Calcutta High Court
Calcutta Mint Employees' Union And Ors. vs Union Of India (Uoi) And Ors. on 27 August, 2004
Equivalent citations: (2005)1CALLT95(HC)
JUDGMENT Arun Kumar Mitra, J.
1. Writ Petitioners herein are Calcutta Mint Employees' Union and General Secretary of the said Union.
2. The main prayers of the writ petitioners are quoted here in below:
a) "A writ of or in the nature of Mandamus do issue commanding the respondents to act in accordance of the evidence as evidenced in the meetings dated 15th April 1998 and 5th May 1998 by and between the parties herein."
b) "A writ of or in the nature of Prohibition do issue restraining the respondents from in any way or manner acting in violation of the said agreement and or in furtherance and the illegal, arbitrary proposal as recorded in the meeting held on 2nd February, 2004 which has been objected to by year petitioners".
c) "A writ of or in the nature of Certiorari do issue commanding the respondents to transmit to this Hon'ble Court all records pertaining to the instant case so that conscionable justice may be done upon perusal of the same".
3. This writ petition was moved on 25.02.04 exparte, in view of urgency of the matter. Thereafter at the time of extension of interim order the learned counsel for the respondents took a point that the writ petition is not maintainable in this writ jurisdiction.
4. According to the learned counsel for the respondents this writ petition should have been moved before the Administrative Tribunal inasmuch as the petitioners are Central Government employees/workers covered under the Administrative Tribunals Act 1985. In such a situation the matter was heard on the preliminary point as to whether the writ petition is maintainable before this High Court or not.
5. According to the learned counsel for the respondents Section 2 of the Administrative Tribunals Act 1985 (hereinafter termed as "said Act") provides that the provisions of the Act shall not apply to:
a) Any member of the Naval, military, or Air Forces or of any other armed forces of the Union;
b) Any officer or servant of the Supreme Court or of any High Court or (Courts sub-ordinate to thereto);
c) Any person appointed to the secretarial staff of either House of Parliament or to the Secretarial staff of any state legislature or a house thereof or in the case of a Union Territory having a legislature of that legislature.
6. The learned counsel submitted that under Section 2(q) defines "service matters" in the manner as follows:
Service matters in relation to a person means all matters relating to the conditions of his service in connection with the affairs of the Union or of State or of any local or other authority within the territory of India or under the control of the Government of India or as the case may be of any Corporation (or Society) owned or controlled by the Government as respects-
i) Remuneration (including allowances), pension and other retirement benefits;
ii) Tenure including confirmation, seniority, promotion, reversal, premature retirement and superannuation;
iii) leave of any kind;
iv) Disciplinary matters; or
v) Any other matter whatsoever".
7. The learned counsel then refers to Section 14 of the said Act for the purpose of establishing the jurisdiction, power and authority of Tribunal.
8. The learned counsel then referred to Section 28 of the said Act and submitted that there is exclusion of Court except the Supreme Court and then he refers to Section 29 of the Act and submits that the pending cases also to be transferred to the Tribunal.
9. The learned counsel for the respondents submits that the petitioners are the Central Government employees/industrial workers and their service conditions are governed under the Industrial Disputes Act, Factories Act, Stanidng Orders Act and other labour laws. So the petitioners can move against the alleged dispute/plaint to the Labour Court, Industrial Tribunal under Industrial Disputes Act or as Central Government employees to Central Administrative Tribunal.
10. The learned counsel submitted that in any view of the matter this High Court has no jurisdiction to entertain the application under Article 226 of the Constitution of India in respect of the alleged dispute relating to service matter of the petitioners.
11. It may be noted in this context that both the petitioners and the respondents filed written arguments but since the question of maintainability is being heard, the other points and merits given, if any, in the written notes and arguments on merit are not herein.
12. The learned counsel submitted that challenging one order, writ petition was moved by the same employees being C.O. No. 9523(W) of 1988 (Calcutta Mint Workers' Union v. India Government Mint and Ors.). The said writ petition was heard finally by Hon'ble Justice Paritosh Kr. Mukherjee (as His Lordship then) and his Lordship disposed of the writ petition by holding that High Court has no jurisdiction under Article 226 of the Constitution of India.
13. It is also submitted on behalf of the learned counsel for the respondents that the petitioners/workers filed one application before Central Administrative Tribunal, Calcutta Bench claiming 19% compensation which was numbered as O.A. No. 115 of 2001 and the said application was disposed of on 08.02.2001 with M.A. No. 74 of 2001 directing the Union of India to take a decision in the matter within 3 (three) months and to communicate the same to the applicants therein.
14. The Government of India accordingly, in terms of order dated 08.02.2001 as referred to above has taken a decision and communicated the decision to the applicant/workers therein.
15. The learned counsel for the respondents then submitted that the petitioners moved this writ petition for implementation of the minutes dated 25.04.1998 and 05.05.1998 and challenging minute dated 23.02.2004 as illegal and arbitrary.
16. However, in conclusion the learned counsel for the respondents submitted that the appropriate jurisdiction is either industrial Tribunal or Government employee or Government employees' Central Administrative Tribunal out in any event it does not come within the writ jurisdiction of the High Court and this writ petition is not maintainable.
17. The learned counsel or the petitioners submitted that Central Administrative Tribunal "(CAT)" have been constituted under Article 323A of the Constitution of India. Under Article 323A of the Constitution of India, Parliament has been empowered to constitute an administrative Tribunal for adjudication of disputes with respect to "persons" appointed to public service and post in connection with the affairs of the Union.
18. According to the learned counsel for the petitioners, the jurisdiction of the administrative Tribunal constituted under Article 323A is controlled by Article 323A and consequently confirming to disputes relating to public service or post or All India Service.
19. Mr. Mitra, the learned counsel for the petitioners submitted that Administrative Tribunal Act 1985 is a law made under Clause (I) of Article 323A of the Constitution of India. Any administrative Tribunal constituted under such law cannot exceed the source of power. Accordingly, under Section 14 of the Administrative Tribunal Act 1985, the jurisdiction of the CAT have been confined to the Civil Service of the Union or civil post under the Union or All India Services [section 14(1A)].
20. The learned counsel further submitted that alteration of the service condition of the mazdoors of Calcutta Mint is the subject matter of this writ petition. In that view of the matter mazdoors of Calcutta Mint are not holders of civil post or are not in civil service or All India Service.
21. The learned counsel submitted that Article 320 of the Constitution of India casts a duty upon the Union of the state to consult Public Service Commission on the mattes relating to recruitment of Civil Service of Civil Post.
22. The learned counsel Mr. Mitra submitted that for recruitment of mazdoors of Calcutta Mint, Public Service Commission have never been consulted by the Central Government. All the mazdoors of the Calcutta have been recruited through employment exchange and the learned counsel submitted that in the supplementary affidavit they have annexed relevant documents which indicate that mazdoors of Calcutta Mint are not in Civil Service and don't hold Civil Post.
23. The learned counsel submitted that no rules regulating recruitment and conditions of service of the mazdoors of Calcutta Mint have been framed under Article 309 of the Constitution of India. Article 309 provides for framing of regulations and conditions of service in case of service and post in connection with the affairs of the Union or appointment of public service. No service rule or disciplinary rules or disciplinary proceeding in respect of the mazdoors have been framed under Article 311 of the Constitution of India.
24. The learned counsel for the petitioners submitted that mazdoors are not in civil service and don't hold civil post. The mazdoors are also not in the All India Service.
25. The learned, counsel submitted had the mazdoors been in civil service or holder of civil post the Public Service Commission could have been consulted for recruitment and there would have been rules under Articles 309 and 311 of the Constitution of India in the matter of recruitment in the said service.
26. Mazdoors are not in All India Services. "All India Services" means services known as Indian Administrative Service or as Indian Police Service or any other service specified under Section 2(A) of the All India Services Act 1951 (section 2 of the All India Services Act 1951).
27. The learned counsel for the petitioners submitted that the mazdoors of Calcutta Mint don't fall within the categories of employees mentioned under Section 14 of the Administrative Tribunal Act, 1985 and the CAT have no jurisdiction to entertain any dispute regarding their service condition because mazdoors are not in civil service or not in All India Services nor holder of any civil post.
28. The learned counsel submitted that the objection has been raised on preliminary point is lack of jurisdiction to entertain a writ petition, and that will be only effective if the mazdoors are the holders of civil post in terms of jurisdictional factor as provided under Section 14 of the said Act.
29. The learned counsel further submitted that no affidavit in opposition has been filed on behalf of the respondents.
30. The learned counsel submitted that in the written note of argument submitted by the learned counsel for the respondents it has been once stated that the petitioners are covered under the Administrative Tribunal Act and then again it has been stated that they are industrial workers and their service conditions have governed by the Industrial Disputes Act.
31. The learned counsel submitted that the industrial Tribunal was constituted before 1947 and prior to incorporation of Article 323B of the Constitution of India. Article 323B empowers an appropriate legislature to make laws in respect of the matters inter alia industries and labour dispoutes. The power given under Article 323B of the Constitution don't oblige the concerned state legislature to make laws to exclude jurisdiction of High Court.
32. The learned counsel submitted that if the service conditions of mazdoors are governed under Industrial Disputes Act or Factories Act or Standing Order Act and other Labour law as contended by Central Government then industrial Tribunal may have jurisdiction to entertain any dispute regarding the service of the mazdoors but not CAT.
33. Industrial Disputes Act don't expressly exclude the jurisdiction of the High Court.
34. The learned counsel then submitted that the power given under Article 323B of Constitution of India don't oblige the concerned state legislature to make laws to exclude jurisdiction of the High Court. It is optional for them to make law under Article 323B and constitute Tribunal for the matter relating to industrial labour disputes. It is also optional for the legislature to make laws to exclude the jurisdiction of all Courts excepting the Supreme Court or not to exclude the jurisdiction of the said Courts. Article 323B provides that the law made under Clause 1 of Article 323B provided for exclusion of jurisdiction of all Courts.
35. After the incorporation of 323(B) of the Constitution of India under 42nd Amendment Act 1976 w.e.f. 3rd June 1947, the Central Government have not made amendment of the said Industrial Disputes Act 1947.
36. The learned counsel relied on two Apex Court judgments [Krishan Prasad Gupta v. Controller, Printing & Stationery) and {State of Orissa v. B.N. Aggarwala).
37. The learned counsel placed reliance on paragraph 41 of the decision reported in 1996 1 SCC (supra) and the said Paragraph is quoted here in below.
"41. It appears strange that although the Act has been applied to persons working in factories etc., the jurisdiction to try their cases has not been given to the Tribunal. It's, indeed, an incongruity. But then incongruity is the habit of legislative drafting".
38. The learned counsel then placed reliance on the observations made in paragraph 5 of 1997 Vol. 2 SCC (supra) and the said paragraph 5 is quoted here in below.
"5. Chinnappa Reddy, J., speaking for the Court, considered all the earlier decisions of this Court including that of Thawardas Pherumal v. Union of India, and with regard to pendente lite interest concluded that as the arbitrator was not a Court within the meaning of Section 34 of Code of Civil Procedure, therefore, he could not award pendente lite interest. With regard to claim of interest for the period before the reference, it was held that the arbitrator could not award interest for the pre-reference period in cases which arose prior to the commencement of the Interest Act, 1978 unless the claimant had a substantive right to get interest under the terms of a contract or under a provision of any law".
39. The learned counsel submitted that in 1996 Vol. 1 SCC (supra) the Hon'ble Apex Court observed that the Act has been applied to persons working in factories etc. The jurisdiction to try their cases has not been given to the Tribunal and this is incongruity in the habit of legislation drafting.
40. The learned counsel then placed reliance on the judgment of Himachal Pradesh reported in 2002(2) Labour Law Journal page-61 and the learned counsel submitted that it has been held that CAT constituted under Administrative Tribunal Act 1985 have no jurisdiction to entertain, delete or decide application for an enforcement of right created or liabilities in Court under the Industrial Disputes Act.
41. The learned counsel submitted that existence of alternative remedy under Industrial Disputes Act is a matter of discretion and it is well settled that alternative remedy don't bar the jurisdiction of the High Court but confers discretion to the High Court in the matter of entertaining or non-entertaining of any writ petition.
42. The learned counsel relied on a decision and another decision reported in 1998 SCC Page 1 and submitted that at least three exhibitions to the principles of alternative remedy are there.
(i) Violation of natural justice.
(ii) Enforcement of Fundamental Right.
(iii) An Oorder being without jurisdiction.
The learned counsel then relied on latest decision of the Hon'ble Apex Court reported in 2003 Vol. 2 SCC page 107 (Harbansh Lal Sahnia and Anr. v. Indian Oil Corporation and Ors.).
43. The learned counsel submitted that in this decision the Hon'ble Apex Court has observed that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion.
44. Heard the learned courlsel for the parties and considered their respective submissions. By way of amendment in the year 1977 Article 323A was introduced and when the vires of the provision was challenged, this was decided in the decision [L. Chandra Kumar v. Union of India and Ors.). By this judgment Clause 2(d) of Article 323(A) and Clause 3(d) of Article 323B were declared ultra vires.
45. It is needless to encumber this judgment by referring to so many decision which arc there where it has been observed that alternative remedy does not stand as a bar. In fact unless there is specific exclusion of the jurisdiction by any particular statute, the writ Court's jurisdiction is not ousted and this is discretionary. Article 323(A) of the Constitution in its clause No. 1 provides "persons appointed to public service and posts in connection with the affairs of the Union or of any State". There is no scope for raising any question that the mazdoors who are the petitioners herein are not the persons appointed to public service. If it is public service, then Section 14 of the said Act does not come in aid of the Respondent's contentions that the writ petition is not maintainable.
46. It has also settled by now that alternative remedy i.e. the Forum of Industrial Tribunal does not go to oust the jurisdiction of the writ Court. It is now also well settled that the alternative forum must be speedy and efficacious and here in view of the decisions referred to above including L. Chandra Kumar's case (supra) it is clear that mazdoors of the Mint are not coming within the purview of the Administrative Tribunal Act.
47. Insofar as the Forum of Industrial Disputes Act is concerned, I respectfully agree with the submissions of Mr. Mitra, the learned counsel for the Petitioner that nowhere in the Industrial Disputes Act jurisdiction of the writ Court has been specifically excluded. Ouster of jurisdiction by a particular statue is one thing and the existence of another jurisdiction in the form of alternative remedy is another thing. The first is discretionary, if it is a writ Court.
In view of the discussions made above, I therefore hold that the instant writ petition is maintainable before this High Court in this writ jurisdiction.
The parties may proceed accordingly by way of exchange of affidavits, if they so like.