Calcutta High Court (Appellete Side)
Mr. Tapas Singha Roy ...For vs Hindustan Steel Works on 21 April, 2010
Author: Aniruddha Bose
Bench: Aniruddha Bose
21.4.2010
W. P. 1265(W) of 2010
Mr. Ashok Kumar Banerjee
Mr. Sarajit Sen
Mr. Tapas Singha Roy ...for petitioners
Mr. P.S. Sengupta
Mr. Soumya Majumder
Mr. Sudhangshu Sil
Mr. S. Dhar ...for respondent no.1
Mr. Manas Kumar Sadhu ...for U.O.I. The writ petitioners are employees of National Jute Manufactures Corporation Ltd., (NJMC), which is an undertaking operated by the Government of India. This company had been operating under loss for quite sometime but it seems at present there is an attempt to revive some of the mills of this company. In this writ petition, the petitioners have challenged the validity of a notice/letter by which they are sought to be retrenched from their service on payment of retrenchment compensation in terms of the Industrial Disputes Act, 1947. I shall refer this letter/notice of retrenchment as the said letter in the later part of this order.
There are altogether thirteen persons who have jointly filed this writ petition, but only one such letter dated 15 January 2010 has been annexed to the petition marked "P13". This letter has been addressed to the petitioner no. 5. It appears that similar letters have been issued to other petitioners also, and this fact has not been disputed seriously by any of the parties to this proceeding. The case of the petitioners, argued by Mr. Ashok Kumar Banerjee, learned Senior counsel, is that the mill at Khardah, where they work, is in the process of being revived, and hence retrenchment of the petitioners were sought to be given effect to illegally.
On behalf of NJMC, a preliminary objection has been raised as regards maintainability of the writ petition. It has been submitted that the petitioners being clerical staff, are covered by the Industrial Disputes Act, 1947 and hence the present writ petition ought to be dismissed on the ground of existence of efficacious alternative remedy. Submission of Mr. Sengupta, learned Counsel appearing for the respondent company is the said Act prescribes an elaborate dispute redressal mechanism and the petitioners ought to have approached the forums constituted under the said Act.
He has relied on several authorities in support of his submission that the writ petition ought to be dismissed on the ground of existence of alternative remedy, and these cases are:-
(i) Hindustan Steel Works Construction Ltd. Vs. Hindustan Steel Works Construction Ltd. Employees Union [(2005) 6 SCC 725].
(ii) A.P. Foods Vs. Samuel & Ors. [(2006) 5 SCC 469]. (iii) Webel Video Devices Ltd. Vs. Prasanta Kumar Das [2007 (3) CHN 8]. (iv) Union of India Vs. Calcutta Mint Employees Union & Ors. [2005 (3) CHN 376. (v) Arjun Hazra Vs. Coal India Ltd. & Ors. [2001(2) SLR 745]. (vi) Khushal Shamraoji Randive Vs. Garden Reach Ship Builders & Engineers Ltd. & Ors. [1997(1) CLR 888]. (vii) Tapas Mandal Vs. Eastern Coalfields Ltd. [1995 Lab. I.C.I. 433].
Submission of Mr. Banerjee on this point is that as per the service regulation of the company, National Jute Manufactures Corporation Limited Service Regulations, 1982, the petitioners are employees of NJMC, and cannot be treated as workmen. The definition of employee under the said Regulation is:-
"Employee" means any person who holds a regular post in the Corporation in the approved scales of pay and allowances as appended to these regulations but does not include casual employees, contract labour, work-charged staff or workmen whose conditions of service are governed by the certified standing orders framed under the Industrial Employment (Standing Orders) Act, 1946."
He has argued that the petitioners being clerical staff are governed by these Regulations, having independent field of operation, and their status have all along been guided by the said regulations. He has specifically drawn my attention to clause 15 of the said Regulations, which lays down the conduct and discipline rules for such employees. In support of this submission, he has also contended that when a voluntary Retirement Scheme was formulated, the clerical staff were included. It was sought to be contended that such Regulation was framed on the basis of a bi-partite Settlement. However, no material in support of such submission has been brought to the notice of the Court.
I shall first address the question as to whether the petitioners come within the definition of 'workman' under the Industrial Disputes Act or not. Section 2(s) of the Act provides:
"Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person -
i) who is subject to the Air Force Act, 1950 or the Army Act, 1950 or the Navy Act, 1957, or
ii) who is employed in the police service or as an officer or other employee of a prison, or
iii) who is employed mainly in a managerial or administrative capacity, or
iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the picture of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
So far as the writ petitioners are concerned, in paragraph 1 of the writ petition it has been clearly indicated that the petitioners are all working as clerical staff in NJMC. Since the definition of 'workman' in the said Act includes any person doing clerical work, the petitioners otherwise come within the definition of 'workman' under the said Act.
Now the question arises as to whether the coverage of the petitioners' service under the Service Regulations preclude them from the dispute redressal mechanism under the Industrial Disputes Act, 1947. Submission of Mr. Sengupta is that the definition of employee as per the Service Regulations excluded "Workmen". But even if one proceeds on the basis that the petitioners' service conditions were guided by the Regulations, I do not think the same ought to prevail over the provisions of the Industrial Disputes Act, 1947.
The service regulations per se do not have any statutory support. When such a regulation becomes incompatible with the scheme of grievance redressal under the provisions of the Industrial Disputes Act, 1947, in such a situation in my opinion the latter would prevail. Holding otherwise would defeat the very purpose of industrial legislations, as in such a situation employers with their better bargaining capacity would be left with blanket power to form regulations to suit their own needs bypassing the protective measures provided for workmen under the Industrial Disputes Act, 1947.
Mr. Banerjee, also emphasised that NJMC was acting in the most arbitrary manner in this matter and was intending to penalize the petitioners for not accepting voluntary retirement scheme, to which large number of employees of the Corporation appears to have had acceded to. On this aspect, he has also brought to my notice certain past litigations between the petitioners and the NJMC. A supplementary affidavit has also been filed on behalf of the petitioners. In this affidavit, it has been stated that the Central Government is seeking to revive several mills run by NJMC including the one at Khardah, being the place of the petitioners' employment. He has further argued that such revival sought to be effected in public-private participation and the intention of the Corporation is to hand over the unit to the private participants after removing the entire staff. He has also submitted that some of the clerks who had accepted the voluntary retirement scheme had been re-employed. It is also the case of the petitioners that the respondents had not demonstrated that the statutory provisions under Section 25F of the Industrial Disputes Act, 1947 stood complied with. His submission is that there being high degree of arbitrariness, the Writ Court ought to exercise its jurisdiction as there is no absolute bar invoking such jurisdiction, even in a case where there is alternative remedy. He has relied on the decision of the Hon'ble Supreme Court in the case of Whirlpool Corporation (1998) 1 SCC 1 in support of this proposition. On the subject dispute, his case is that there has been gross illegality and jurisdictional error on the part of the respondents and on this ground, he urged that the Writ Court ought to intervene. He also stressed on the fact that the alternative process for adjudication was too long drawn, and there was not much factual issues involved in resolution of the subject dispute.
Mr. Sengupta on the other hand has contended that the question as to whether condition for retrenchment exists or not, is in essence a factual dispute and for this reason the forum constituted under the 1947 Act ought to be the appropriate forum as the Writ Court ought not to enter into examination of such factual issues. In fact, he has argued that as there is no denial that the mill has been running in loss for a long period of time, condition for retrenchment stands satisfied.
Having considered rival submissions, in view of the ratio of the judgments cited by Mr. Sengupta, and in particular the decision of the Hon'ble Division Bench in the case of Webel Video Devices Ltd. (supra), in my view, the forum constituted under the Industrial Disputes Act, 1947 would be the appropriate forum for adjudicating the subject dispute. I accept the submission of Mr. Banerjee that there is no absolute bar in law prohibiting the Writ Court to examine and adjudicate on an industrial dispute, if the employer comes within the ambit of the expression "State" under Article 12 of the Constitution. This position was considered by the Hon'ble Division Bench in the case of Webel Video Devices Ltd. (supra), and it was held:
"In Whirlpool, factually it became clear to Court that the authority issuing the show-cause notice had no jurisdiction in law to issue the same. The Registrar of Trade Mark, it was found by the Court, could not act as a Tribunal. It was on the basis of those facts that the Apex Court held that the alternative remedy is not a bar. The facts in the present case are totally different. It is nobody's case that in the facts of the present case, an adjudication by the Industrial Tribunal would have been without jurisdiction. In fact, for such an adjudication, Industrial Tribunal is the appropriate forum. So, this ratio in Whirlpool has not application in the present case."
In this judgment, the Hon'ble Division Bench considered the ratio of the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation (supra). In the present case, there is necessity of examining factual issues, and there is a large body of authorities on which reliance has been placed by Mr. Sengupta for the proposition that in an industrial dispute, resolution under ordinary circumstances ought to be through the forum constituted under the Industrial Disputes Act, 1947.
I am also of the view that the petitioners have made out a strong case for adjudication of the dispute by the forum constituted under the Industrial Disputes Act, 1947. I express this opinion even though in this proceeding. I heard arguments on the question of maintainability of the writ petition only. The issues involved in this proceeding relate to loss of job of thirteen persons, and as regards forum for resolution of the dispute, Mr. Sengupta himself has submitted that forum constituted under the Industrial Disputes Act, 1947 would be the appropriate forum. Moreover, in support of his case on the question of maintainability of the writ petition, arguments were advanced at length as regards the nature of the dispute involved.
In the light of such submissions, I am of the opinion that the appropriate government ought to refer the dispute to the appropriate Tribunal, and no time ought to be lost in pre-reference deliberations.
I am also of the view that this matter shall be adjudicated at the earliest by the forum constituted under the Industrial disputes Act, 1947, once the dispute is referred to such forum.
Under these circumstances, I sustain the preliminary objection raised on the part of the respondents that this Court, in exercise of its Constitutional Writ jurisdiction is not the appropriate forum for resolution of the dispute raised in this writ petition.
At the same time, having considered the submissions of the counsel for the respective parties, I direct the appropriate Government to refer the dispute as to whether the retrenchment of the writ petitioners is justified or not along with any other issue, which the appropriate Government may formulate for adjudication by the appropriate Tribunal within a period of four weeks from the date of communication of this order. For this purpose, it would be open to the parties to approach the appropriate government.
Once such reference is made, the Tribunal shall decide the matter within a period of three months. In the event the jute mill is revived in the manner being contemplated, and the petitioners eventually succeed in the proceeding before the appropriate Tribunal, then the mere fact that a new entity may have joined NJMC for operating mills shall not prevent their reinstatement, if directed by the Tribunal and the private participants, if there is any such participant in the proposed venture, shall be informed at the time of entering into the agreement, if any, which the NJMC or the Union of India may enter into with such private participants, of the proceeding relating to the subject dispute and the direction of this Court contained in this judgment.
This writ petition stands disposed in the above terms.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(ANIRUDDHA BOSE, J.)