Gujarat High Court
Varshaben Parshottambhai Trivedi vs Talaja Nagarpalika on 29 January, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/5245/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5245 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5246 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5247 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5248 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5249 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5250 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5251 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5252 of 2017
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VARSHABEN PARSHOTTAMBHAI TRIVEDI
Versus
TALAJA NAGARPALIKA & 2 other(s)
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Appearance:
MR RAJESH P MANKAD(2637) for the Petitioner(s) No. 1
MR. NIKUNJ KANARA, ASST. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 2
MR CHAITANYA S JOSHI(5927) for the Respondent(s) No. 3
MR NIRZAR S DESAI(2117) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 29/01/2020
COMMON ORAL ORDER
1. These are the group of petitions containing identical questing of facts and law and therefore, are being decided by this common judgment and order. The facts are drawn from Special Civil Application No. 5245 of 2017 for the purpose of Page 1 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER adjudication. The facts in capsulized form are as follow:-
2. The petitioner is having SSC pre-primary education and was employed by the respondent Municipality by following the due procedure for selection as a teacher on 16.01.1990 and was posted at Din Daya Balmandir. The petitioner had been in a continuous service all through out and lastly working at Shivaji Balmandir owned, managed and controlled by Talaja Municipality. The petitioner rendered uninterruptedly service as a teacher for more than 22 years.
2.1. It is the say of the petitioner that Municipality paid the salary in cash however, from 2007 it was credited in the petitioner's Bank Account. The pass book of the bank account also indicates the regular deposit of salary by the Talaja Municipality.
2.3. It is the say of the petitioner that along with teachers, assistant known as Tedagar had been working however, the Municipality acted in arbitrary and discriminatory manner as it has regularized the services of Shri Hansaben Trivedi, Chandrikaben Trivedi, Devlattaben Gohil and despite clear vacancies, the petitioner and others have not been given such benefit of regularization and permanency. The petitioner and Page 2 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER others raised their voice for resolving their grievance and also for grant of appropriate pay scale including the Fifth and Sixth Pay Commission benefits so also regularization and permanency. According to the petitioner, the respondent Municipality and their officials got annoyed on the ground that there are no students in the Balmandir and the tedagars were shifted to the office of Municipality and asked to work there. 2.4. The petitioner submitted that Municipality continued the unfair labour practice and stopped paying the salaries to the petitioner and created a situation whereby the petitioner and others may have to given up the jobs. A representation also made on 13.08.2016 to the District Collector and to other dignitaries, however, no reply has been given of the same. The petitioner therefore had consulted Shramjivi Kalyan Sangh as stoppage of the salary was highly objectionable and therefore, notice has been given through the Shramjivi Kalyan Snagh requesting the release of unpaid salary and for redressal of the grievances.
2.5. No effective reply has been given and respondent acted in evasive manner. It also went on asking for supportive documents of the claim of the petitioner and others and later issued a communication dated 19/20.09.2016 stating that the respondent - Municipality has passed a resolution on Page 3 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER 14.08.2013 to close down Balmandir and transfer the staff with students to Integrated Child Development Services (hereinafter referred to as 'ICDS') and therefore, the petitioner and other similarly situated teachers in Tedagar should give a consent to be transferred to the Central Government Scheme within 10 days.
2.6. It appears that a communication dated 23.10.2013 addressed by the Program Officer, ICDS, District Panchayat, Bhavnagar is to an effect that ICDS cannot absorb any permanent workers. The beneficiaries can be absorbed but not staff who are there on the permanent posts. Yet, another Resolution No. 48 has been passed on 30.10.2013 in a general meeting to hand over the staff members of the Municipality along with the students of Balmandir to the ICDS.
3. Grievance on the part of the petitioner is to the effect that by a communication dated 19/20.09.2016 and thereafter, several requests have been made to pay the wages and for regularization and permanency benefits. There had been no response at all. The petitioner therefore issued a final notice through the learned advocate on 22.11.2016 stating the details and urged to release the salaries and benefits on or before 30.11.2016 along with the details of PF deduction etc. The Page 4 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER respondent since has neither paid any amount nor the benefit of permanency and regularization, the petitioner is before this Court seeking following reliefs:-
"(A) The Hon'ble Court be pleased to allow the present petition and further be pleased to declare that the action of respondent Municipality of not paying the due and payable wages from July 2016 onwards to the petitioner is completely illegal, unjust, arbitrary, inhuman act of unfair practice and therefore be further pleased to declare that the petitioner is entitled due and payable regular wages from the month of July 2016 onwards till date with interest and accordingly be pleased to direct the respondent Municipality to pay the same within time bound schedule with interest at commercial rate.
(B) The Hon'ble Court be pleased to hold and declare that the respondent Municipality has failed to observe the requirements under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 in case of petitioner and respondent no.3 employees Provident authorities has failed to take action as empowered under the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 against respondent no.1 Municipality and therefore be pleased to direct respondent no. 3 Provident Commissioner to take immediate steps for recovering of Provident Fund dues of the petitioner right from the date of her joining, i.e. 9-1-1990 till the date and place the compliance report within time bound schedule in the record of this case.
(C) The Hon'ble Court be pleased to hold and declare that in view of the decision rendered by the Hon'ble Apex Court in case of State of Karnataka vs. Umadevi and in particular in view of the directions issued in para 52 of the said verdict respondent Municipality has failed to comply with the directions by regularizing the service of the petitioner as ne time measure and therefore be pleased to direct the respondent municipality to immediately grant benefit Page 5 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER of regularization to the petitioner from the dates petitioner completed her actual 240 days of service and further be pleased to direct the respondent municipality to appropriately fix the salary of the petitioner in the pay scale of Vth, VIth and VIIth Pay Commission and pay the difference of arrear with interest @ commercial rate by account payee cheque within time bound schedule.
(D) During the pendency and final disposal of the present petition, by way of ad-interim and or interim relief Hon'ble Court be pleased to direct;
(i) To the respondent no-1 Municipality to immediately make payment of unpaid wages for the period July, 2016 till 31.1.2017 with interest within the bound schedule and place compliance report on the record of the present case within time bound schedule.
(ii) To the respondent no-3 PF authority to immediately take steps against respondent no-1 municipality and its officials in respect of PF deduction and contribution of petitioner right from the date of joining till date including non observance of statutory requirement and place report in time bound schedule with regard to deduction, contribution, penalty etc. (E) Hon'ble Court be pleased to award the cost of the present petition.
(F) Any other and further relief that may be deemed fit and proper to meet the ends of justice."
4. On issuance on notice, affidavit-in-reply has been filed by the respondent no.3 - the Assistant PF Commissioner who has denied all the allegations and averments but has stated that vide notification dated 8th January, 2011, the Ministry of Labour and Employment, extended the provisions of the Employees Page 6 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter referred to as 'the Act') and made them applicable to the Municipal Councils and Municipal Corporations constituted under sub-clauses (b) and (c) of clause (1) of Article 243Q of the Constitution of India and thereby brought the respondent no.1 within the purview of the Act. Vide letter dated 6th February, 2013, the Assistant Provident Fund Commissioner informed the respondent no.1 that code number under the Act had been allotted to them and they were directed to implement the provisions of the Act.
4.1. A notice came to be issued on 27th March, 2012 to the respondent no.1 as it had not remitted the PF and other dues from 8th January, 2011 and also had not submitted statutory return. The respondent no.3 organization had issued a summons under Section 7A of the Act on 11th May, 2012 and had assessed the outstanding PF and other dues amounting to Rs. 28,70,839/- under Section 7A and Rs. 2,58,041/- under Section 7Q for the period from 8th January, 2011 to April-2012. 4.2. It is the say of this respondent no.3 that the bank account is maintained by the respondent and notice under Section 8F of the Act was also issued by the State Bank of India, Talaja, Bhavnagar for remittance of outstanding amount of Rs. Page 7 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER 31,28,880/- in respect of the order dated 16th November, 2012. The recovery certificate is issued on 4th April, 2013 to recover the pending amount of Rs. 6,44,770/- for the period from 8th January, 2011 to April-2012.
4.3. Thus, the respondent organization played its role according to this reply and relevant proceedings under Sections 7A, 8B, 8G and 8F of the Act against the respondent no.1 as and when necessary, are already initiated.
4.4. It further has stated that respondent no.1 has not disbursed the salary to the petitioner. The PF contribution of the petitioner has not been received by the respondent no.3 organization from August-2016. The respondent - Organization has called for the present status of the PF account of the petitioners from the concerned account group after which the required action was contemplated against the respondent no.1 for non-remittance of PF and other dues.
5. Affidavit-in-reply of the respondent no.1 - Chief Officer, Talaja Municipality has been filed denying all the averments and statements. He also denied all allegations and reiterated that under the scheme of ICDS, the Anganvadis were established. It was not necessary for Municipality to run the Balmandir and Page 8 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER bear the expenses for the same. If there was a permanent staff of Balmandir, then they could be adjusted against some other vacancies. However, the daily wagers could not be and hence, their services were to be terminated. The letter was written to the Collector, Bhavnagar regarding closing of Balmandir on 9th July, 2013, since there were four Balmandirs owned by the Municipality. Average strength of the students and income if looked into, the total income was Rs. 34,310/- against the expenses of Rs. 15,72,225/- in the year 2010-11. In the year 2011-12, against the income of Rs. 31,733/- the expenses was of Rs.17,33,596/-, so was the case in the year 2012-13. 5.1. It was urged that the buildings of the Balmandirs were to be alloted to the Anganwadis and as per the oral talks with the officers of the ICDS, it agreed to absorb all the students who were admitted to the said Balmandirs. There was no set-up of the Balmandirs in Talaja Municipality. Since Talaja Municipality suffered the financial loss, the decision was taken to shut down four Balmandirs and as per the agreement of the officer of the ICDS, the students were to be accommodated there. This has given the details of the resolution passed by the respondent in general meeting held on 19.08.2016. Serious contentions are also raised of directly approaching this Court instead of going Page 9 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER before the Labour Court by her urging that the respondent has adopted arbitrary and unfair practice.
6. Rejoinder affidavit also has been filed by one of the employees denying all contentions. It is not being dilated at this stage.
7. This Court has heard extensively, learned advocate Mr. Mankad for the petitioners who has urged that petitioners had continued to work with the respondent - Municipality. They all had joined the services on different dates. It essentially ranged from the year 1983 to 25th March, 1998. It is also his say that they all worked as teachers and tedagars. Out of eight persons who have approached this Court, three of them have already attained the age of superannuation. One person is likely to attain the age of superannuation on 28th February, 2020. There remains only four employees in whose case the prayers are sought. He has urged that without following any kind of process, the respondent has ended the services of the petitioners. There is no reason as to why this Court should not intervene directly. He also has stated that once the matter has been admitted, the parties may not be relegated to the alternative remedies, relying on the decision in case of K.S.Joy V/S. Indian Institute of Management and Ors, reported in 1994 (1) GLR 57. Page 10 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER
8. Learned advocate Mr. Munshaw has strongly objected to this. He has submitted that there is an alternative efficacious remedy available. The Court ought not to grant any relief. According to him, there are many factual aspects which shall need to be examined closely on recording of the evidence. Moreover, 2003 circular has not been challenged. He further has urged that in the backdrop of the resolution, there was an attempt to absorb the petitioners, however, the petitioners never responded positively to the said communication.
9. At the outset, on hearing both the sides and also on close examination of the pleadings as well as material on record, this Court notices that the matter had been admitted long ago by this Court. The petitioners challenge of their having been deprived of their rights, their non-grant of the work, and following of the alleged discriminatory practice by the respondent no.1 has led the petitioners to approach this Court. They could have gone for the challenge under the Industrial Dispute Act before the authorities described under the ID Act. However, instead of approaching the authorities, they approached this Court directly under Article 226 of the Constitution of India on the ground that arbitrary practices have been adopted by the respondent authority.
Page 11 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER
10. At the outset, the decision rendered in case of K.S.JOY vs. Indian Institute of Management and Ors, reported in 1994 (1) GLR 57 requires to be considered on the aspect of alternative remedy, where the Court has held that once the petition is entertained and heard by the High Court on merits, it would not be proper to relegate the parties to an alternative remedy. Relying on the decision of the Apex Court in case of Hriday Narayan vs. IIT Officer Bombay, reported in AIR 1971 SCC 33, the Court also while considering the petition under Article 226 of the Constitution of India held that availability of the alternative remedy or exhausting of the same before resorting to the petition under Article 226 of the Constitution of India does not oust the jurisdiction of the court. Moreover, it was nearly four and half years of period when the Court was hearing the matter finally and therefore also, it was of the opinion that it would be unjust and unfair to the petitioner to relegate him to the alternative remedy which again according to the Court was not an adequate efficacious remedy.
11. This Court needs to take note of the fact that the petitioners, before the Division Bench, was serving as Office Assistants with the Indian Institute of Management, Ahmedabad whose services came to be terminated by an order, the order Page 12 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER which was come into effect on immediate basis on payment of one month salary and retrenchment compensation. This had been challenged seeking reinstatement in service with all consequential benefit. The order had been challenged on the ground that without affording any opportunity of being heard to the petitioners before the Court and in violation of the principles of natural justice, the order of termination passed which was penal in nature. The Court eventually had directed the IIM to reinstate the petitioners in service on their original posts with continuity in a petition under Article 226 of the Constitution of India.
12. Yet another decision of A P Shah Vs. B M Institute of Mental Health, reported in 1986(2) GLR 910 is where the petitioner was having an interest in the administration of trust had sought to invoke the jurisdiction of the High Court where the trustees failed to obey the lawful directions from competent authority under the Bombay Public Trusts Act. This Court was required to consider whether it should exercise such jurisdiction or should relegate the parties to the special machinery provided under Bombay Public Trust Act for redressal of their grievance. The Court held that this would not mean that the High Court would not have jurisdiction to exercise its extraordinary Page 13 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER jurisdiction under Article 226 of the Constitution of India for issuance of the writ of mandamus and appropriate writs, where a public utility organization disclaims its obligation to carry out the lawful directions of the settlement which was carried out earlier, over and above the role as Public Utility Institution, it was also found to be under an obligation to give notice of closure of its activities assuming that it was an "Industry". The provisions of closures had not been followed and such a closure was in violation of the statutory provisions. The objection on the part of the respondent that this should refrain from exercising jurisdiction till the petitioners exhausts alternative remedy under the Industrial Dispute Act was not found to be unsurmountable difficulty for the reason that apart from the existence of such remedy if at all there is one promo, it was not an absolute bar to the High Court exercising the jurisdiction under Article 226 of the Constitution of India. The Court explained, "the alternative remedy means remedy which is available to the person concerned and which is not dependent on the opinion of the other authority. Where there is appropriate or equally efficacious remedy, the Court should keep its hands off. This is more particularly so where there is statutory prescribed remedy which almost reads in mandatory terms." Relevant findings in case of A P Shah (Supra) read as under: Page 14 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER
"22. In view of the above settled legal position, we do not feel doubt in our mind that the Institute must be treated as one akin to one public utility concern since it has committed itself to a duty to furnish services to the public and it holds itself out to the public as being willing to serve all members thereof and to provide it services at reasonable rates and without brooking any delay. If on such public utility there is a two-fold duty imposed by the statute, namely, the Indian Trusts Act under which it is constituted and the Bombay Public Trusts Act under which it is registered, every person having a legal interest flowing from the discharge of the duty has a right to invoke the writ jurisdiction of this Court by praying for appropriate writs, orders or directions in that behalf, unless such public utility is able to obtain appropriate directions from the competent authority by satisfying it that there is adequate excuse for nonperformance of the public duty. Section 11 of the Indian Trusts Act cast an obligation on the trustees to fulfill the purpose of the trust and to obey the directions of the author of the trust given at the time of creation, except as modified by consent of all the beneficiaries being competent to contract, subject to the exception that the trustees are under no obligation to obey the directions when to do so would be impractical, illegal or manifestly injurious to the beneficiaries. The trustees are, therefore, bound to carry out the directions of the settlement and the only way in which the directions of the testament may be varied is by cyprus doctrine which is applied where from lapse of time and change of circumstances it is no longer possible to apply the property left by the founder or donor in the precise way in which it was directed to be, applied (see: Balkrishna Vishvanath v. Vinayak Narayan AIR 1932 Bombay 191).
Correspondingly if the trustees fail or disclaim to carry out the lawful directions of the settlement, it would amount to a breach of trust and any person having interest in the trust has Page 15 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER a right to approach the competent authority for appointment of new trustees or for appropriate directions as the nature of the case may require. Under Section 34 of the Indian Trusts Act corresponding to Section 56-A of the Bombay Public Trusts Act, the trustees are empowered to apply to the Court of competent jurisdiction for the opinion advice or direction of the Court on any question affecting the management or administration of the trust property or income thereof. This is a power coupled with the duty that in case of any difficulty in the management or administration of the trust, a trustee may seek the opinion or advice of the Court. Similarly under Section 55 of the Bombay Public Trusts Act, the trustees may under the directions of the Charity Commissioner, obtain appropriate directions from the Court of competent jurisdiction, if is not practicable to carry out wholly or partially the original intention of the author of the public trust. A person having interest in the administration of the trust can, therefore, invoke the jurisdiction of this Court in appropriate cases like the present one where the trustees fail to obey the lawful-directions of the settlement without obtaining appropriate directions from competent authority under the aforesaid Act. The High Court, before exercising the jurisdiction would certainly consider whether it should exercise such jurisdiction or should relegate the parties to the special machinery provided under the Bombay Public Trusts Act for redress of their grievances. But this would not mean that the High Court would have no jurisdiction to exercise its extra ordinary jurisdiction under Article 226 of the Constitution for issuance of a writ of mandamus in appropriate case where a public utility like the Institute before us disclaims its obligation to carry out the lawful directions of the settlement which it was hitherto carrying out. In the present case before us, the Institute, apart from its role as a public utility, is under an obligation to give notice of closure of its Page 16 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER activities assuming that it is an industry. It cannot be successfully claimed that the trustees of the Institute which is a public trust have any fundamental right to close down the business since the trust is not carrying on any business at all. It may be possible to contend that the Institute being an industry is entitled to close down its activities after complying with the statutory provisions in that behalf. Section 25-F (a) imposes such an obligation on an employer who intends to close down an undertaking to give a notice in the prescribed manner atleast 60 days before the date on which the intended closure is to be made effective on the appropriate Government stating clearly the reasons for the intended closure, except in cases of those undertakings which are excluded from the purview of the section by the proviso. It cannot be gainsaid that the object of Section 25-FF (a) is to prevent a sudden closure and is envisaged to enable the appropriate Government to decide as to whether it should take any measure in respect of such intended closure and in case an industrial dispute is raised, the Government may make a reference for determining whether such a closure was genuine and real or sham or a camouflage to retrench, and to give such relief as the workmen are entitled to depending upon the findings of the Tribunal. It is no doubt true that the section does not empower the appropriate Government to consider the reasons by itself and make an order against the employer intending to close down the undertaking. Nonetheless if an industrial dispute is raised, the Government may refer the matter to the Industrial Tribunal for determining whether the closure is genuine and real or is sham or bogus and to give appropriate reliefs according to the findings. We are, therefore, of the opinion that the petitioners are entitled to invoke the writ jurisdiction of this Court obviously for the reasons that the Institute is in the nature of a public utility subject to the statutory obligations as aforesaid under the relevant Page 17 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Trusts Act and also because it being an industry under an obligation to comply with the requirement of a prior notice as prescribed under the Industrial Disputes Act. The objection that we should refrain from exercising the jurisdiction till the petitioners exhaust the alternative remedy under the Industrial Disputes Act does not present insurmountable difficulty for the obvious reason that, apart from the existence of such a remedy, if at all one, it is no absolute bar to the High Court exercising the jurisdiction under Article 226 of the Constitution; the alternative remedy means remedy which is available to a person concerned and which is not dependent on the opinion of the other authority. Where there is appropriate or equally efficacious remedy, the Court should keep its hands off. This is more particularly so where there is a statutory prescribed remedy which almost reads in mandatory terms, (see: K.K. Shrivastava v. Bhupendra Kumar ). The High Court has to consider in each case whether alternative remedy is adequate and prompt or whether, in the circumstances of the case, it would not be more convenient, effectual and beneficial to grant the relief by means of a writ, direction or order under Article 226 of the Constitution and then to ask the applicant to seek it by other regular Act remedies (see: Union Of India v. T.R Varma . ). Since the present case before us raises a wider question of great public importance as to whether the Institute being one akin to public utility can close down its activities which are in effect and substance in the nature of public services to which it has committed itself under the Trust Deed in flagrant disregard of the statutory obligations imposed on it by the trust and industrial statutes in the interest of community, we should not feel ourselves dissuaded merely because there is some remedy open to the petitioners under the industrial law by moving the State Government, if it so pleases to make a reference under Section 10 of the Industrial Page 18 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Disputes Act. There is an additional reason for not relegating the parties to the Industrial Tribunal. The closure has been challenged on the ground by the contesting employees as being motivated so as to weed out the petitioners from its employment and also deny the benefit of the award of the Arbitrator to whom reference was made under Section 10A of the Industrial Disputes Act and, therefore, the impugned closure was mala fide. It is settled position of law as indicated in our discussion relating to question No. 3 hereunder that the Industrial Tribunal will not be entitled to consider the merits of a closure and the question of mala fide of the closure is beyond its purview. It would, therefore, be difficult to uphold the contention urged on behalf of the Institute that there is equally, convenient, beneficial and effectual alternative remedy. In that view of the matter, we must answer the first question in the affirmative and hold that the petitioners are entitled to invoke the writ jurisdiction of the Court against the Institute."
13. In case of United Bank of India vs. Satyavati Tondon, reported in 2010 (8) SCC 110 the Apex Court has held thus:
"18. This Court has powers under Article 226 of the Constitution of India to issue to any person or authority, including in appropriate cases, any government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by the part III or for any other purpose are very wide and there is no express limitation on exercise of power, but at the same time, the Court cannot be oblivious of the rules of the self-imposed restraint evolved by the Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution of India. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Page 19 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad AIR 1969 SC 556, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.
19. In Thansingh Nathmal v. Superintendent of Taxes (1964) 6 SCR 654, the Constitution Bench considered the question whether the High Court of Assam should have entertained the writ petition filed by the appellant under Article 226 of the Constitution questioning the order passed by the Commissioner of Taxes under the Assam Sales Tax Act, 1947. While dismissing the appeal, the Court observed as Page 20 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER under:
"The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self- imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."Page 21 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER
20. In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, a three-Judge Bench considered the question whether a petition under Article 226 of the Constitution should be entertained in a matter involving challenge to the order of the assessment passed by the competent authority under the Central Sales Tax Act, 1956 and corresponding law enacted by the State legislature and answered the same in negative by making the following observations:
"Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub- section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage:
"There are three classes of cases in which a Page 22 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . .the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v.
London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v.
Gordon Grant & Co. Ltd. and Secretary of State v. Mask & Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
21. The views expressed in Titaghur Paper Mills Co. Ltd. v. State of Orissa (supra) were echoed in Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260 in the following words:
"Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-
suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Page 23 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged."
22. In Punjab National Bank v. O.C. Krishnan and others (2001) 6 SCC 569, this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed:
"5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short "the Act"). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum.
6. The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is a hierarchy of appeal provided in the Act, namely, filing of an appeal under Section 20 and this fast-track Page 24 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER procedure cannot be allowed to be derailed either by taking recourse to proceedings under Articles 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the court under Articles 226 and 227 of the Constitution, nevertheless, when there is an alternative remedy available, judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Article 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."
23. In CCT, Orissa and others v. Indian Explosives Ltd. (2008) 3 SCC 688, the Court reversed an order passed by the Division Bench of Orissa High Court quashing the show cause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy.
24. In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168, the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution.
Paragraphs 29 and 30 of that judgment which contain the views of this Court read Page 25 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER as under:-
"29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.
30. The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other Page 26 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER factors.
14. The Court in appropriate cases in its discretion may direct the State or its instrumentalities, as the case may be, to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly, in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law.
15. In case of Genpact India Private Limited vs. Deputy Commissioner of Income Tax & Anr., reported in 2019 (16) Scale 667, the Apex Court considered the questions of alternative remedy as under:
"15. We now turn to the question whether the High Court was justified in refusing to entertain the writ petition because of availability of adequate appellate remedy. The law on the point is very clear and was summarised in Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603 as under:-Page 27 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER
"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court.
It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the 2 (2014) 1 SCC 603 Civil Appeal No. 8945 of 2019 @ SLP(C) No.20728 of 2019 Genpact India Private Limited v. Deputy Commissioner of Income Tax & Anr. petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, AIR 1958 SC 86, Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433, Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107 and State of H.P. v. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, AIR 1954 SC 207, Sangram Singh v. Election Tribunal, AIR 1955 SC 425, Union of India v. T.R. Varma, AIR 1957 SC 882, State of U.P. v. Mohd. Nooh(Supra), and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras, air 1966 SC 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy Page 28 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar, AIR 1965 SC 1321, Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436, S.T. Muthusami v. K. Natarajan, (1988) 1 SCC 572, Rajasthan SRTC v. Krishna Kant, (1995) 5 SCC 75, Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293, A. Venkatasubbiah Naidu v. S. Chellappan, (2000) 7 scc 695, L.L. Sudhakar Reddy v.
State of A.P., (2001) 6 scc 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC 509, Pratap Singh v. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. v. ITO, (2003) 1 SCC 72].
15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions 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 when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, AIR 1964 SC 1419, Titaghur Paper Mills case, (1983) 2 SCC 433: 1983 SCC (Tax) 131 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available Page 29 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C., (2018) 3 SCC 85, the principles laid down in Chhabil Dass Agarwal (Supra) were reiterated as under:
"The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal (Supra)"
16. We do not, therefore, find any infirmity in the approach adopted by the High Court in refusing to entertain the Writ Petition.
The submission that once the threshold was crossed despite the preliminary objection being raised, the High Court ought not to have considered the issue regarding alternate remedy, may not be correct. The first order dated 25.01.2017 passed by the High Court did record the preliminary objection but was prima facie of the view that the transactions defined in Section 115QA were initially confined only to those covered by Section 77A of the Companies Act. Therefore, without rejecting the preliminary objection, notice was issued in the matter. The subsequent order undoubtedly made the earlier interim order absolute. However, the preliminary objection having not been dealt with and disposed of, the matter was Page 30 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER still at large.
In State of U.P. v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti and others (2008) 12 SCC 675 this Court dealt with an issue whether after admission, the Writ Petition could not be dismissed on the ground of alternate remedy. The submission was considered by this Court as under:
"38. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari, AIR 1992 ALL 331 that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the headnote of All India Reporter (p. 331), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court. The relevant para 2 of the decision reads thus: (Suresh Chandra Tewari case, AIR p. 331) "2. At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above contention, we do not feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed." (emphasis supplied) Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by a writ court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writ petition is not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Page 31 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ petition albeit wrongly and granted the relief to the petitioner."
15.1. The law on the alternative remedy is well established and the principle of law which is reiterated is that the writ jurisdiction of the High Court is not to be exercised when an efficacious alternative remedy is available. It is a policy convenience and discretion of the Court. It is undoubtedly within the Courts discretion to grant relief under Article 226 of the Constitution of India however, the court would be slow in interfering if there is an adequate efficacious remedy. It is also held by the Apex Court that it is not the law that, once the petition is admitted, the Court will be precluded to dismiss the petition on the ground of alternative remedy, as in case of Sureshchandra Tiwari AIR 1992 Allahabad page 331, it is not the law laid down. The Apex Court has further held that as a proposition of law, it cannot be laid down that once the petition is admitted, it could never be dismissed on the ground of alternative remedy. If such a bald contention is upheld, even the Apex Court cannot order dismissal of the writ petition which ought not to have been entertained by this Court under Article Page 32 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER 226 of the Constitution of India in view of the availability of alternative and equally efficacious remedy to the aggrieved party, once the same has been entertained even wrongly and granted the relief to the petitioner. The Apex Court in case of Genpact India Private Limited (supra) has held thus:-.
"17. We do not, therefore, find any error in the approach of and conclusion arrived at by the High Court. It is relevant to mention that the concessions given on behalf of the Revenue as recorded in the directions issued by the High Court also take care of matters of prejudice, if any. Consequently, the appellant, as a matter of fact, will have a fuller, adequate and efficacious remedy by way of appeal before the appellate authority."
16. In case of Whirlpool Corporation vs. Registrar of Trade Marks reported in 1998 (8) SCC 1, the question of alternative remedy is again deliberated as the question was raised before the Apex Court in relation to the maintainability of the petition under Article 226 of the Constitution of India. The Apex court held that the existence of the alternative remedy is not Constitutional bar to the High Court's jurisdiction but, is a self imposed jurisdiction where in three contingencies the alternative remedy would not operate as a bar namely (1) where the writ petition seeks enforcement of any Fundamental Rights, (2) where there is violation of principles of natural justice, or (3) Page 33 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Where the order or the proceedings are wholly without jurisdiction or the vires of an act is challenged.
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".
15. 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 the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 16.1. From the conspectus of the legal authorities, it can be deduced that the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India shall need to record all the relevant facts and circumstances into consideration. The petitioner, if has an Page 34 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER alternative efficacious remedy for resolution of the dispute by way of self imposed limitation, the High Court, is not to, as a rule of policy, convenience and discretion rather than a rule of law, should relegate the parties to the alternative remedy. This undoubtedly could not mean that it has no powers to grant the reliefs despite the existence of alternative remedy, where the three contingencies, detailed above in case of Whirlpool Corporation (supra) exists. The Court also shall need to ensure that in the petition there is no involvement of any complex and disputed questions of facts requiring to be agitated by way of alternative remedy. These power of prerogative writ being the plenary powers in nature, the same are not limited by any other provisions of the Constitution. The Court has a discretion to entertain or not entertain writ petition and it will have to ascertain on the strength of the material available as to whether it requires to exercise the powers under Article 226 of the Constitution of India. In the event of effective and efficacious remedy available, the Court normally would not exercise the same. The alternative remedy would also not to operate as a bar at-least in those three contingencies where, the writ petition is filed for enforcement of Fundamental Rights or when there is violation of principles of natural justice or the order of proceedings are wholly without jurisdiction or the vires of the act Page 35 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER has been challenged.
17. With this statement and principles of law, in the instant case, if one can see the nature of allegations made by the petitioner which is not only for the enforcement of the fundamental rights for challenging vires of the act, however it has emphasized on the breach of principles of natural justice and also emphasized that the orders and the proceedings are wholly without jurisdiction. Despite the admission of the matter, after bi-partite hearing and even in wake of a serious resistance on the part of the respondent of availability of alternative remedy though this court is not constrained not to relegate the parties merely on the ground of admission of the matter, in wake of the peculiar facts existing on record, the Court is not acceding to the request of Mr.Nirzar Desai, the learned Counsel of relegating the parties to the alternative remedy.
18. It is an undisputed facts that the respondent municipality after following due procedure for selection of teacher and also of tedaghar have appointed the petitioners and they have been working with the respondent municipality for nearly almost 25 years and there has been an uninterrupted service of each of the petitioners. They have an impeccable records. There is neither a complaint nor any memo nor any departmental proceedings of Page 36 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER any kind against any of these petitioners. Their service also has not been discontinued nor they have been discontinued by virtue of any order of the Court.
18.1. The municipality initially had been paying salary in cash and from the year 2007, their salary had been credited in the respective Bank Accounts. The Passbook of the saving bank account of each of the petitioner has been produced before this Court, which has not been in any manner disputed by respondent authorities. It was only after the State Government stopped supporting Balmandir, the municipality had stopped paying the salaries to the petitioners. No regularization or permanency has been granted, they have been paid only the minimum wages. Although, there are couple of other colleagues of theirs who had been granted permanency. There exists sanctioned posts from the year 1971.
18.2. In case of present petitioner, as can be noticed from the affidavit-in-reply of PFO, the Ministry of Labour and Employment vide notification dated 08.01.2011, extended the provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952 to the Municipal Counsel and Municipal Corporations constituted under Sub-Clauses (b)(c) of Clause-1 of Article 243 Q of the Constitution of India, thereby, the Page 37 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER respondent no.1 has been brought in the purview of the Act. The PF Commissioner informed all the additional central and Regional Provident Fund Commissioners vide letter dated 21.01.2011 and accordingly, the code number also have been allotted and the respondent have been directed to implement the provisions of the Act. The respondent no.3 also issued order under Section 7(A) and communicated to the respondent no.1 on dated 18th July, 2012 by working out an assessment, of outstanding due and other dues amounting to Rs.28,70,839 and Rs.2,58,041/- under Section 7Q for the period 08.01.2011 to April, 2012. A notice under Section 8F was also issued to the state Bank for remittance of the outstanding amount and the recovery certificate was issued to recover the pending amount. It appears that the respondent no.1 had remitted the PF and other dues up to July, 2016 which included the contribution of the present petitioners and they have been covered from 08.01.2011 to July, 2017. The respondent no.1 since had stopped disbursing salary to the petitioner, the PF contribution also has not been received by the respondent no.3 organization from August, 2016. The PF Authority had called for the details and notice also had been issued to the respondent no.1 for non remittance of the dues of the petitioners however, it had not done anything after the issuance of the notice, as per the say in its reply on 29th Page 38 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER September, 2017. At the time of hearing of this petition also, the PF Authority has not been able to state as to what further actions has been taken. These facts have remained unchallenged and undisputed, the only defence raised on the part of the respondent municipality is that the non support on the part of the State Government and the introduction of the ICDS having left no choice with the municipality which was not in position to bear the expenses. The inflow of the income is too meager and outflow is huge therefore, the choice was given to the petitioners to joint ICDS and in wake of absence of any consent or the reply on their part, it has found itself helpless as it could not have continued the services.
21. This Court notices the communications between the parties where the option was given to the petitioners on 20th September, 2016 as to whether they are ready to perform their duties at ICDS and the Anganwadi administered by ICDS as per the resolution of no.48 dated 30th October, 2013 of municipality. If either the consent or the refusal is not communicated in ten days' time, it was to be presumed that they were not ready to work with ICDS.
22. The reply has been given by all the petitioners on 29 th September, 2016. According to them, they are permanent Page 39 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER employee of Talaja Municipality and they can not be made to work for a project. They had been removed from the working of Balmandir from 06.06.2016 and were made to sit in Municipality Office without any work and without payment of any wages. They have categorically refused to be a part of any project. 22.1. After this reply of 29th September, 2016 there had been no communication from the respondent Municipality. The notice thereafter, had been given on 22.11.2016 to the Chief Officer, Talaja Municipality by these petitioners making a request for disbursement of pay and also fixing the salary as per 5th and 6th Pay Commission and to give all benefits of regularization and permanency. That had been replied to on 22.11.2016. According to this notice they were serving on an ad- hoc basis in a new set-up there are no posts in Balmandir, the daily wagers are on part time basis and it is unfair to say that there was any unfair labour practice. The set-up which has been sanctioned on the basis of the population on 21st June, 2011 there was already a petition being Special Civil Application No. 17129 of 2015 where the High Court had ordered on 02.11.2015 which is self explanatory and therefore the petitioners cannot be appointed on permanent basis. This Court notices that prior to that the Collector, Bhavnagar addressed a communication to the Page 40 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Chief Officer on 14th August, 2013 requesting them to close Balmandir and all the students will have to be adjusted in Balmandir run by ICDS, the separate set-up under Talaja Municipality has not been accepted.
23. A Communication dated 23rd October, 2013 of the Programme Officer communicates with the District Panchayat that there is no question of adjusting any of the daily wagers or contractual employee or those who are working on permanent set-up to accommodate in a project of ICDS as there are 23 helpers and 24 workers who are working on honorarium in 24 anganwadis however, they stated that they would not mind accommodating the beneficiaries. Thereafter, on 30th October, 2013, vide resolution No.48 it had been decided by the General Assembly to handover the entire education staff with the children of Balmandir to ICDS without buildings. What is surprising is that on 23rd October, 2013 if there was already a communication that ICDS cannot accommodate any employee who was on contractual basis working with municipality or as temporary or on a permanent basis and when it only permitted the beneficiaries to be accommodated the Balmandir run by the ICDS, in the subsequent resolution no.48 on 30th October, 2013 still insist once on the part of Municipality is of transferring of Page 41 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER the staff. Not only that, but, the hight is that even in a communication of 19/20th September, 2016, this aspect is being reiterated by the municipality knowing fully well that it is not possible to so do it. The petitioners also had refused in no uncertain terms and they were also given work undisputedly as per say of the respondent in the office of municipality. Annexure-T produced by the respondent where the petitioner Maltiben is given work on inward/ outward table, Chandrikaben Trivedi on the marriage registration, Devlataben Gohil for Registration of Births and Deaths, Hemaxiben Dave for recovery, Heenaben Trivedi for recovery under the shop and establishment act, Roshniben for issuing certificate of income, Vershaben Trivedi in library, Geetaben Baraiya and Rekhaben Gohil for issuance of receipts, Hansaben Trivedi in the store room and Bhavnaben Rathod for tedaghar recovery. These are all the petitioners in different petition. This had been ordered by Chief Officer and the President of the Talaja Municipality on 06.06.2016. This had been duly complied with as per the note made by the concerned clerk addressed to the President and Chief Officer. The stand taken by the respondent is that the Nagarpalika has continued to pay the wages to the petitioner till the 2016 after the Balmandir came to be closed in the year 2013. These wages had been paid through vouchers and it is only after Page 42 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER the Collector addressed the letter on 14.08.2013 to the Chief Officer for closure of Balmandir of Talaja Municipality, it had been clarified in the communication by the Collector that the ICDS has agreed to absorb children of Balmandir and there is no approved separate sanctioned or setup for Balmandir which were needed to be closed down. The Chief Officer of Municipality had addressed letter to the DDO, Bhavnagar. It also had given detail of surplus staff of 17 employees to the DDO, Bhavnagar, the Officer of ICDS addressed a letter to the DDO where as mentioned hereinabove, it had said that no provision could be made for absorption of ad-hoc or contractual employees.
24. The Court notices that the stand taken by the respondent is that the daily wagers were appointed without passing any resolution or without any sanctioned set-up in the municipality. Again, according to the respondent, the students of the Balmandir had been absorbed by the ICDS of the different type of the employees and there was no set-up with Talaja Municipality to adjust these surplus employees who were the back-door entries and therefore, they were not entitled to any kind of relief. They worked only till June 2016 and thereafter they never worked with the Municipality. It is also their stand that guidelines are issued that regularization of permanency Page 43 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER cannot be effected de-hors the statutory provisions or the guidelines and the municipality cannot absorb employees without there being sanctioned a setup. The initial appointment being irregular without following procedure or rules and regulations they cannot insist on any relief.
25. This Court notices that in the prayer clause what has been requested by the petitioners is that they be paid wages from July 2016 onwards for their termination has been totally illegal, unjust and arbitrary. They have further asked for contribution of the PF as required under the law and also the rights given by the Apex Court in case of State of Karnataka Vs. Uma Devi' particularly referring to para 52, since there is a failure on the part of the municipality to avail any opportunity of hearing and the action having been taken in clear violation of principles of natural justice.
26. This Court notices a blatant violation on the part of the municipality in unilaterally and completely arbitrary manner ending the services of these petitioners. It is true that the Balmandirs have been closed and the Collector had proposed the beneficiaries of the Balmandir and the surplus staff to be transferred to ICDS as the entire functioning of the Balmandir was to be taken over by those managing the ICDS project. Page 44 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER However, when the officer concerning the administration of the ICDS had refused on the ground of non availability of the permanent setup the municipality still insisted on getting the consent from the present petitioners in the year 2016 when in the Year 2013 it was quite clear and apparent from the stand of the ICDS that it cannot absorb any of these employees. The resolution no.48 passed in the General Meeting also appears to be a mere eye wash as no purpose could have been served when the body which was to accept the beneficiaries and the staff had point blank refused any such absorption for there being no permanent set up or no scope to so do it.
27. This Court notices subsequent transfer of all these petitioners to the appropriate table by the municipalities and this having also been reported to the chief officer and to the president after due compliance of its direction issued to the concerned officer. Despite this clear and equivocal chronology of events, there is not a whisper from the respondent municipalities as to under what circumstances without availing any opportunity or without following the law such act of termination is done. Even if they were construed to be mere rojamdars, by following the basic required statutory provisions at the time of termination of their services, their services could not have ended. Page 45 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Respondent no.1 instead stopped paying any wages to the petitioners and also has chosen not to permit them to work any further without the slighter regard for the number of years they have spent. This is wholly discriminatory, arbitrary and unfair practice to say the least, on the part of the respondent authority which would warrant interference on the part of this Court. Not only to permit, the entertainment of the petition under Article 226 of the Constitution of India but also to grant other and further reliefs. All the petitioners are already selected after following due procedure. They are not back-door entries. Their co-workers are absorbed after closure of Balmandirs. Three persons have reached the age of superannuation and one person attained such age on 28.02.2020. After 2013 they did work till 2016 and without an iota of procedure, despite their having replied to the proposal of their shift in ICDS (which was though thoughtless and without due application of mind, after the communication dated 30th October, 2013 from ICDS) and after their accommodation at Municipality.
27.1. This is least expected from the Municipality which is an extended face of the State which is suppose to be the model employer. The least can happen is not to discriminate qua those who were their co-workers and to deal with their issues in a legal Page 46 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER framework. Action being devoid of principles of natural justice and in clear violation of settled cannon of law, deserves interference.
28. Resultantly, all the matters are ALLOWED . The respondent-Municipality is DIRECTED to reinstate each of the petitioners in each matter and to pay all of them, except three petitioners of SCA Nos. 5247/2017, 5251/2017 and 5252/2017 who no longer be serving due to age criteria, the wages/ salary from July, 2016 onwards, equivalent to that giving to those who in service with them and made permanent on the principle of fair wages and policy of equal pay for equal work and also to make contribution/pay amounts towards EPF and other miscellaneous provisions, in accordance with law.
28.1. Further, let the steps be taken by respondent No.3- EPF Commissioner in this regard, IMMEDIATELY . If, the remaining amount is not deposited by the respondent- Municipality within the period of TWELVE WEEKS from the date of receipt of a copy of this order again if, as per the decision of the 'State of Karnataka Vs. Uma Devi' (Supra), the respondent-Municipality has not undertaken the task of regularizing the services of the petitioners-employees, their case shall be considered for the same and if, the respondent- Page 47 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020 C/SCA/5245/2017 ORDER Municipality has already carried out that exercise and has denied such benefits to them, then, the petitioners shall be at liberty to take recourse available to them under the law.
29. DISPOSED OFF , accordingly.
(SONIA GOKANI, J) Bhoomi/ Uril Rana/ Umesh Page 48 of 48 Downloaded on : Mon Jun 15 08:16:13 IST 2020