Calcutta High Court (Appellete Side)
Indian Airports Kamgar Union & Anr vs The Union Of India And Ors on 23 April, 2019
Author: Abhijit Gangopadhyay
Bench: Abhijit Gangopadhyay
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
(APPELLATE SIDE)
W.P. No. 6550 (W) of 2016
Indian Airports Kamgar Union & anr.
-versus-
The Union of India and ors.
For the Petitioners : Mr. Pradip Kumar Tarafdar
: Mr. Sambuddha Dutta
For the respondents : Mr. Partha Sarathi Sengupta
: Mr. Sabyasachi Mukhopadhyay : Mr. Koushikee Banerjee : Mr. Pranjal Pal Hearing concluded on. : 17.01.2019 BEFORE ABHIJIT GANGOPADHYAY Judge Date of Judgment : April 23, 2019 ABHIJIT GANGOPADHYAY, J. :-
1. The writ application (application, in short, hereafter) has been filed by Indian Airport Kamgar Union affiliated to INTUC and the General Secretary of the said Union against Ministry of Civil Aviation, Government of India and the Airport Authority of India (AAI, in short, hereafter) and different officers of AAI and the Deputy Chief Labour Commissioner (Central) and the Regional Labour Commissioner (Central) challenging certain orders of AAI annexed to the writ application. Such orders are against 31 employees of AAI who are members of the petitioner No.1.
2. Such orders are:
(i) Memoranda issued by AAI against some employees of it ;
(ii) Orders of suspension issued by AAI dated 13th December, 2015, to Debasis Das.
(iii) Stoppage of one increment with cumulative effect in respect of some employees.
Such employees are members of the petitioner No. 1 union.
3. In the matter, at the time of hearing, preliminary objections were raised by AAI on two counts:
(i) The petitioner Union does not have locus standi to move the writ application;
(ii) As there is alternative remedy the writ Court need not interfere into the matter and the petitioners should approach the alternative forum for adjudication of the dispute.
4. In respect of the objection of locus standi AAI has referred to certain judgments. One of the judgments has been reported in (1989) 1CHN 474 (Sand Carrier's Owners' Union
-verus- Board of Trustees for the Port of Calcutta) delivered by a writ Court wherein it has been held that the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. The members of such association may be affected by common order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. Here in this case the petitioner was Lorry Owners Association and others.
5. The next case relied on by AAI has been reported in (1992) 1 CAL LJ 16 (WBSEB Engineer Association -versus- State of West Bengal and Ors).
In this matter, against supersession of some engineers the association moved the writ application but none of the aggrieved engineers joined in the writ and it was held by the Division Bench that the writ was not a representative writ and the writ application was dismissed.
6. Another judgment cited on by AAI has been reported in 74 CWN 1 (Director General Ordnance Factories Employees Association -versus- Union of India and Director General Ordnance Factories). In that matter also it was held that the association cannot bring an application Under article 226; only when its rights as a collective body as distinguished from the aggregate rights of its members are affected challenge can be made by the association. On this account the writ application of the employees association was dismissed.
7. In reply to this point of locus standi the writ petitioners have referred to a judgment reported in (2003) 2 CLT 395 (Forward Seamens Union of India -versus- Union of India & Ors). In this case two cases decided by the Hon'ble Supreme Court reported in AIR 1981 SC 298 (Akhil Bharatiya Soshit Karamchari Sangh -Versus- Union of India and Ors) and the other reported in AIR 1981 SC 344 (Fertilizer Corportion Kamgar Union -versus Union of India), which are now accepted as the leading cases, have been referred to. Referring to the above two Supreme Court judgments the Single Bench of this Court quoted the observation of the Supreme Court that the present jurisprudential trend is a broad based one and based on people oriented approach ensuring accesses to justice through class actions. Further, the said learned Single Judge based his decision on the observation of the Supreme Court in the above cases that the petitioners coming in a large number seeking remedies from Courts through collective proceeding instead of multiplying proceeding is an affirmation of participative justice in our democracy. So the narrow concept on cause of action and 'person aggrieved' has become obsolescent in some jurisdictions.
(Emphasis mine).
The other observation of the Supreme Court by Justice Iyer that the concept of locus standi must be liberalised to meet the challenge of time and it has further been observed that the petition at the instance of the Worker's Union is permissible under article 226.
(Emphasis mine).
8. The petitioner had relied upon another judgment in AIR 1995 Calcutta 194 (The association of Teachers in Anglo Indian School -versus- the association of Aids of Anglo Indian School in India) wherein it has been held by the Learned Single Judge of this Court that the writ petition should not be thrown out on the ground of lack of locus standi on the part of the petitioner. While deciding this, the learned single judge also relied upon the Kamgar Union Soshit Karmachari Sangh case and Fertilizer Corporation's matter reported in AIR 1981 SC 344 and AIR 1981 SC respectively.
9. After considering the arguments of the parties in respect of the locus standi I hold that the Supreme Court in the Soshit Karmachari Sangh case already stated that a writ petition can be filed by a Union representing its members and the petitioner union here, in this case, has the locus standi to move the writ application.
10. In respect of the objection as to alternative remedy I hold against the writ petitioners accepting the submission made by the AAI based on section 33 and 33A of the Industrial Disputes Act 1947 which lays down when the conditions of service is to be kept unchanged during pendency of proceedings and when conditions of service etc can be changed during pendency of proceeding. The petitioners have alleged change of condition of service during conciliation proceeding by the Regional Labour Commissioner.
11. From the challenge thrown by the petitioners in respect of the documents referred hereinabove I find that the disputes between the petitioner and its members and AAI are Industrial Dispute which is connected with the employment of the employees who are members of the union and for which separate mechanism (i.e. alternative remedy) has been provided in the Industrial Disputes Act 1947.
12. Though existences of alternative remedy is not an absolute bar from exercising the writ jurisdiction, the Supreme Court in a Judgment reported in (2014) 1SCC 603 (Commissioner of Income Tax -versus- Chhabildas) has held that unless the statutory authority has not acted in accordance with the provision of the enactment in question or in defiance of the fundamental principles of judicial procedure or has resorted to invoke the provisions which are repealed or order has been passed in violation of the principles of natural justice, the Court will not entertain a writ petition under article 226 of the constitution, if an effective alternative remedy is available to the aggrieved person.
The present case does not come under any of the above four situations when writ jurisdiction can be exercised despite having the alternative remedy. Therefore, here, in this case, existence of alternative remedy creates a bar.
13. Thus, ultimately the writ application fails on the ground of having alternative remedy though I have rejected the contention of locus standi as has been raised by AAI as aforesaid.
Thus the writ application is dismissed.
No costs.
(Abhijit Gangopadhyay, J.)