Rajasthan High Court - Jaipur
Gopi Lal Teli vs The State Of Rajasthan And Ors. on 1 March, 1995
Equivalent citations: [1995(71)FLR551], (1995)IILLJ1064RAJ, 1995(2)WLC1, 1995(1)WLN300
JUDGMENT
Anshuman Singh. J.
1. Learned Single Judge at the time of admission of S.B. Civil Writ Petition No. 3011/90 Gopi Lal Teli v. State of Rajasthan and Ors., after hearing the counsel for the parties on the question of maintainability of the writ petition under Article 226 of the Constitution of India on the ground of alternative remedy, referred the following question for determination by a Larger Bench of more than three Judges:
"Whether a writ petition for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, should be directly entertained as a matter of course, ignoring the statutory remedy provided by that Act?
On the reference made by the learned Single Judge, Hon'ble the Chief Justice Constituted Larger Bench consisting of five senior Judges of this court and in pursuance of the said order, the question referred by the learned Single Judge came up for consideration before us.
2. Before we proceed to consider the arguments advanced by the learned counsel for the parties, we think it proper to narrate the facts of the aforesaid Writ Petition giving rise to the reference in question.
3. Integrated Guineaworm Eradication Project is apart of Sanitation Water and Community Health Project of the Government of Rajasthan. The petitioner passed B.Com. Examination in 1st Division in 1980 from Udaipur University. He was born on 2nd April, 1957 and belongs to backward community (Teli). He was appointed as L.D.C. in Sanitation Water and Community Health Project at Salumbar purely on ad hoc basis for a period of two months on the fixed salary of Rs. 600/- per month vide order dated March 28, 1988. There was specific stipulation in the order of appointment that the services of the petitioner shall stand automatically terminated on expiry of period of two months. Before the expiry of two months, the services of the petitioner were extended with effect from May 28, 1988 to June 30, 1988 on the same terms and conditions, vide order dated May, 27, 1988. The extended period by order dated May 27, 1988 elapsed on June 30, 1988 but the petitioner was allowed to continue in service and by order dated July 7, 1988 the services of the petitioner were further extended from July 1, 1988 to August 31, 1988. Similarly, although the period fixed by the aforesaid order had elapsed on August 31, 1988, the petitioner was allowed to continue in service and later on , by order dated September 5, 1988 his services were again extended from September 1, 1988 to October 31, 1988. From the facts, it would be evident that the petitioner worked without any order from September 1, 1988 to September 4, 1988. It was further alleged that the services of the petitioner were extended from November 1, 1988 to December 31, 1988 by order dated November 1, 1988 for a period of two months. Here again, although period fixed by the aforesaid order had elapsed on December 31, 1988 the petitioner was continued in service and it was later on that by an order dated January 4, 1989 the services of the petitioner were extended from January 1, 1989 to February 28, 1989. The period extended by order dated January 4, 1989 also expired on February 28, 1989, but the petitioner was allowed to work and subsequently, by order dated March 18, 1989 further extension was given to him with effect from March 1, 1989 to March 24, 1989 and therefore, the petitioner again worked without an order from March 1, 1989 to March 17, 1989. It appears that the Project at Salumbar was closed and the entire staff was shifted to Rajsamand, where the project was newly started. Almost all the staff, light from the Project Officer to Class IV were shifted to Rajsamand and in pursuance of this the Project Officer again appointed the petitioner with effect from March 25, 1989 by order dated March 31, 1989. This appointment was for a period commencing from March 25, 1989 till May 31, 1989. Here again the petitioner worked without any order from March 25, 1989 to March 30, 1989. The services of the petitioner were further extended up to 31st July, 1989 by order dated 30th June, 1989. The said period again, though elapsed on May 31, 1989, yet the petitioner was allowed to continue in service and vide order dated June 30, 1989 his services were extended from June 1, 1989 to July 31, 1989. The extended term though expired on July 31, 1989, yet the petitioner was allowed to continue in service without any order up to August 29, 1989. It appears that the extended period again expired and the petitioner was again allowed to work without any order from October 1, 1989 to October 17, 1989 and the services were again extended from October 1, 1989 to November 30, 1989. The petitioner again worked without any order from December 1, 1989 to December 15, 1989. However his services were again extended from December 1, 1989 to February 28, 1990 by order dated December 16, 1989. The extended period again expired and he was allowed to work without any order from March 1, 1990 to March 4, 1990. The services of the petitioner were again extended from May 1, 1990 to June 30, 1990.
4. Initially, the petitioner was appointed on the fixed salary of Rs. 600/- per month by order dated March 28, 1988. However it was increased to Rs. 750/- per moth from June 1, 1989. A copy of the order dated June 30, 1989 has been filed as Annexure-6 to the writ petition. The petitioner was allowed house rent allowance @20% of the wages w.e.f. July, 1988. It was averred that the petitioner was asked to hand over the charge to one Shri Anand Prakash, L.D.C. verbally on June 30, 1990 without there being any order of termination of his services. There-upon, the petitioner made a representation dated July 1, 1990 to the Project Director. However, the representation made by the petitioner did not cut any ice and ultimately, the petitioner is alleged to have approached the Commissioner, Tribal Area Development Agency, Udaipur, who is also Coordinator of the Project, through an application dated July 13, 1990. However, that too did not yield any fruitful result and ultimately, the petitioner approached this Court by means of a writ petition under Article 226 of the Constitution of India for issuance of a writ to the respondents to take the petitioner on duty and to treat him in service right from July 1, 1990; to make payment of salary payable to L.D.C. in the grade of 880-1680 with effect from March 30, 1988 as provided in the Rajasthan Civil Services (Revised Pay scale) Rules, 1987 and thereafter as revised in terms of the Rajasthan Civil Services (Revised Pay scales) Rules, 1989 to regularise his services against the sanctioned post and for awarding compensation of Rs. 5,000/- for mental agony suffered by him as a result of termination of his services.
5. When the matter came up for admission before the learned single Judge the learned Single Judge on April 29, 1991 issued notices to the respondents to show cause as to why the petition may not be admitted. On April 27, 1992 Mr. Maheshwari sought time to file reply and the matter was ordered to be listed after 10 days, during which reply was to be filed by the respondents.
6. In the reply filed on behalf of respondents No. 2 and 3, most of the facts as narrated in the writ petition by the petitioner were emphatically denied, meaning thereby, that the facts of the case were disputed. It was also alleged on behalf of the respondents that the petitioner had concealed material facts and was guilty of concealment. In para 16 of the counter affidavit, it was specifically pleaded that the petitioner had an alternate remedy of raising an industrial dispute for non-fulfilment of requirements of Section 25F of the Industrial Disputes Act (hereinafter to be referred to as "the Act") and as such the petition was not maintainable and was liable to be thrown out on the ground of availability of alternate remedy. It appears that the learned Single Judge specifically directed the counsel for the parties to address on the question of existence of alternate remedy, particularly in the light of the judgments delivered by the Full Bench of this Court in Smt. Indu v. Municipal Council, Jodhpur and Ors. RLR 1991 (1) Page 68 and the subsequent Division Bench Judgment of this Court in Rajasthan Pul Nigam Workers Union and Anr. v. Rajasthan State Bridge Construction Corporation Ltd. and Anr. R.L.R. 1991(2) Page I and ultimately, after hearing the counsel for the parties, it appears that the learned Single Judge felt that in view of the aforesaid two decisions, large number of writ petitions were filed in this Court invoking the writ jurisdiction under Article 226 of the Constitution of India without taking recourse to the normal remedy under Sections 10, 12 and 33 C of the Act and it appears that on the basis of the views expressed by this Court in the aforesaid two decisions, the writ petitions were being entertained and as such, he thought it proper to refer the aforesaid question for consideration by a Larger Bench.
7. Before we proceed to answer the question referred to us by the learned Single Judge, we consider it proper to refer to the provisions of Chapter V-A of the Act for the reasons that the controversy regarding maintainability of a writ petition without exhausting alternative remedy in the present case, is confined only to the matters arising out of the disputes referred in the aforesaid Chapter.
8. Section 25A of the Act provides that Section 25C and 25F shall not apply to Industrial establishments to which Chapter V-B applies, or (a) to industrial establishments in which less than fifty workmen on an average per working day have been employed in the preceding calender month; or (b) to industrial establishments which are of a seasonal character or in which work is performed only intermittently. Section 25B defines the meaning of 'continuous service'. Section 25C deals with the right of workmen laid off for compensation. Section 25D deals with the duty cast on the employer to maintain muster rolls of workmen. Section 25E mentions the circumstances or the contingencies in which the workman who has been laid off, shall not be entitled to compensation. Section 25F deals with the conditions precedent to retrenchment of workmen. Section 25FF deals with compensation to workmen in case of transfer of under-takings. Section 25FFA lays down that in case of lay off the employer has to give atleast 60 days' notice before the date on which intended closure is to become effective. Section 25FFF prescribes compensation to workmen in case of closing down of under-takings. Section 25G deals with the procedure for retrenchment and Section 25H deals with re-employment of retrenched workmen. Lastly, Section 25J deals with effect of laws which are inconsistent with the pro visions contained in the aforesaid Chapter.
9. The instant case, which necessitated the referring of question by the learned Single Judge related primarily to the provisions of Section 25FA and 25-FB of the Act. From the above, it appears that the main grievance of the petitioner is that the termination of his services was in violation of the provisions of Section 25 FA and B of the Act. We think it proper to refer to the provisions of Section 25F of the Act in extenso:
"25-F. Conditions precedent to retrenchment of workmen-No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official gazette."
10. From a perusal of the provisions contained above, it is crystal clear that whether the conditions prescribed under Section 25F of the Act for retrenchment of a workman have been fulfilled or not, is a pure question of fact and in order to arrive at a conclusion/recording finding, some investigation/enquiry has to be embarked upon, which in our opinion would be beyond the purview of Article 226 of the Constitution of India.
11. Now before we proceed to decide the question regarding the remedy available to a petitioner for violation of the provisions contained in Chapter V-A of the Act, we should also have to examine the scheme of the Act in order to find as to whether adequate and efficacious remedies have been provided or not. When we look to the Act, we find that complete machinery and procedure have been provided in chapter X of the Act, which are specifically incorporated in Sections 10 and 11A of the Act, which deserve to be incorporated in the judgment. Sections 10 and 11A of the Act read as under:
"10. Reference of disputes to Boards, Court or Tribunals-(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing.
(a) refer the dispute to a Board for promoting a settlement thereof; or
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevent to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause(c):
Provided further that where the dispute relates to a public service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced:
Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government.
(1-A) Where the Central Government is of the opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication.
(2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly, or separately, for a reference of the dispute to a Board, Court (Labour Court, Tribunal or National Tribunal), the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly.
(2-A) An order referring an Industrial Dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government:
Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months:
Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the Presiding Officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing extend such period by such further period as he may think fit:
Provided also that in computing any period specified in this sub-section, the period if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of a Civil Court shall be excluded:
Provided also that no proceedings before a labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed."
"11-A. Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workman.
Where an industrial dispute relating to the --discharge or dismissal of a workman has been -- referred to a labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, as it thinks fit, or give such other relief to the workmen including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:
Provided that in any proceedings under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter."
12. We have heard Shri Marudhar Mridual, Senior Advocate with Mr. Hemant S. and Vinod Purohit for the petitioner and Mr. R. N. Munshi and Mr.Dinesh Maheshwari for the respondents.
13. As soon as Mr. Mridul started his submissions to a pointed query made by us, he very candidly and in our opinion rightly made a statement at the bar that the answer to the question referred by the learned Single Judge for opinion by a Larger Bench can never be in affirmative as it would mean that writ should be directly entertained as a matter of course. However, he submitted that he would make his efforts to canvass before us that the remedies provided under the Act for violation of the provisions of Chapter V-A of the Act/violation of the principles of natural justice are not adequate, alternative and efficacious. Large number of cases (numbering more than 100) have been cited at the bar, which in our opinion would not be relevant and would also unnecessarily over burden the judgment and thus for the sake of brevity, we would like to deal with only those cases of this court mentioned by the learned Single Judge, which according to him require reconsideration by a Larger Bench.
14. From a perusal of the referring order, we have no hesitation in saying that the learned single Judge was very much in doubt about the ratio laid down by one Full Bench Judgment of this Court in Smt. Indu 's case (supra) and a Division Bench Judgment of this court in Rajasthan Pull Nigam's case (supra). First we would like to refer to the Full Bench decisions in Smt. Indu's Case. From the facts stated therein, it appears that one of us (brother Chopra, J.) while deciding a case, in view of some of the judgments rendered by the Single Bench and Division Bench, entertained some doubts regarding maintainability of writ petitions under Article 226 of the Constitution of India without pursuing remedy under the Act and as such referred the following questions to the Larger Bench:
"Whether disputes arising out of the Chapter V-A, V-B and V-C of the Industrial Disputes Act which almost cover all the disputes arising out of Section 25A to 25U of the Industrial Disputes (Central) Rules can be directly entertained by this Court Under Article 226 of the Constitution and if so, under what conditions, or whether such disputes being industrial disputes Under Section 10 r/w Section 11A of the Industrial Disputes Act, 1947 should be first heard and decided by the Industrial/Labour Tribunals and thereafter if relief is not granted to the party by the appropriate form then only, it should be allowed to come Under Article 226 of the Constitution of India before this Court Alternatively :- To put it differently, whether the reference of a dispute Under Section 10 r/w Section 11 of the I.D. Act as regards the disputes mentioned in chapter V-A, V-B and V-C of the I.D.Act read with Rule 77 and 78 of the Industrial Disputes (Central) Rules, offer an alternate, adequate and efficacious remedy which must normally be availed by the petitioners before they come to this court directly u/Article 226 of the Constitution."
And in the case of Sunil Kumar Sharma v. Pali Central Cooperative Bank Ltd. (S.B.Civil Writ Petition No. 4408/1989), the following questions were also referred to the Larger Bench:
"(1) Whether a reference by the appropriate Govt. to the appropriate Tribunal for violation of the provisions of Chapter V-A, V-B and V-C of the Industrial Disputes Act read with Rules 77 and 78 of the Industrial Disputes (Central) Rules can be considered to be an alternative-efficacious remedy and, therefore, a writ petition directly filed before this Court under Article 226 of the Constitution without getting that matter referred to and decided by the appropriate Tribunal should not normally be entertained.
(2) Whether as per Section 25-8(2) of the Act, an employee/workman has a right to choose his own date of termination with reference to which the cancellation is to be made, without reference to the actual date of termination? (or to put it differently), whether the date with reference to which calculation is to be made is to be held as the actual date of termination and not any other date prior to that date on which he might have completed 240 days of un-interrupted service within the period of 12 calender months as per Section 25B of the Industrial Disputes Act counting those months backward from that alleged date of termination?
(3) If question No. 2 is answered in favour of the petitioner that he has a right to choose any date on which he has completed 240 days of service as the date of his termination from service then whether the interrupted service rendered by him thereafter has to be treated as uninterrupted service till the date of actual termination. Whether such a deeming fiction can be read into Section 25-8(1) and (2) of the Industrial Disputes Act keeping in view the aims and objectives of the Industrial Disputes Act with special reference to the provisions of Sections 2(oo), (bb), 2(j), 2(s) and 25F of the Act.
(4) Whether the provision 'cessation of work which is not due to any fault on the part of the workman' as provided in Section 25(1) of the Act can be interpreted to mean interruption caused by employer by not offering work to the employee or it only covers cases where the entire work of an industrial establishments or its particular wing is brought to a halt on account of certain circumstances."
And this reference resulted in the constitution of the Full Bench, whose judgment is reported in 1991 (1) R.L.R. 68.
15. Learned Single Judge while making reference has referred to certain observations contained in various paragraphs of the Full Bench judgment in Smt.Indu's case (supra), which according to him are legally not correct. Not only this, some of the observations made by the learned Single Judge in Smt. Indu 's case are also factually incorrect and while placing reliance on certain celebrated judgments of the Apex Court, the Full Bench omitted to consider the dictum laid down by the Apex Court in those cases in detail and referred some of the observations, which were directly not relevant to the issue or the question which was to be answered in Smt, Indus's case (supra). In the concluding paragraph of the Full Bench judgment, questions No. 2 to 4 were not answered, which according to them depended on the question of facts and left it to be decided by the proper forum. However, so far as question No. 1 namely, "whether a reference by the appropriate Government to the appropriate Tribunal for violation of the provisions of Chapter V-A, V-B and V-C of the Industrial Disputes Act read with rules 77 and 78 of the Industrial Disputes (Central) Rules, the writ petitions can be considered to be an alternative, efficacious remedy and, therefore, a writ petition directly filed before this court without getting the matter referred to and decided by the appropriate Tribunal, should not normally be entertained", was answered as under:-
"Sections - 10 and 11A of the Industrial Disputes Act, 1947 do not bar entertainment of writ petitions under Article 226 of the Constitution of India where it does not involve any disputed/complicated questions of fact. However, the power/discretion should be exercised with great care and caution."
16. It is to be noticed that the ratio laid down by the Full Bench in Smt. Indus' case (supra) was subsequently enlarged by the Division Bench of this court in Rajasthan Pul Nigam 's case (supra) to the extent that where a writ petition under Article 226 of the constitution of India is filed for violation of the provisions contained in Chapter V-A of the Industrial Disputes Act, the Court has been left with no discretion/option and the entertainment of such writ petitions without exhausting remedies provided under the Act is must.
17. Without being misunderstood and without showing any disrespect to the aforesaid two decisions of Smt.' Indus's case (supra) and Rajasthan Pul Nigam's case (supra), large number of writ petitions have been filed without taking recourse to adequate, efficacious remedies contained in the Act for violation of the provisions of Chapter V-A of the Act and these two judgments have, in fact, opened flood gate for filing large number of writ petitions arising out of industrial disputes directly in the High Court without availing alternative remedy.
18. There is another Full Bench judgment of this Court in Bhanwar Lal etc. v. R.S.R.T.C. (1985-I-LLJ-111), in which it was held that the normal remedy in case of violation of Chapter V-A of the Act is under the Industrial Disputes Act and a writ though maintainable is to be entertained only in exceptional cases. It appears to us that the position which emerged before the learned Single Judge at the time of admission of the writ petition was that according to the Full Bench decision in Bhanwar Lal's case (supra), normal remedy is under the Industrial Disputes Act and a writ, though maintainable is to be entertained only in exceptional cases. On the other hand, there is another Full Bench decision in Smt. Indu's case, according to which, alternative remedy under the I.D. Act is no bar, but the powers under Article 226 of the Constitution of India should be exercised with due care and caution. According to the Division Bench Judgment in Rajasthan Pul Nigam's case, it is in public interest that the court must invoke its extra ordinary jurisdiction and entertain writ petitions where violation of Section 25F and 25G of 1947 Act is apparent from the record of the case and no useful purpose would be served in asking the parties to avail alternative remedy. It was also observed that even in cases where the employer raises a plea of question of fact, the Court must always remain on its guard in deciding this issue and unless there is a real disputed question of fact, specious plea of disputed questions of fact must not be used as a subterfuge to non suit a bonafide and genuine claim involving breach of the provisions contained in Section 25F and 25G of 1947 Act.
19. Mr.Mridul, who appeared before the learned Single Judge in S.B. Writ petition, asserted with full force that the Full Bench in Smt. Indu's case (supra) should be read to mean that the normal remedy is a writ petition and only in exceptional cases the litigant be required to go to the Industrial Tribunal. He also contended that the High Court should interfere in writ jurisdiction because every case complaining of violation of provisions of Chapter V-A of the Industrial Disputes Act, is a case of violation of fundamental right.
20. From a reading of the referring order of the learned Single Judge, we are quite conscious and clear in our mind that the learned single Judge did not subscribe to the view and the law laid down by the Full Bench in Smt. Indu's case (supra) as well as the Division Bench in Rajas-than Pul Nigam 's case (supra) and also could not subscribe the view canvassed by Mr.Mridul in view of atleast four judgments rendered by the five Judges Bench of the Apex Court and in our opinion, it was open for him to have taken a different view, but however in order to maintain judicial decorum and legal propriety, referred the question in hand for consideration by the Larger Bench.
21. During the course of arguments, learned counsel for the parties cited number of cases of this court as well as of other High Courts apart from the judgments of the Apex Court, but we may say so emphatically at this very place that not a single judgment rendered by the Apex Court has been cited by the counsel for the petitioner which may support the ratio laid down by the Full Bench in Smt. Indu's case (supra) and the Division Bench in Rajasthan Pul Nigam's (supra) case. Thus in our opinion the basic question with which we are seized is, as to whether the Full Bench of this Court in Smt. Indu's case and the Division Bench in Rajasthan Pul Nigam's case lays down the correct law and, if not, what is the answer to the question posed by the learned Single Judge.
22. Learned Single Judge in his referring order has referred to four judgments of the Apex Court delivered by five Judges, Bench and as such we think it proper to peruse those cases before arriving at our conclusion. The first case in the series is K.S. Rashid & Son v. Income-Tax Investigation Commission and Ors. AIR 1954 S.C. 207, which went to the Apex Court against the judgment passed by the Punjab High Court, arising out of the proceedings under the Taxation of Income (Investigation Commission) Act (30 of 1947). The aforesaid Act which was special in nature provided sufficient remedies for any breach of or violation of the provisions of the Act and the writ petition filed by the petitioner in the aforesaid case was dismissed on the preliminary objection raised by the respondents. One of the preliminary objections raised was that since the petitioner had remedies under the Act, the remedy under Article 226 or 227 of the Constitution was not available. In appeal dismissal of the writ petition by the High Court was upheld by the Apex Court and we should specifically like to refer to the observations of the Apex Court in the aforesaid case contained in para 4 of the judgment, which are as under:
"For the purpose of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.
23. The next case is Union of India v. T.R. Verma (1958-II-LLJ-259). In the aforesaid case, the service of the petitioner was terminated and the writ petition filed by him was allowed by the Punjab High Court. In appeal filed by the Union of India, the judgment of the High Court was set aside on the ground of availability of alternative remedy and in this connection, we would like to refer to the following observation made by the Apex Court:-(P.262) It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 S.C.163 (A) "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor."
24. The next case is State of U.P. v. Mohammed Nooh AIR 1958 S.C.86 in the aforesaid case, the Apex Court has observed that "the fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decision of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any.
25. The last case is Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors. (1964-II-LLJ-I05) which related to industrial dispute and as such we would like to briefly refer to the facts giving rise to the aforesaid case. It appears that validity of Section 1 (3) of the Employees' State Insurance Act, 1948 was challenged before the Patna High Court by the workmen of Eagle Rolling Mills Ltd., Kumardhubi Engineering Works Ltd. and Kumardhubi Fire Clay and Silica Works Ltd. on the ground that the aforesaid section was violative of Article 14 of the Constitution and suffers from the vice of excessive delegation. It appears that certain notices were issued to the workmen curtailing their benefits. The validity of the said Act was upheld, but the Apex Court held that the proper course for the workmen was to challenge the notices and the circulars under Section 10 of the Industrial Disputes Act or under Sections 74 and 75 of the Act. In this connection we would like to refer to the following observations of the Apex Court: pp.108-109 "Before we part with these appeals, there is one more point to which reference must be made. We have already mentioned that after the notification was issued under Section 1(3) by respondent No. 3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent No. 1 issued notices giving effect to the State Government's notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that the respondent No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the Scheme which had been brought into foce under the Act. The High Court has held that the question as to whether the notices and circulars issued by the respondent No. 1 were invalid, could not be considered under Article 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under Section 10 of the Industrial Disputes Act. It is true that the powers conferred on the High Courts under Article 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievance in respect of the said recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act."
26. There are series of cases of the Apex Court in which the view expressed by the Apex Court in the aforesaid cases have constantly been followed and there has been no departure till today, but however we would not like to refer to all those cases and would like only to express our opinion that the dictum laid down in the aforesaid judgments of Five Judge's Benches of the Apex Court have not been noticed at all by the Full Bench in Smt. Indu 's case (supra) or the Division Bench in Rajashan Pul Nigam's case (supra). As we have already stated earlier that Mr. Mridul, Senior counsel appearing for the petitioner has candidly conceded that the answer to the question referred by the learned Single Judge can never be in affirmative, has made submissions in order to justify the ratio laid down by the Full Bench in Smt. Indu's case and the Division Bench in Rajasthan Pul Nigam's case.
27. The first submission made before us by Mr.Mridul is that the remedy provided for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 is not an alternative remedy. In order to strengthen the aforesaid submission, he heavily placed reliance on Section 10 of the Act as the same is not mandatory and the reference to the Industrial Tribunal is dependent on the sweet will of the Government. He further contended that since no time limit has been fixed under Section 10 of Act for referring the dispute, the remedy provided is not effective and the counsel has even gone to the extent of saying that the remedy appears to be illusory.
28. Mr. R.N.Munshi, appearing for the respondents has refuted the aforesaid argument and submitted that the argument advanced by Mr.Mridul has no legs to stand and should be thrown overboard in view of the decision of the Apex Court in Premier Automobiles Ltd. v. Kamlakar Santa Ram and Ors. (1975-II-LLJ-445).
29. We have carefully perused the aforesaid judgment of the Apex Court and in our opinion the argument advanced on behalf of the petitioner by Mr. Mridul is totally unsustainable as the said argument has been rejected by the Apex Court in the case of Premier Automobiles (supra). In this connection, we would like to refer to the following observations of the Apex Court in Premier Automobiles' case. p. 454:
"Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expedience is not a relevant consideration in this regard."
Apart from the said fact, it is also pertinent to mention that there may be occasions when the appropriate Government may not refer the dispute expeditiously and if considerable delay is made, it is always open to the party to approach this Court in writ jurisdiction and this Court may issue writ in the nature of mandamus directing the appropriate Government to perform the statutory obligation conferred on it.
30. Learned counsel appearing for the respondents have also invited our attention to catena of decisions of the Apex Court and various High Courts, but in our opinion the ratio laid down in Premier Automobiles' case (supra) is a compltete answer to the argument and we do not consider it proper to refer to other decisions.
31. The next submission which Mr.Mridul canvassed before us is that the remedy under the Act is not adequate and efficacious as a workman is prohibited in availing the services of the lawyer under Section 36 of the Act unless employer agrees and the Court permits.
32. We have considered the said argument but we cannot subscribe to the aforesaid proposition as there are many other statutes where the litigants are deprived of availing services of the lawyers. In this connection the most glaring example is of Family Courts where the disputes arising under the Hindu Marriage Act were decided and the parties are deprived of engaging lawyers in matrimonial cases and sometimes illiterate, poor women are the worst sufferers.
33. Another submission, which has been made by the counsel for the petitioner before us is that in many cases it takes decades to decide the disputes by the Labour Courts/Industrial Tribunals. In our opinion, this argument also appears to be wholly fallacious in view of the fact that more than decades have passed but the writ petitions filed under Article 226 of the Constitution of India before this Court have not been decided so far. We also cannot lose sight to the fact that the writ petitions filed in this Court in 1982 are now being listed for final hearing i.e. after 13 years.
34. Further argument advanced before us by the counsel for the petitioner is that the entertainment of writ petition under Article 226 of the Constitution of India even in cases where there are statutory alternative remedies available to the petitioners, is no bar. There cannot be two opinions in view of the law laid down by the Apex Court in large number of cases that alternative remedy is no bar for entertainment of writ petitions under Article 226 of the Constitution of India and there may be cases in which this court inspite of the fact that there is an alternative remedy, may interfere depending on the facts of the case.
35. The last submission made by the counsel for the petitioner is that this Court may lay down the circumstances/grounds exhaustively in which this Cout inspite of availability of alternative remedy may entertain petitions under Article 226 of the Constitution of India.
36. In our opinion, the aforesaid submission cannot be accepted as it is difficult to lay down conditions/grounds exhaustively as the facts differ from case to case and as such conditions/grounds which may be held as sufficient for invoking the extra ordinary jurisdiction of this Court cannot be confined in a watertight compartment.
37. Mr. R.N. Munshi and Mr. Dinesh Maheswari appearing for the respondents have invited our attention to a large number of cases to controvert the contention canvassed by the counsel for the petitioner, but we do not consider it proper to refer those cases, in order to avoid multiplicity.
38. The last submission made on behalf of the petitioner by Mr. Mridul, senior counsel is that where the orders are wholly without jurisidction and are passed in flagrant violation of the principles of natural justice, the petitioner should not be relegated to avail the remedies provided under the Act.
39. The Industrial Disputes Act 1947, which is a special statute has been enacted by the Parliament for settling the industrial disputes through conciliation and if not possible, then by the Tribunals constituted under the Act, and, also to reduce the field of conflict between the employer and the employees in order to increase the industrial growth of the country. The Act is a self contained code and provides complete procedure, even machinery has been provided for recovering the money due from the employer to the employee under Section 33C of the Act. In our opinion even where the question is raised as to whether the principles of natural justice have been complied with before passing the impugned order or not, is also a question of fact which requires investigation. Similarly, the question as to whether the order is without jurisdiction, is also essentially a question of fact and requires investigation before reaching a conclusion and that investigation or enquiry in our opinion is normally beyond the scope of Article 226 of the Constitution of India and these questions can be suitably agitated and adjudicated upon by the authorities constituted under the Act, on the basis of evidence adduced by the parties. We are therefore, of the opinion that even in such cases the normal rule for an employee should be to avail remedies provided under the Act and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases.
40. After giving our thoughtful consideration to the facts and submission made at the Bar and in view of catena of cases decided by the Apex Court on the question referred to us, we are of the opinion that the answer to the question referred by the learned Single Judge is in negative and we are further of the view that the ratio laid down by the Full Bench of this Court in Smt. Indu 's case (supra) and the Division Bench in Rajasthan Pul Nigam 's case (supra) does not lay down correct law and we specifically overrule the aforesaid decisions. We are of the opinion that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and power under Article 226 of the Constitution of India in such cases should be sparingly exercised.
Let the answer to the question referred by the learned Single Judge be placed before him for deciding the case in view of the judgment rendered by us.