly 16 to 18 years. As the respondent Corporation made an attempt to outsource the computer work to outside contractors by calling for tenders, the petitioner filed Writ Petition No. 6491/2002 challenging the tender notice. By Order dated 24.02.2004, this Court allowed the said Writ Petition, by holding that asking the Date Entry Operators/EDP Operators to join in the original posts was illegal and contrary to Clause 11 of the Settlement dated 28.9.1989 entered under Section 12(3) of I.D. Act and violative of Article 14 and 19(1)(g) of the Constitution of India and any change in the conditions of service could be done only after following the procedure contemplated under Section 9A of I.D. Act.
2. Pursuant to the said order, the 2nd respondent, the General Manager (Administration), State Express Transport Corporation Limited, Chennai issued a notice dated 05.7.2005 under section 9A of the Act, proposing to revert 54 Data Entry Operators working in EDP Wing to their original post of Conductor/Technical staff, after the expiry of the period of 21 days i.e. with effect from 27.7.2005. On receipt of the said notice, the petitioner Union issued a strike notice dated 13.7.2005, objecting to the changes proposed to be made in the notice dated 5.7.2005 with a further demand to continue the workmen as Data Entry Operators and to fix the proper scale of pay from the date of appointment with arrears and consequential benefits. The conciliation was held till 4.10.2005. However, the Conciliation Officer forwarded the failure report only on 14.10.2005. In the mean time, by order dated 5.10.2005, the 2nd respondent sought to implement the changes proposed in their 9A Notice. In terms of the said order, the workmen have been reverted from the post of Data Entry Operators to conductor/technical staff. Questioning the same, present Writ Petition has been filed.
3. Mr. D. Hariparanthaman, learned counsel appearing for the petitioner would challenge the impugned proceedings solely on the ground that in terms of Section 20 of the I.D. Act, the conciliation proceedings is deemed to have commenced, the day on which the strike notice was issued and it will conclude only on the date when the failure report was forwarded. He would further submit that the impugned order dated 5.10.2005 which was issued after the conciliation proceedings was deemed to have commenced on the date when the strike notice was issued viz., on 13.7.2005 and hence, the impugned order is liable to be set aside.
4. On the other hand, Mr. R. Thiyagarajan learned senior counsel appearing for the respondents 1 and 2 has submitted that the Notice under Section 9A and the consequential implementation of the same is a matter covered under I.D. Act. In the circumstances, the petitioner could resort only the remedy provided under the said Act and without resorting to the said remedy, the petitioner cannot maintain the Writ Petition and consequently, this Court would have no jurisdiction to entertain the Writ Petition itself.
5. I have given my due consideration to the above submissions.
6. Industrial Dispute is a piece of social legislation, enacted with the sole object of settlement of dispute between the workmen and the Management. "Reversion is an industrial dispute" as defined under Section 2K of the I.D. Act. Such a dispute could be resolved only before the Labour Court or the Tribunal as the case may be, in the event conciliation ends in failure and the Government makes a reference. When rights and obligations created under Industrial Dispute Act, sought to be enforced by the Workmen or Union, such rights and obligations could be enforced only before the forum created under the said Act.
7. On facts, Notice under Section 9A of the Act was issued on 5.10.2005. Strike Notice was issued by the Union on 13.07.2005. Conciliation Officer forwarded the failure report on 14.10.2005. It is the specific case of the petitioner that as the strike Notice was issued on 13.7.2005, the conciliation is deemed to have commenced on the said date and further, the said conciliation proceedings are deemed to be pending till failure report submitted i.e. on 14.10.2005, the impugned Notice under Section 9A of the Act dated 5.10.2005 is per se illegal. As the action of the respondent Management in issuing the impugned Notice pending conciliation proceedings is also an industrial dispute as defined under Section 2K of the Act. Such a dispute could be resolved only before the forum created under the said Act. As the petitioner has got a remedy of raising a dispute, the Writ Petition cannot be entertained.
8. In this regard, the jurisdiction of this Court to entertain such Writ Petitions while a remedy is available under the Act, came up for consideration before the Supreme Court in various judgments.
a) In Rajsthan SRTC v. Krishna Kant , the Supreme Court has observed as follows:
(A) speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil Courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedures followed by civil Courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the Courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and remake the contracts, settlements wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not a civil Court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them.
b) In U.P. State Bridge Corporation Limited v. U.P. Rajya Setu Nigam S. Karamchari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure.
c) The above judgments were quoted with approval by the Supreme Court in Hindustan Steel Works Constructions Limited v. Employees Union wherein it was held that a Writ Petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act unless exceptional circumstances are made out.
d) In Premier Automobiles Limited v. Kamlekar Shantaram Wadke , the Supreme Court has held that it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner.
e) A Full Bench of this Court in the judgment reported in P. Pitchumani v. The Management of Sri Chakra Tyres Limited 2004(3) CTC 1 has held as follows:
that dismissals, transfers and other matters concerning the service conditions of employees governed by I.D. Act, have to be adjudicated only by the forums created under the said statute and not otherwise.
f) In Basant Kumar Sarkar v. Eagle Rolling Mills Limited the Supreme Court has held as follows:
It is true that the powers conferred on the High Courts under Article 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act.
9. On the facts of this case, I do not find either any exceptional circumstance or a very strong case is made for making a departure.
10. For the above reasons, I am not inclined to accept the submission of the learned counsel appearing for the petitioner. Accordingly, without expressing any opinion on the claim of the petitioner, the Writ Petition is dismissed, giving liberty to the petitioner to raise industrial dispute. No costs. Consequently, W.P.M.P. No. 35946/2005 is closed.