Madras High Court
Unknown vs Union Of India on 18 December, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.(MD).No.6876 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 18.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.(MD).No.6876 of 2011
1.K.Venkatesan
2.N.Viswanathan
3.S.Nagarajan
4.K.Mohan Doss
5.G.Balakrishnan
6.V.S.Muruganandham
7.G.Kumaresan
8.M.Anthony Samy
9.S.Ameer
10.M.Muthumani
11.V.R.Pragadeeswaran
12.M.K.Surendran
13.S.Hariharan
14.S.Alagarsamy
15.J.Thomas Ignacy Peeriz
16.L.S.J.Shanthi
17.V.Chellapandian
18.D.Manohar Samuel
19.V.Murugan
20.M.D.Deepak
21.T.Shanthi Devi
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W.P.(MD).No.6876 of 2011
22.Jeevanadham
23.M.Maanvizhi
24.K.S.Rekha
25.K.Ganesan
26.S.Kanthimathi
27.S.Devaki
28.K.Ramaraj
29.M.A.Eswaran
30.R.Baskaran
31.P.Rajendran
32.M.Kaleeswaran
33.A.R.Baskaran
34.R.Bhama
35.T.N.Kannan
36.P.Gnanasekaran
37.S.Balakrishnan
38.T.Varadharaj
39.N.Ramalingam
40.A.Krishnammal
41.A.Chermakani
42.S.Vasanthi
43.D.Niraimathi
44.P.Manimegalai
45.S.Thenmozhi
46.R.Sugumaran
47.R.Vijayalakshmi
48.G.Hema
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W.P.(MD).No.6876 of 2011
49.P.Sankaranarayanan
50.A.Seeni
51.K.Arivalagan ... Petitioners
-Vs-
1.Union of India
rep., by its Secretary,
Banking Division,
Ministry of Finance,
New Delhi 110 001.
2.Indian Banks Association,
rep., by its Chairman,
World Trade Centre, 6th Floor,
Centre-1,
Cuffe Parade, Mumbai 400 005.
3.Canara Bank,
rep., by its Chairman and Managing Director,
Head Office, No.112, J.C.Road,
Bangalore 560 002.
4.Central Bank of India,
rep., by its Chairman and Managing Director,
Central Office, 16th Floor,
Chandermukhi, Nariman Point,
Mumbai 400 021.
5.The Karur Vysya Bank Ltd.,
rep., by its Chairman and Managing Director,
Central Office, Erode Road,
Karur 639 001.
6.Union Bank of India
Rep., by its Chairman and Managing Director,
Union Bank Bhavan, 3rd Floor,
239 Vidhan Sabha Marg Nariman Point
Mumbai 400 021
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W.P.(MD).No.6876 of 2011
7.United Commercial Bank,
rep., by its Chairman and Managing Director,
10, BTM Sarani, Calcutta 700 001.
8.Indian Bank,
rep., by its Chairman and Managing Director,
66, Rajaji Salai, Chennai 600 001.
9.All India Bank Employees Association,
(AIBEA), rep., by its General Secretary,
No.164, Linghi Chetry Street,
Chennai 600 001.
10.National Confederation of Bank Employees (NCBE),
rep., by its General Secretary,
C/o.State Bank of India-LHO
3rd Floor, Bhadra, Lai Dharwaja
Ahmedabad 380 001.
11.Bank Employees Federation of India (BEFI),
rep., by its General Secretary,
Naresh Paul Centre,
No.53, Radha Bazar Lane, (first floor),
Kolkota 700 001.
12.Indian National Bank Employees Federation (INBEF),
rep., by its General Secretary,
Bajaj Bhawan, I Floor, Nariman Point,
Mumbai 400 021.
13.National Organization of Bank Workers (NOBW),
Rep., by its General Secretary,
Ram Naresh Bhawan, Tilak Gali,
Chuna Mandi, Pahar Ganj,
New Delhi 110 055.
14.All India Bank Officers' Confederation
Rep., by its General Secretary,
C/o State Bank Building,
St.Marks Road, Bengaluru 560 001.
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W.P.(MD).No.6876 of 2011
15.All India Bank Officers' Association
rep., by its General Secretary,
A.K.Naik Bhawan,
14, Second Line Beach,
Chennai 600 001.
16.Indian National Bank Officers' Congress,
rep., by its General Secretary,
C/o Bank of Baroda,
No.3 Walchand Hirachand Marg,
Ballard Estate, Mumbai 400 001.
17.National Organisation of Bank Officers,
rep., by its General Secretary,
No.3, Natshatra Apartments,
Plot No.22, Sri Ram Society,
Warje, Pune-411 058. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Declaration, declaring Clause 32 of 9th Bipartite
Wage Settlement dated 27-04-2010 read with clause (1) and (2) of
Pension Settlement dated 27-04-2010 insofar as the said clauses require
Contributory Provident Fund Optees who are in service to become
Pension Optees upon contributing 2.8 times of the revised payable for
the month of November 2007 to the Pension fund and retired employees
to refund in addition to their contribution and the Bank s contribution
with interest thereon an additional amount which amounts to 56% of the
said amount of bank s contribution to Provident Fund and interest
thereon recovered from the employee on retirement or death as arbitrary
and violative of Article 14, 16 and 21 of the Constitution and
consequently direct the respondents 3 to 8 to extend the pension option
to the petitioners without insisting on any contribution to the Pension
Fund and to refund the amounts paid.
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W.P.(MD).No.6876 of 2011
For Petitioners : Mr.K.M.Ramesh
For Respondents : Mr.C.Nandagopal (for R1)
No appearance (for R2 & R3)
Mr.T.M.hariharan (For R4)
Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co (for R5)
No appearance (for R6 to R17)
ORDER
The relief sought for in the present writ petition is to declare Clause 32 of 9th Bipartite Wage Settlement, dated 27-04-2010 read with clause (1) and (2) of Pension Settlement, dated 27-04-2010 insofar as the said clauses require Contributory Provident Fund Optees, who are in service to become Pension Optees upon contributing 2.8 times of the revised payable for the month of November 2007 to the Pension fund and retired employees to refund in addition to their contribution and the Bank s contribution with interest thereon an additional amount which amounts to 56% of the said amount of bank s contribution to Provident Fund and interest thereon recovered from the employee on retirement or death as arbitrary and violative of Article 14, 16 and 21 of the Constitution of India and consequently direct the respondents 3 to 8 to extend the pension option to the petitioners without insisting on any contribution to the Pension Fund and to refund the amounts paid.
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2.All the petitioners were working as Clerk/Shroff, Officers, Sub-staff in various Nationalized and Scheduled Banks. The crux of the arguments as advanced by the learned counsel for the petitioner is that, the pension is a right of workman and as per the scheme introduced during the year 1995, the petitioners are entitled for the pension. The writ petitioners have raised various disputed issues to establish their right for pension and other benefits, as such prayed in the present writ petition. Those disputed issues need not be detailed in the present writ petition, in view of the fact that the learned counsel for the respondents have raised preliminary objections with reference to the entertainability of the writ petition, mainly on the ground that, these disputed labour issues cannot be adjudicated in a writ proceedings and the petitioners, if at all aggrieved, has to approach the Labour forum concerned for the purpose of redressal of their grievances.
3.Though the learned counsel for the petitioners made an attempt that the issues involved the right of the workman with reference to the Pension Scheme and therefore, the writ petition is entertainable.
However, the issues regarding the entertainability are decided by the Hon’ble First Bench of the Madras High Court in W.A.No.504 of 2020, http://www.judis.nic.in 7/26 W.P.(MD).No.6876 of 2011 dated 13.07.2020 in the case of Royal Enfield Employees Union Vs., The Government of Tamil Nadu rep., by its Secretary and others. The Hon’ble Chief Justice speaking for the bench rule that such disputed issues are to be adjudicated before the competent Labour Court with reference to the documents and evidences and the writ Court cannot entertain such an adjudication and accordingly, dismissed the appeal filed by the employees Union. The relevant paragraphs of the said judgment are extracted hereunder:
“6. In order to examine the issue as to whether such a dispute can also be raised as an industrial dispute or not, the provisions of Section 2(k) of the 1947 Act are relevant, which is extracted herein under:
“Section 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context.- (a) to (j) **** (k) 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.”
7. The said provision categorically holds that an industrial dispute means any dispute which may be even connected with the terms of employment.
Settlement is nothing else, but it relates to the terms of the employment of the workmen and such other benefits that may have been arrived at. The definition covers almost every aspect of terms of employment and, therefore, the contention of the learned counsel for the appellant that an industrial dispute cannot be raised is not correct. In the present case, a challenge has been http://www.judis.nic.in 8/26 W.P.(MD).No.6876 of 2011 raised to a settlement dated 4.6.2019 which is said to have been staged by the management through a splinter minor group as against the claim of the appellant which is the majority union. The settlement arose out of a dispute relating to altering the existing service conditions and increase in wages.
8. In order to substantiate the aforesaid conclusion drawn by us, reference be had to the decision in the case of Rajasthan State Road Transport Corporation and another v. Krishna Kant and others, (1995) 5 SCC 75, which is a Three Judges decision, where after referring to Section 2(k) of the 1947 Act in paragraph (8) of the report, the Apex Court in paragraph (28) held as under:
“28. Now, coming back to Principle No. 2 and its qualification in para 24, we must say that para 24 must be read harmoniously with the said principle and not in derogation of it — not so as to nullify it altogether. Indeed, Principle No. 2 is a reiteration of the principle affirmed in several decisions on the subject including Dhulabhai v.
State of M.P. [(1968) 3 SCR 662 : AIR 1969 SC 78] . Principle No. 2 is clear whereas para 24 is more in the nature of a statement of fact. It says that most of the industrial disputes will be disputes involving the rights and obligations created by the Act. It, therefore, says that there will hardly be any industrial dispute which will fall under Principle No. 2 and that almost all of them will fall under Principle No. 3. This statement cannot be understood as saying that no industrial dispute can ever be entertained by or adjudicated upon by the civil courts. Such an understanding would not only make the statement of law in Principle No. 2 wholly meaningless but would also run counter to the well established principles on the subject. It must accordingly be held that the effect of Principle No. 2 is in no manner whittled down by para 24. At the same time, we must emphasise the policy of law underlying the Industrial Disputes Act and the host of enactments concerning the workmen http://www.judis.nic.in 9/26 W.P.(MD).No.6876 of 2011 made by Parliament and State Legislatures. The whole idea has been to provide a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedures followed by civil courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and re-make the contracts, settlements, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them.” The ultimate conclusion summarizing the principles were enumerated in paragraph (35) of the judgment, which is extracted herein under:
http://www.judis.nic.in 10/26 W.P.(MD).No.6876 of 2011 “35. We may now summarise the principles flowing from the above discussion:
(1) Where the dispute arises from general law of contract, i.e., where reliefs are claimed on the basis of the general law of contract, a suit filed in civil court cannot be said to be not maintainable, even though such a dispute may also constitute an “industrial dispute” within the meaning of Section 2(k) or Section 2-A of the Industrial Disputes Act, 1947. (2) Where, however, the dispute involves recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes Act, the only remedy is to approach the forums created by the said Act. (3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 — which can be called “sister enactments” to Industrial Disputes Act — and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2(k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act.
Otherwise, recourse to civil court is open. (4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and http://www.judis.nic.in 11/26 W.P.(MD).No.6876 of 2011 not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.
(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislatures to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly — i.e., without the requirement of a reference by the Government — in case of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.
(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to “statutory provisions”. Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principles indicated herein. (7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute.” http://www.judis.nic.in 12/26 W.P.(MD).No.6876 of 2011
9. The above quoted decision has been followed subsequently by the Apex Court in Rajasthan SRTC and others v. Khadarmal, (2006) 1 SCC 59, which however considered the larger issue of exclusion of jurisdiction of the Civil Court.
10. The decision in Krishna Kant case (supra) was quoted with approval in A.P. Foods v. S.Samuel and others, (2006) 5 SCC 469.
11. The Apex Court further deprecated the interference by the High Court under Article 226 of the Constitution of India in matters of exhaustive and appropriate statutory remedies in reference to the Uttar Pradesh Industrial Disputes Act, 1947 in the case of U.P. State Bridge Corporation Ltd. and others v. U.P. Rajya Setu Nigam S.Karamchari Sangh, (2004) 4 SCC 268. Emphasizing the need of avoiding entertaining such disputes under Article 226 of the Constitution of India, the Apex Court in paragraphs (12) and (17) held as under:
“12. Although these observations were made in the context of the jurisdiction of the civil court to entertain the proceedings relating to an industrial dispute and may not be read as a limitation on the Court's powers under Article 226, nevertheless it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of the process as provided in that statute and in no other manner.
....
17. The only reason given by the High Court to finally dispose of the issues in its writ jurisdiction which appears to be sustainable, is the factor of delay, on the part of the High Court in disposing of the dispute. Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action http://www.judis.nic.in 13/26 W.P.(MD).No.6876 of 2011 of the Court since the objection is one in the nature of a demurrer. Nevertheless even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen in this case remain unresolved. They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correctly refused to entertain the writ petition for such relief.”
12. The opinion expressed by the learned Single Judge, therefore, in our opinion, also does not suffer from any legal infirmity, in as much as whether the settlement is binding; whether it is fair or proper; and as to whether the settlement can operate, are all questions of fact relating to the terms of employment, for which an industrial dispute can be raised before the appropriate forum. We, therefore, do not find any error in the conclusion drawn by the learned Single Judge and the appeal is accordingly dismissed. “
4.The Hon’ble Supreme Court in the case of Herbertsons Limited Vs., The Workmen of Herbertsons Limited and others reported in AIR 1977 SC 322 held that “It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad.
Unless it can be demonstrated that the objectionable portion in such that is completely outweighs all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be http://www.judis.nic.in 14/26 W.P.(MD).No.6876 of 2011 accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court, the third respondent admittedly representing that the large majority of the workman has stood by this settlement and that is the strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be obvious of the fact that all workmen of the company have accepted the settlement.”
5.In the present writ petition, only 51 workman are the petitioners. The settlement covers large number of workman working in various Nationalised Banks. The relief sought for in the present writ petition is to declare Clause 32 of 9th Bipartite Wage Settlement, dated 27-04-2010 r/w clause (1) and (2) of Pension Settlement, dated 27-04-2010 is null and avoid. This being the very relief sought for, the principles enumerated in para 27 of the judgment of the Supreme Court, cited supra, applies. The portion of the settlement cannot be challenged in a writ proceedings. Even in case, some controversy arose regarding the overlaping or unacceptability of the terms and conditions, the workman has to adjudicate the issues before the labour forum for the purpose of redressal. Undoubtedly, the High Court cannot enter into the http://www.judis.nic.in 15/26 W.P.(MD).No.6876 of 2011 adjucation of such disputed facts and circumstances, which requires an elaborate trial with reference to the documents and evidences. Therefore, this Court has to adopt the principles laid down by the Hon'ble Apex Court as well as Hon’ble Divison Bench in its judgment stated above in W.A.No.504 of 2020.
6.Though the petitioner have raised certain issues on merits, undoubtedly, all such issues are to be adjudicated with reference to the various factors including the negotiations, terms and conditions of the settlement in entirety and the right, rules and regulations etc., Such an elaborate adjudication shall be done only before the Labour Court and not in a writ proceedings under Article 226 of the Constitution of India.
This Court also elaborately adjudicated the entertainability of the writ petition in respect of labour issues relying on the principles settled by the Full Bench of the Madras High Court in judgment, dated 25.07.2019 delivered in W.P.(MD)Nos.10416 of 2009 and 2926 of 2009 and the relevant paragraphs are extracted hereunder:-
“...55.Thus, this Court is bound to consider the legal principles settled by the Full Bench of this Court in the case of P.Pitchumani Vs. The Management of Sri Chakra Tyres Ltd,. As far as the judgment of the Full http://www.judis.nic.in Bench are concerned, the principles are enumerated and 16/26 W.P.(MD).No.6876 of 2011 those principles are to be applied in respect of entertaining the writ petition under Article 226 of the Constitution of India.
56.When an aggrieved person is a workman within the meaning of the Industrial Disputes Act, 1947 and his service conditions and service benefits are governed under 12(3) settlement, then all such workmen should first approach the Labour Court for adjudication of disputes and issues effectively and thereafter, approach the higher Courts, if their grievances are not redressed.
Contrarily, a recent trend is being developed that such industrial disputes are raised before the High Court under Article 226 of the Constitution of India. An argument is putforth by stating that the Transport Corporations or certain other Companies are the Government owned or the Government has made investments on such Companies or Corporations. Such an argument can never be considered as a good proposition. Once an employee comes under the definition of “the workman” and his service conditions are governed under the Industrial Disputes Act, 1947, more specifically under Section 12(3) of the Act, then all such adjudications are to be effectively done at the first instance before the Labour Tribunal or the Court concerned. In violation of these line of procedures, large number of writ petitions are filed seeking adjudication of main issues and disputes under Article 226 of the Constitution of India, which can never be allowed and if at all, any imminent circumstance arise, then by way of http://www.judis.nic.in 17/26 W.P.(MD).No.6876 of 2011 exception, a writ proceedings can be entertained and issues can be settled. Contrarily, entertaining a writ petition for the purpose of adjudication of disputes and issues can never be a routine affair by the High Courts. Exhausting the alternative remedy is the rule and entertaining a writ proceedings is an exception.
57.The contentions of the writ petitioners that the Judgment of the Honourable Full Bench of this Court cited supra was in a case where the employer is a Private Company. Such an argument undoubtedly has no relevance. The Full Bench has answered the question and decided the principles and held the importance of exhausting the alternative remedy by the workman before the Labour Court at the first instance. Thus, the very argument of the writ petitioners deserves no merit consideration. Once a settlement is arrived between the Management and the Workmen under Section 12(3) of the Industrial Disputes Act, 1947, it is binding on the parties to the agreement and accordingly, the disputes, issues and grievances are to be adjudicated and resolved only through the procedures contemplated and as well as before the Forums created and bypassing such procedures or mandatory provisions of the statutory can never be dispensed with nor be waived.
58.This being the legal principles to be followed, the Full Bench judgment in the case of P.Pitchumani cited supra, categorically enumerates that if the Industrial Dispute relates to enforcement of a right http://www.judis.nic.in 18/26 W.P.(MD).No.6876 of 2011 or an obligation created under the Act, then, the only remedy available is to adjudicate the same under the Act. It is made clear that the grievances of the writ petitioners are in relation to their service conditions which were recognised under the Settlements under Section 12(3) of the Industrial Disputes Act. Therefore, those rights and service conditions are to be enforced through appropriate adjudication under the provisions of the Industrial Disputes Act more specifically before the Labour Court. Even in the absence of issuing any such 9-A notice, it is to be construed as violation of the provisions of the Industrial Disputes Act. Then also, the “workmen” is entitled to approach the Industrial Labour Court for redressal of their grievances.
59.All such grievances even in the absence of any notice or in the absence of any order can be adjudicated before the competent Industrial Labour Court and it is not necessary that those cases are also to be entertained by the High Court under Article 226 of the Constitution of India.
60.In the present case, this Court is of the opinion that it became unnecessary on account of the counter filed by the respondents that the respondents have not taken any decision to alter or modify the service conditions of the workmen. Therefore, entertaining a writ petition for the year 2009-10, keeping it pending for about 9 years and considering the fact that the respondents have not taken any steps to alter certain conditions became meaningless. Under these http://www.judis.nic.in 19/26 W.P.(MD).No.6876 of 2011 circumstances, this Court is of the considered opinion that the workmen must approach the Labour Court at the first instance instead of approaching the High Court based on certain apprehensions.
61.The principles laid down by the Full Bench are enumerated in paragraphs 7 and 14, which are extracted hereunder:
“7.General contract of employment is governed by common law and any breach of the contract and dispute arising therefrom is to be adjudicated by common law Court. But, if the matter is governed by the I.D. Act or the Standing Orders relating thereto, by necessary implication, the common law remedy is barred and more so, if the adjudicatory forums, be it Labour Court or Industrial Tribunal, are constituted under I.D. Act. Earliest is the judgment of the Supreme Court in Premier Automobiles Limited Vs. Kamlakar Shantaram Wadke and others, 1975 (2) LLJ 445. In the said case, there was a dispute as to whether a civil suit was maintainable in a matter arising under the Industrial Disputes Act. The case related to the payment of the amounts under the Memorandum of Settlement and as to whether there was an infraction of Section 9-A of the Industrial Disputes Act, 1947. A suit in representative capacity was filed under Order 1, Rule 8 of C.P.C., and it was partly decreed, against which an appeal was filed questioning the jurisdiction of the Civil Court, but the appeal failed. Then the matter was taken in a Letters Patent Appeal, but there also the finding with regard to http://www.judis.nic.in 20/26 W.P.(MD).No.6876 of 2011 sustainability of the suit before the Civil Court was upheld, and later on the matter landed in Supreme Court. The legal contentions were comprehensively considered by referring to several important judgments and following are the legal principles stated in the said case:
(i) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act, the remedy lies only in the Civil Court.
(ii) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.
(iii) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(iv) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.
14.In view of what is stated supra, we hold that
(i) only such violations under I.D. Act, which involve public duties, are amenable to Writ Jurisdiction under Article 226 of Constitution of India;
(ii) dismissals, transfers and other matters concerning the service conditions of employees governed by I.D. Act, have to be adjudicated only by the forums http://www.judis.nic.in 21/26 W.P.(MD).No.6876 of 2011 created under the said statute and not otherwise;
(iii) it is needless to mention that the disputes relating to matters not governed by I.D. Act have to be resolved only by common law Courts;
(iv) the transfers effected in these cases do not involve any public duties and involve the disputed questions of fact and they should be resolved only before the forums under the I.D.Act.
(v) the appellants / petitioners – employees shall be entitled to seek for reference by filing application under Section 10 of the I.D. Act within two weeks from the date of receipt of a copy of this order;
(vi) if any industrial disputes are raised, then the concerned forums be it Labour Court or Industrial Tribunal, shall dispose of the same within four months from the date of receipt of the reference, after affording opportunity to either party;
(vii) without prejudice to the contentions of the appellants / petitioners – employees, on weeks time from the date of receipt of a copy of this order is given to the employees to joint at the transferred places and in respect to such of those dismissed employees, for non-joining at the transferred places, the delay is condoned if they join as stipulated above and in that event, dismissal orders passed against them disappear automatically; and
(viii) the respondents – managements shall sympathetically consider the payments of wages / salaries to the appellants / petitioners – employees so as to maintain the industrial peace and harmony. http://www.judis.nic.in 22/26 W.P.(MD).No.6876 of 2011 The Writ Appeals and Writ Petitions are disposed of accordingly. No costs. Consequently, the connected W.A.M.Ps. are closed.”
62.The above judgment of the Hon'ble Full Bench of this Court is also unambiguous that the Workmen should approach the Industrial Labour Court at the first instance and thereafter, if their grievances are not redressed, then they are at liberty to approach the High Court under Article 226 of the Constitution of India challenging the order / award passed by the Competent Industrial Labour Court. As far as the present writ petitions are concerned, the apprehensions of the writ petitioners were clarified by the respondents that no such change in service conditions are made and the apprehensions are baseless and presumptive. In view of the facts and circumstances this Court is of the opinion that entertaining a writ petition for issuing a writ of Mandamus should not be entertained where the workmen approaches the High Court directly under Article 226 without exhausting the remedy provided under the Industrial Disputes Act before the competent Industrial Labour Court. Thus, this Court is of the undoubted opinion that the writ petitions for Mandamus based on certain apprehensions filed by the Workmen aggrieved under the provisions of the Industrial Disputes Act, cannot be entertained.
63.The General principles is that no writ petition can be dismissed on the ground of maintainability. The power of judicial review under http://www.judis.nic.in 23/26 W.P.(MD).No.6876 of 2011 Article 226 of the Constitution of India is extraordinary. Thus, High Court would not dismiss a writ petition on the ground of maintainability. However, the High Court is rejecting a writ petition on the ground that the statute provides a remedy by approaching competent forums / Tribunals / Labour Courts specially created for such adjudications of the issues and to redress their grievances. Thus, the writ petitioners in all such circumstances are bound to approach the Industrial Labour Court in order to resolve the issues arising out of the violations of the provisions of the Industrial Disputes Act, violations of the service conditions or the violations of the terms and conditions of the settlement or otherwise. This being the conclusion, the present writ petitions are devoid of merits.
64.Accordingly, the writ petitions stand dismissed. No costs. Consequently, M.P.(MD)No.1 of 2010, for impleadment and other miscellaneous petitions are closed.”
7.Applying the principles settled in the above all judgements, whether in the serttlement under the Industrial Disputes Act or part of the settlement or any class in a settlement, if is to be questioned, the same shall be done before the competent Labour forum. Under these circumstnafces, the petitioner are at liberty to approach the competent labour forum for the purspoes of adjucation of their issues in the manner known to law.
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8.With these liberty, the Writ Pettion stands disposed of. No costs.
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