Calcutta High Court
Khushal Shamraoji Randive vs Garden Reach Ship Builders And ... on 12 September, 1996
Equivalent citations: (1997)1CALLT508(HC)
Author: Altamas Kabir
Bench: Altamas Kabir
JUDGMENT Altamas Kabir, J.
1. The writ petitioner, who had been employed as structural Fitter III at the main yard, ship building, shop No. 113, of the respondent company at Metiaburs, has challenged the charge-sheet dated 10th March, 1993, issued to him by the Manager(Hall)-I, the finding of the Enquiry Officer dated 14th March, 1995, and the final order of dismissal passed against him on 25th April, 1995, by the Director (personnel) of the company.
2. When the writ application was taken up for consideration at the very initial stage, a preliminary objection was taken by Mr. Dipak Ghosh, learned advocate, appearing for the respondents, that the same was not maintainable, inasmuch as, the petitioner was a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, as amended by the State of West Bengal, and that his remedy, therefore, lay not by way of a writ petition, but under the provisions of the said Act.
3. Mr. Ghosh also contended that since the petitioner's service conditions were governed by Standing orders certified under the Industrial Employment (Standing Order) Act, 1946, and since it had been held by the Hon'ble Supreme Court that such certified standing orders did not have statutory force, the remedy, if any. of the petitioner lay within the provisions of the Industrial Disputes Act, which was a complete code by itself, and not by way of a writ petition.
4. In support of his contention, Mr. Ghosh firstly relied on the decision of the Hon'ble Supreme Court in the case of Rajasthan State Road Transport Corporation and Anr. v. Krishkant, , wherein a three--Judge Bench of the Hon'ble Supreme Court, while considering the earlier decisions of the Supreme Court in similar matters, and in particular the same of Sukhdev Singh and Ors. v. Bhagatram Sardar Singh Raghuvanshi and Anr., , were of the view that certified Standing Orders could not be said to have statutory force and at best it could be said that they are statutorily imposed conditions of service.
5. Mr. Ghosh then referred to a Full Bench decision of the Allahabad High Court in the case of Chandrama Singh v. Managing Director, U.P. Co-operative Union and Ors., reported in 63 FLR at page 478, where it was, inter alia, held that when an alternate remedy is available to the petitioner, which is equally adequate and efficacious, the jurisdiction of the High Court under Article 226 of the Constitution should not be invoked. Their Lordships observed that the hurdle of alternate remedy cannot be allowed to be skipped over lightly simply on the basis of a statement in the petition that no equally adequate and efficacious remedy was available to the petitioner.
6. Mr. Ghosh also referred to several other decisions, including two decisions of our court, in order to emphasise his objection that the writ application was not maintainable on the two aforesaid counts. The first of the said two decisions was a Single Bench decision of this court in the case of Tapas Mondal and Ors. v. Eastern Coalfield Ltd. and Ors., reported in 1995 Lab IC at page 1433, where it was observed that the Industrial Disputes Act is a self contained code and the writ court could not be converted into an industrial court.
7. The other decision is also of a learned single judge of this court in the case of K.K. Singh Thakur v. National Textile Corporation Ltd. (civil Order No. 1428 (W) of 1996,) wherein, after considering the various decisions also cited by Mr. Ghosh in this case, the learned Judge was of the view that where the provisions of the Industrial Disputes Act, 1947, were available, a writ petition should not be entertained and the proper course for the party would be to take recourse to the provisions of the said Act.
8. Mr. Ghosh urged that in this case also, the writ petitioner should be directed to seek his remedy under the provisions of the said Act.
9. Appearing in support of the writ petition. Mr. Kalyan Bandopadhyay urged that the views expressed by the Hon'ble Supreme Court in the Rajasthan State Road Transport Corporation case (supra) were, in fact, different from the views uniformly expressed earlier regarding the status of certified standing orders. Mr. Bandopadhyay urged that it had earlier been held that such certified standing orders having been certified under the Industrial Employment (Standing Order) Act, 1946, the same had statutory force and a writ petition was, therefore, maintainable against any action taken under such certified standing orders.
10. As to the bar of alternate remedy, Mr. Bandopadhyay urged that it was now well-established that alternate remedy was not an absolute bar to the moving of a writ petition, and in appropriate cases, the writ courts have interfered when the alternate remedy was not equally adequate or effective.
11. In support of his said submissions, Mr. Bandopadhyay firstly referred to a Single Bench decision of this court in the case of Arindam Chatterjee v. Coal India Ltd. and Ors., reported in 1996 Lab IC at page 416, and urged that the learned Judge who had earlier held in Tapas Mondal's case (supra) that, inasmuch as, the Industrial Disputes Act was a self contained Code, the writ court should not interfere in matter arising thereunder, took a different view in the facts of the case and held that since the vires of a clause in the petitioner's appointment order had been challenged and the question raised was a pure question of law, as in the instant case, the bar of alternate remedy would not be applicable.
12. Mr. Bandopadhyay then referred to the decision of the Supreme Court in Baburam Prakash Chandra Maheswari v. Antarim Zila Parishad, , in support of his contention that alternative remedy was not a complete bar to grant of relief under Article 226 of the Constitution and could be invoked in appropriate cases where the alternate remedy available was not equally adequate or efficacious.
13. Mr. Bandopadhyay urged that relief under the Industrial Disputes Act, 1947, was not always available to a workman as a matter of right, where the Government chose not to refer his grievances to the Industrial Tribunal. It could not, therefore, be said that such a remedy, which was dependant on the aforesaid contingency, was an equally efficacious remedy, as the workman's relief could be denied at the very initial stage.
14. In support of his said contention, Mr. Bandopadhyay referred to a Bench decision of this court in the case of Tapas Kumar Jana v. The General Manager, Calcutta Telephones and Ors., reported in 1980(2) CHN at page 434, wherein it was observed that the power to make a reference under Section 10 of the Act has been conferred on the State Government. The exercise of that power by the State Government cannot be claimed as a matter of right. A remedy that cannot be availed of by an aggrieved party as of right will not be considered to be an alternate remedy.
15. Mr. Bandopadhyay urged that in the circumstances, the writ petition was maintainable and was capable of being entertained by this court.
16. Having considered the submissions made on behalf of the respective parties and the decisions cited, it is obvious that the question decided in Tapas Kumar Jana's case (supra) came up for further consideration of the Supreme Court and the Full Benches of different High Courts in various cases, which have been referred to and analysed in detail by the learned Single Judge In K.K. Singh Thakur's case (supra), such as Basant Kumar Sarkar v. Eagle Rolling Mills, , Mohini v. G.M. Syndicate Bank, reported in 1969 FLR at page 1061, Chandrana Singh v. Managing Director, U.P. Co-operative Union and Ors., reported in 63 FLR at page 478 and Gopi Lal Teli v. State of Rajasthan and Ors., reported in FJR (87), 1995, at page 89, and it has been consistently held that the Industrial Disputes Act being a self-contained code, the remedy of a workman would lie under its provisions and the writ court should not ordinarily interfere in matters relating to the said Act.
17. The view taken in Arindam Chatterjee's case (supra), cited by Mr. Bandopadhyay, is, with respect, at a tangent to the consistent view taken by the Supreme Court and other High Courts and in entertaining the writ petition the learned Single Judge appears to have relied upon the observations of the Hon'ble Supreme Court in the case of Dr. Balkishna Agarwal v. State of U.P (1995 AIR SCW 860), to the effect that since the writ petition had already been admitted and was pending hearing in the High Court more than five years and since the question involved was a pure question of law, the High Court should not have non-suited the appellant on the ground of availability of an alternate remedy.
18. As to the status of the certified standing orders, the apparently divergent views expressed in the Rajasthan State Road Transport Corporation case (supra) and Sukhdev Singh's case (supra), will have to be considered in an appropriate case, since I am of the view that this writ application is not maintainable.
Let the writ application be treated as withdrawn, with liberty to the petitioner to proceed afresh under the provisions of the Industrial Disputes Act, 1947.
There will be no order as to costs.