Uttarakhand High Court
Unknown vs Secretary (Payjal on 29 September, 2021
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (S/S) No. 612 of 2021
Swajal Karamchari Sangh
......... Petitioner
Vs.
Secretary (Payjal, Water and Sanitation),
State of Uttarakhand and others
.......Respondents
Present:
Mr. M.C. Pant, Advocate with Mr. Rakshit Joshi, Advocate for
the petitioner.
Mr. C.S. Rawat, Chief Standing Counsel for the
State/respondent nos. 1, 2 & 3.
Mr. S.S. Chauhan, Advocate for the respondent no. 4.
Mr. Pankaj Kumar, Advocate holding brief of Mr. Neeraj Garg,
Advocate for the respondent no. 5.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Challenge in the instant petition is made to the orders dated 05.02.2021, 12.02.2021 and 21.08.2021, on the ground that they are arbitrary, unjust, void and unreasonable. The relief of enhanced salary, etc. have also been sought.
2. The petition has been filed on behalf of 210 workmen (hereinafter they shall be referred to as the "petitioners") working under the respondent no. 4, Director, SWAJAL. It is the case of the petitioners that they were employed prior to creation of the State of Uttarakhand, in the State of Uttar Pradesh, through the Uttar Pradesh Bhutpurva Sainik Kalyan Nigam ("UPSUL"). 2 They were given the benefits of 4th Pay Commission on 17.03.1997, and thereafter they were also given the benefits of 5th Pay Commission. After the creation of the State of Uttarakhand, their services continued on the post and with the service conditions, as were applicable in the State of Uttarakhand, by virtue of Government Order dated 20.04.2001. Subsequently, in the year 2005, the petitioners were employed through Uttarakhand Bhutpurva Sainik Kalyan Nigam Ltd. ("UPNL"). Their conditions of service remained the same.
3. By an order dated 15.09.2017, the salary of the petitioners was reduced. The petitioners challenged it in WP (S/S) No. 2795 of 2017, Swajal Karmchari Sangh and another vs. State of Uttarakhand and others ("the First Petition"), in this Court. The First Petition was decided on 03.07.2018. In the First Petition, on behalf of the State, a statement was given that the impugned Government Order dated 15.09.2017 has been withdrawn.
4. On 24.10.2017, the respondent no. 4 submitted a proposal for restructuring of the staff under SWAJAL. A dispute arose and the State of Uttarakhand referred the matter to the Industrial Tribunal ("the Tribunal) under a reference. The reference is as hereunder:- 3
"Whether the proposal forwarded by the employer for the change in the service conditions of 210 workmen in the departmental structure is proper/legal? If not, to what relief are the 2010 workmen entitled to and the other details?"
5. Based on this reference, Adjudication Case No. 15 of 2018 ("Adjudication Case") was instituted before the Tribunal. The Adjudication Case was still pending, when the respondent no. 1 State Government issued a Government Order ("G.O.") dated 21.08.2020, by which the honorarium paid to the workers engaged through UPNL was revised. Based on the G.O. dated 21.08.2020, another communication dated 05.02.2021 was specifically forwarded to the respondent no. 4, Director, SWAJAL, to comply with the G.O. dated 21.08.2020. It is thereafter, the respondent no. 4, Director, SWAJAL on 12.05.2021, issued a consequential order, thereby making the G.O. dated 21.08.2020 applicable to the petitioners. Petitioners are aggrieved by these three orders.
6. It is case of the petitioners that during the pendency of the Adjudication Case, change in the service condition could not have been done without permission of the Tribunal. It is also the case of the petitioners that the impugned orders are contrary to the provisions of the Constitution of India. By the G.O. dated 21.08.2020, the salary of the petitioners have grossly been reduced. This 4 could not have been done. There are various other grounds also taken in the petition to challenge the impugned orders.
7. The respondent no. 1 filed its counter affidavit. Factual aspects are not much in dispute. According to the State, the petitioners were working on temporary posts. Their terms were extended from time to time. After expiry of the term on 31.08.2019, a proposal was sent for extension of the post. The matter was thereafter forwarded to the Finance Department for due approval. The Finance Department while according approval for extension of temporary post also opined on 02.12.2020 that the petitioners should also be paid remuneration in strict adherence to the rates determined by the State Government vide G.O. dated 21.08.2020. According to the respondent no. 1, the petitioners are paid their salary through UPNL, therefore, there is no relationship of employer and employee between the State and the petitioners. Based on the opinion of the Finance Department, the orders for payment of remuneration to the petitioners have been made in accordance with G.O. dated 21.08.2020.
8. The respondent no. 4, Director, SWAJAL is the employer and in its counter affidavit, the respondent no. 4 5 states that the writ petition is not maintainable. It is objected to on the ground that since the adjudication case is still pending before the Tribunal, wherein an application under Section 6-F of the U.P. Industrial Disputes Act, 1947 ("the Act") is still pending, the matter cannot be agitated at two Forums. In paragraph 6 of its counter affidavit, the respondent no. 4 has also taken a specific plea that clause 23 of the Service Contract provides that "the above personnel of the first party are not permitted to become member of any union formed by employees/officers to the second party and will not interfere in any manner in any dispute between management and employee".
9. The respondent no. 3, Secretary, Sainik Kalyan and Punarvas, State of Uttarakhand has also filed its counter affidavit and it is averred that the workers engaged through UPNL are paid salary as per G.O. dated 21.08.2020.
10. The respondent no. 5, UPNL has also filed its separate counter affidavit and have admitted that the remuneration is being paid to the petitioners as per G.O. dated 21.08.2020.
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11. Rejoinder affidavits have also been filed by the petitioners.
12. Heard learned counsel for the parties and perused the record.
13. Learned counsel for the petitioners submits that the writ petition is maintainable. During the pendency of the Adjudication Case, the respondent no. 1 issued G.O. dated 21.08.2020, which is interference in the judicial proceedings, which amounts to contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971. Learned counsel has also raised the following points in his arguments:-
(i) An act which cannot be done directly cannot be permitted to be done indirectly.
(ii) The dispute with regard to change of service condition of the petitioners has been pending before the Tribunal and the respondent no. 4, employer, could not have changed the service condition without the permission of the Tribunal. Therefore, the respondent no. 4 cannot be permitted to change the service condition, even on the strength of G.O. dated 21.08.2020 or order dated 05.02.2021.7
(iii) The petitioners had not been paid salary since March, 2020 and after the impugned orders, they were paid the arrears from March, 2020 on the revised rate, which was not permissible because even the G.O. dated 21.08.2020 cannot be given retrospective effect.
(iv) In the First Petition, the similar issue was involved. At that time, the State had reduced the salary of the petitioners, which was challenged and subsequently the State withdrew the order dated 15.09.2017, by which the salary of the petitioners was reduced. Now the similar action by the respondent no. 1 and the respondent no. 4 cannot be permitted.
(v) The respondent no. 1 is not the party before the Tribunal and the respondent no.
1 has admitted in its counter affidavit that the provisions of Section 6E of the Act are not applicable to them because they are not the employer and there is no relationship of "employer" and "employee" between the "State" and the "petitioners". 8
(vi) The G.O. dated 21.08.2020 is not a subject matter for dispute before the Tribunal. The State Government is not a party in the Tribunal. The State Government has referred the matter for adjudication to the Tribunal and the employer is the respondent no. 4, Director, SWAJAL.
(vii) The petitioners have also filed a complaint under Section 6F of the Act before the Tribunal. But its scope cannot go beyond the order dated 5.2.2021 and 12.2.2021. In the proceeding under Section 6F of the Act before the Tribunal, the G.O. dated 21.08.2020 cannot be tested because it was not passed by the employer. This G.O. is issued by the State Government.
(viii) The State Government could have waited for the decision of the Tribunal before passing any such order for reducing the salary of the petitioners. Therefore, it is argued that writ petition deserves to be allowed.
14. In support of his contention, learned counsel for the petitioners has placed reliance on the case laws in the cases of :-
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(i) Anaimalai National Estate Workers Union (represented by its General Secretary_, Valparai, and others v. Planters' Association of Tamil Nadu, Combatore, and others, 2002 (4) L.L.N. 530.
(ii) Ex. Capt. K.C. Arora and another, v. State of Haryana and others, (1984) 3 SCC 281
(iii) Maria Margadia Sequeira v. Erasmo Jack DE Sequeria, (2012) 5 SCC 370
(iv) Japur Zila SAhkari Bhoomi Vikas v. Ram Gopal Sharma and others, (2002) 2 SCC 244
(v) Sanjeev Kumar v. PO, Labur Court, Dehrdun, 2011 SCC Online Utt 910
(vi) Balco Captive Power Plant Mazdoor Sangh and another v. National Thermal Power Corporations and others, (2007) 14 SCC 234
15. In the case of Anaimalai National Estate (supra), the Madras High Court discussed the scope of Section 33 of the Industrial Disputes Act, 1947 (for short, "the I.D. Act"). Section 33 of the I.D. Act is, in fact, pari materia to Section 6E of the Act. The Court observed as under:
"Alternate remedy and monstrosity of the issue :10
In the issue of alternate remedy is interrelated with the monstrosity of the issue and would also be relevant for the issue of maintainability which has been considered above. Both Sri A.L. Somayaji and Sri Vijay Narayan had emphasised at length that the forums constituted under the Act were effective remedies and as such writ petitions cannot be entertained. It is further stated that S.33A of the Act entitles the aggrieved party to complain against violation of S. 33(1)(a) of the Act and as such the petitioners were not entitled to invoke the writ jurisdiction. It is true that S.33A of the Act deals with the situation of an employer contravening the provisions of S.33 of the Act during the pendency of the proceedings before the authorities under the Act. An employee aggrieved by the contravention may make a complaint in writing to the concerned authority and such authority shall adjudicate upon it as if it were a dispute pending before it. To appreciate this objection, it is necessary to extract S.33(1) of the Act.
"33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before (an arbitrator or) a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall -
(a) in to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express 11 permission in writing of the authority before which the proceeding is pending.
16. Before proceeding further, it would be apt to examine the provisions of Section 33A of the I.D. Act. It is as hereunder:-
"33A. Special provision for adjudication as to whether conditions of service, etc. changed during pendency of proceedings. - Where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner, -
(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly."
17. Thereafter in paras 51 & 52 of the judgment in the case of Anaimalai National Estate (supra), the Court observed as under:
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"51. The nature and scope of enquiry under S-33 A of the Act, would my opinion) render the provision as an ineffective remedy and cannot be pleaded an effective alternative remedy so as to prevent the union to seek for the issue of a writ of mandamus to compel the employer to comply with the mandatory requirement under S.33(1) of the Act. Resort to S.33A of the Act is nothing more than a fresh reference and another dispute and is not an effective remedy to maintain the status quo? In the following judgments, the Supreme Court had clearly held that the proceedings under S.33A of the Act is not different from a dispute arising out of a reference under S.10 of the Act. For instance, in the case of dismissal of an employee in contravention of S.33 of the Act, on a complaint under S.33A of the Act, the Tribunal has to separately deal with not only the question of contravention, but also the merits of the order of the dismissal.
(i) Punjab National Bank Ltd. v.
A.I.P.N.B.E. Federation [A.I.R. 1960 S.C. 160]
(ii) Delhi Cloth and General Mills Ltd. v.
Rameshwar Dayal [1960-61] 19 FJR 315; AIR 1961 SC 689;
(iii) Bhavnagar Municipality v. A. Karimbai [(1977) 34 F.L.R. 279] (SC)
52. Therefore, resort to S.33 A of the Act is not at all an effective or an alternate remedy. It is in fact more complicated and long winding that the main dispute itself which is awaiting adjudication. The management which intentionally and with impunity violates S. 33A of the Act cannot be heard to plead that S.33A of the Act is an effective alternative remedy. The object of invocation of Art. 226 of the Constitution of India in a monstrous situation is intended to secure timely justice and a plea of alternative remedy cannot be entertained at the instance of defaulting party."
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18. It may be noted here that Section 33A of the I.D. Act is pari materia to section 6F of the Act.
19. In the case of Balco Captive Power Plant Mazdoor Sangh (supra), also an issue with regard to maintainability of the petition was raised. The Hon'ble Supreme Court observed in para 19 as under:
"19. Though no serious objection was made as to the maintainability of the writ petition, however, learned Senior Counsel appearing for the management pointed out that even if there is any breach by BALCO of its obligations in the matter of terms and conditions of employment, the appellants have appropriate remedy under industrial law. Inasmuch as the claim of the employees relates to interpretation of certain clauses in the agreement and appointment letters and no disputed facts are involved and taking note of the fact that the issue relates to employment of few hundreds of employees and in the light of the assertion that transferring them to private organisation from a public sector undertaking without their specific consent is arbitrary and unreasonable and also of the settled position that alternative remedy is rule of discretion and not the rule of law, we accept the conclusion of the High Court and hold that the writ petitions under Article 226 of the Constitution filed by the employees are maintainable."
20. The statute cannot be retrospective; it has to be prospective. On this point, reference has been made to the judgment in the case of Ex. Capt. K.C. Arora (supra). In paragraph 15 of its judgment, the Hon'ble Supreme Court observed as hereunder:
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"15. It may be pointed out at the very outset that the Parliament as also the State Legislature have plenary powers to legislate within the field of legislation committed to them and subject to certain constitutional restrictions they can legislate prospectively as well as retrospectively. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. But the rule in general is applicable where the object of the statute is to affect the vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to effect existing rights, it is deemed to be prospective only. Provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. The Governor can also exercise the same powers under Article 309 of the Constitution and there is not the slightest doubt that the impugned amendment brought in has been made retrospective. The impugned amendments in the instant case by necessary implication have undoubtedly a retrospective effect."
21. In fact, the learned counsel for the petitioners has raised issues that the remedy, which is available to the Tribunal is not and efficacious remedy. Even if a complaint under Section 6F of the Act is filed, it is a kind of information to the Tribunal, which is subsequently reported to the State Government by the Tribunal. Therefore, argument is that the remedy is not efficacious. On this point, learned counsel for the petitioner place reliance on judgment in the case of Jaipur Zila Sahkari Bhoomi Vikas (supra).
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22. In fact, in the case of Jaipur Zila Sahkari Bhoomi Vikas (supra) in view of divergent opinion, a reference was made to the Larger Bench. The reference was as hereunder:-
"If the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947, whether the order of dismissal becomes ineffective from the date it was passed or from the date of non-approval of the order of dismissal and whether failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative?"
23. In para 3 of the judgment, the Hon'ble Supreme Court noticed the earlier judgments. It is as hereunder:-
"3. The two Benches consisting of three learned Judges in (1) Strawboard Mfg. Co. v. Govind1 and (2) Tata Iron & Steel Co. Ltd. v. S.N. Modak2 have taken the view that if the approval is not granted under Section 33(2)(b) of the Industrial Disputes Act, 1947 (for short "the Act"), the order of dismissal becomes ineffective from the date it was passed and, therefore, the employee becomes entitled to wages from the date of dismissal to the date of disapproval of the application. Another Bench of three learned Judges in Punjab Beverages (P) Ltd. v. Suresh Chand3 has expressed the contrary view that non- approval of the order of dismissal or failure to make application under Section 33(2)(b) would not render the order of dismissal inoperative; failure to apply for approval under Section 33(2)(b) would only render the
1. [1962 Supp (3) SCR 618 : AIR 1962 SC 1500]
2. [AIR 1966 SC 380 : (1965) 3 SCR 411]
3. [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : (1978) 3 SCR 370] 16 employer liable to punishment under Section 31 of the Act and the remedy of the employee is either by way of a complaint under Section 33-A or by way of a reference under Section 10(1)(d) of the Act. It may be stated here itself that there was no reference in this decision to the two earlier decisions aforementioned."
24. Thereafter in paras 15 & 16, the Hon'ble Supreme Court discussed the provisions of Section 33A, 33(2) (b) and 33(1) of the I.D. Act and observed as hereunder:-
"15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such an order is set aside under Section 33-A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or 17 void till it is set aside under Section 33-A notwithstanding the contravention of Section 33(2)(b) proviso, driving the employee to have recourse to one or more proceedings by making a complaint under Section 33-A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment.
16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely because penal provision is available or a workman has a further remedy under Section 33-A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33-A. There is nothing in Sections 31, 33 and 33-A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes."
25. The reference was answered in para 18 as hereunder:-
" 18. In view of what is stated above, we respectfully agree with and endorse the view taken in the case of Strawboard 4 and Tata Iron & Steel Co.5 and further state that the view expressed in Punjab Beverages6 on the question is not the correct view. The question raised in the beginning of this judgment is answered accordingly."
4. [1962 Supp (3) SCR 618 : AIR 1962 SC 1500]
5. [AIR 1966 SC 380 : (1965) 3 SCR 411]
6. [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : (1978) 3 SCR 370] 18
26. In the case of Sanjeev Kumar (supra), this Court followed the principle of law as laid down in the case of Jaipur Zila Sahkari Bhoomi Vikas (supra).
27. Learned counsel for the petitioners has also raised a few issues that the State Government could have waited for the final decision of the Tribunal. After all truth should prevail, and he has referred the judgment in the case of Maria Margadia Sequeria (supra), in which the Hon'ble Supreme Court, in fact, discussed about the role of the Court and in para 35 and 36 observed as hereunder:
"35. What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari v. State of U.P.7 this Court reproduced an oft-quoted quotation which reads as under: (SCC p. 687, para 37) "37. ... Every trial is voyage of discovery in which truth is the quest."
(emphasis in original) This Court observed that the "power is to be exercised with an object to subserve the cause of justice and public interest, and for getting the evidence in aid of a just decision and to uphold the truth."
28. Undisputedly, search for truth is the duty of the court.
7. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315] 19
29. On the other hand, learned Chief Standing Counsel would submit that the G.O. dated 21.08.2020 has not been issued specifically to the petitioners. They are general instructions issued for revising the honorarium of all the workers engaged through UPNL. It is not specific. Learned Chief Standing Counsel also takes the following point in his arguments:-
(i) The petitioner was engaged for a particular period through UPNL. They are still working. The petitioners have no right to get the pay-scale after the expiry of period for which they were engaged.
(ii) The petitioners could have approached the Tribunal for redressal of their grievances, which, in fact, they have done. Petitioners have approached the Tribunal by filing a complaint under Section 6F of the Act. If State is not a party before the Tribunal, the petitioner could have impleaded the State as a party. Under the Act, a whole mechanism is given for redressal of the grievances of the workmen. The writ 20 petition could not have been entertained for such reliefs.
(iii) The petitioners cannot claim regularization.
30. Learned Chief Standing Counsel has also referred to para nos. 23 and 24 of the counter affidavit filed by the State to argue that, in fact, the issue with regard to remuneration of the petitioner came up for consideration when the proposal was received for extension of their term. The proposal was forwarded to the Finance Department of the State Government and it is at the advice of the Finance Department that the communication dated 05.02.2021 was made to the respondent no. 4, Director, SWAJAL.
31. It is not relevant as to on whose advise the G.O. dated 21.08.2020 was made applicable to the petitioners. Even if the Finance Department had advised for payment of remuneration as per the G.O. Dated 21.08.2020, the State Government could have brought this fact to the notice of the Finance Department that since the dispute is still pending before the Tribunal and in view of the bar as engrafted in Section 6E of the Act, the service condition cannot be changed. It appears that it was not done. Therefore, defiance of the provision of Section 6E of the Act cannot be permitted to be done by the State on the ground that the Finance Department had advised it. After all, 21 Finance Department is also one of the wings of the State, which is also bound by law, particularly Section 6E of the Act.
32. On behalf of the State, arguments have also been advanced that term of the petitioners was limited; it was for a specified period. This argument has less relevance in the matter because the question before the Court is not with regard to tenure of the petitioners or the nature of their engagement. The only question is as to how could the State, in defiance of the provision of Section 6E of the Act, direct the respondent no. 4 to change the service condition, particularly salary of the petitioners.
33. In support of his contention, learned Chief Standing Counsel placed reliance on the principle of law as laid down in the case of Maharashtra State Road Transport Corporation & another v. Casteribe Rajya P. Karmchari Sanghatana, (2009) 8 SCC 556, Parmeshwar Nanda and others v. State of Jharkhand through Chief Secretary and others, (2020) 12 SCC 131, State of Karnataka v. Uma Devi (2006) 4 SCC 1 and State of Rajasthan and others v. Dayalal and others, (2011) 2 SCC 429.
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34. Learned Chief Standing Counsel referred to the provisions of Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 ("MRTU & PULP Act"), as discussed in the case of Maharashtra State Road Transport Corporation (supra) to argue that, in fact, whole mechanism are given thereunder. But, in fact, the issue before this Court relates to provisions of the Act or the ID Act, 1947. It does not relate to MRTU & PULP Act.
35. In the case of Parmeshwar Nanda (supra), learned Chief Standing Counsel referred to para 21 of the judgment. In the case of Parmeshwar Nanda (supra), the issue was quite distinct. It was with regard to the absorption of the surplus employees and the issue was as to whether subsequent to appointment of the surplus employees can they be treated as fresh appointee or their services rendered by them prior to their declaration as surplus be counted? In that context, the Hon'ble Supreme Court in para 26 observed as hereunder:-
"26. Since the appellants were absorbed as fresh appointees without pay protection and seniority, as a consequence thereof, they will not be entitled to count their past service rendered under the Project for the purpose of pension. We, thus, do not find any error in the order8 passed by the High Court which may warrant interference in the present appeals. Accordingly, the appeals are dismissed."
8. Bholanath Hansda v. State of Jharkhand, 2017 SCC OnLine Jhar 1387 : (2017) 3 AIR Jhar R 280 23
36. It may be noted that in the instant case there is no question of counting of services of any of the petitioners rendered by them at any point of time.
37. In the case of Uma Devi (supra) the Hon'ble Supreme Court laid down various principles. Reference has been made to the observations made with regard to contractual appointment. The Hon'ble Supreme Court observed that "If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued."
38. In the case of Dayalal (supra), reference has been made to para 12, which is with regard to regularisation and parity in pay. In para 12, the Hon'ble Supreme Court observed as hereunder:
"12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should 24 not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post.
Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] , M. Raja v. CEERI Educational Society [(2006) 12 SCC 636 : (2007) 2 SCC (L&S) 334] , S.C. Chandra v. State of 25 Jharkhand [(2007) 8 SCC 279 : (2007) 2 SCC (L&S) 897] , Kurukshetra Central Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680 : (2010) 1 SCC (L&S) 742] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 :
(2009) 1 SCC (L&S) 943] .]"
39. Instant is not a case for regularisation. The only claim which falls for consideration is as to whether the State Government could have issued G.O. dated 21.08.2020 when the Adjudication Case was still pending and also as to whether the respondent no. 4 could have issued consequential order?
40. Learned counsel appearing for the respondent no. 4 would submit that the petitioner could not avail two remedies at two different Forums. It is submitted that the petitioners have admittedly filed a complaint under Section 6F of the Act before the Tribunal. It is pleaded case of the petitioners and, according to the petitioners, they filed the writ petition because the Presiding Officer was not appointed in the Tribunal. It is submitted that now the Tribunal is functional and the next date is fixed sometimes in the first week of October, 2021.
41. Learned counsel for respondent no. 4 also raised the following points:-
(i) Since the matter is already sub judice before the Tribunal at the instance of the petitioners 26 themselves, this Court may direct the Tribunal to decide the complaint and adjudication case, as expeditiously as possible.
(ii) The petition is not maintainable at the instance of the petitioner no. 1 because earlier the First Petition was also filed by the petitioner no. 1 and 2, but when objections were raised, the name of the petitioner no. 1 was deleted from the array of parties and subsequently the First Petition proceeded at the instance of petitioner no. 2 alone.
(iii) Against the final order passed in the First Petition, review was filed by the respondent no.
4, which is still pending.
42. This is a writ petition under Article 226 of the Constitution of India. The jurisdiction cannot be guided by a statute. There are self-imposed restrictions. Undoubtedly, availability of alternate remedy has a role to play. First and foremost, the Court would touch upon the relevancy of alternate efficacious remedy.
43. In the case of Commissioner of Income Tax and others v. Chhabil Das Agarwal, (2014) 1 SCC 603, the 27 Hon'ble Supreme Court discussed this aspect and in para 15 observed as hereunder:-
"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 case9, Titaghur Paper Mills case10 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 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."
44. In D.R. Enterprises Limited v. Assistant Collector of Customs and others, (2015) 15 SCC 431, the Hon'ble Supreme Court further reiterated that the alternate remedy is a concept, which is self-imposed restriction alone. In para 23, the Hon'ble Court observed as hereunder:-
9. [AIR 1964 SC 1419]
10. Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131 28 "23. The position would have been different if it was a case of inherent lack of jurisdiction. That is not so.
The powers of the High Court under Article 226 of the Constitution, while issuing appropriate writs, are very wide. Even if there is an alternate remedy that may not preclude the High Court from exercising the jurisdiction in a particular case. In the face of alternate statutory remedies, when the High Court declines to exercise the jurisdiction under Article 226 of the Constitution, it is a self-imposed restriction only. In the instant case, what is pertinent is that it is the appellant which not only made a prayer in the writ petition for deciding the issue in question, even at the time of hearing (as noted above), it is the appellant which pressed for the decision with the submission that existence of alternate remedy should not deter the Court to render the decision on merits. In such a situation, the objection, if any, to the maintainability of the writ petition could have been taken by the respondent and it does not behove the appellant to raise this objection in the present appeal after pleading in the High Court that the matter be decided on merits."
45. This issue further came up for discussion before the Hon'ble Supreme Court in Maharashtra Chess Association v. Union of India and others, (2020) 13 SCC
285. In para 12, the Hon'ble Supreme Court referred the observation made by Lord Coke in the case of U.P. State Sugar Corpn. Ltd. v. Kamal Swaroop Tondon, (2008) 2 SCC 41, which is as hereunder:-
"35. ... It is well settled that the jurisdiction of the High Court under Article 226 of the Constitution is 29 equitable and discretionary. The power under that Article can be exercised by the High Court "to reach injustice wherever it is found"."
46. The Hon'ble Supreme Court further observed in para 13 as hereunder :-
"13. The role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. In order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. They are conferred in aid of justice. This Court has repeatedly held that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. In A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani11 a Constitution Bench of this Court held that the nature of power exercised by the High Court under its writ jurisdiction is inherently dependent on the threat to the rule of law arising in the case before it: (AIR p. 1510, para 10) "10. ... We need only add that the broad lines of the general principles on which the court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court."
11. (1962) 1 SCR 753 : AIR 1961 SC 1506] 30 The powers of the High Court in exercise of its writ jurisdiction cannot be circumscribed by strict legal principles so as to hobble the High Court in fulfilling its mandate to uphold the rule of law."
47. In fact, in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & others, (1998) 8 SCC 1, a few exceptions have been carved out by the Hon'ble Supreme Court while entertaining a writ petition under Article 226 of the Constitution of India, despite availability of alternate remedy. In para 14 and 15, the Hon'ble Supreme Court observed as hereunder:-
"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited to 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 31 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."
48. In a case decided by this Court i.e. Bhuvan Chandra Pandey and others v. State of Uttaranchal and others, (2006) 2 UD, 439, this Court observed as hereunder:-
"9. It is well settled principle of law that the High Court cannot lose sight of the fact that the matters of alternative remedy has nothing to do with the jurisdiction of the cases, normally the High Court should not interfere if there is an adequate efficacious alternative remedy available. If anybody approaches the High Court without availing the alternate remedy the High Court would ensure that he had made out a strong case or that there exist good ground to invoke the extraordinary jurisdiction. The rule of alternative remedy is essentially a rule of policy, convenience and discretion. When the petitioner files the petition before the High Court he should also state the reasons as to why he thought that the alternative remedy would not be efficacious. The High Court should not bypass the said Tribunal where the government servant is aggrieved by an order of the government pertaining to the service matter within the jurisdiction of the Tribunal."
49. The Court does not intend to burden this judgment by various pronouncements of the Hon'ble 32 Supreme Court. The principle of law has already been summed up in the case laws as cited hereinabove. The principles are well settled. If alternate efficacious remedy is available, where the grievances may be redressed to, the Court should be slow to entertain writ petitions.
50. The second question is whether the petitioners can avail efficacious remedy before the Tribunal?
51. Admittedly, the respondent no. 4 forwarded a proposal for restructuring of the staff on 24.10.2017. The proposal is Annexure 5 to the writ petition. It is admitted that such proposal was received and it is also admitted that by this proposal the posts were reduced and salary was made at par with the UPNL engaged workers. In table 6, the learned counsel for the petitioners has referred to posts as Sr. Nos. 12, 15 and 16, for which proposal was "salary as per rates of UPNL". This was disputed and the matter was referred to the Tribunal on 03.07.2018, which, as admitted, is the basis of Adjudication Case. It was still pending, when the G.O. dated 21.08.2020 was issued. The objection is that a complaint under Section 6F has been filed.
52. Before discussing further, it would be apt to reproduce what Sections 6E and 6F of the Act say. In fact, 33 Section 6E of the Act provides for non-changing of service conditions, etc. during the pendency of the proceedings before the Tribunal and Section 6F provides for the contingencies when service conditions are changed during pendency of the proceedings. These Sections are as hereunder:-
"6-E. Conditions of service, etc. to remain unchanged in certain circumstances during the pendency of proceedings. - (1) During the pendency of any conciliation proceeding before a Conciliation Officer or a Board or of any proceeding before a Labour Court or Tribunal in respect of an industrial dispute, no employer shall, -
(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding, or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending.
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute, -
(a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding, or
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise :
Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2) no employer shall during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute, -
(a) by altering, to the prejudice of such protected workman, the conditions of service 34 applicable to him immediately before the commencement of such proceeding, or
(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, such with the express permission in writing of the authority before which the proceeding is pending.
Explanation. - For the purposes of this sub- section, a 'protected workman' in relation to an establishment, means a workman who, being an officer of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall not exceed one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the State Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which they may be chosen and recognized as protected workmen.
(5) Where an employer makes an application to a Board, Labour Court or Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, as expeditiously as possible, such order in relation thereto as it deems fit.] 6-F. Special provision for adjudication as to whether the conditions of service, etc. changed during the pendency of proceedings. - Where an employer contravenes the provisions of Section 6-E during the pendency of proceedings before a Labour Court or Tribunal, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner, to the Labour Court or Tribunal as the case may be, and on receipt of such complaint that Labour Court or Tribunal as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with this Act and shall submit its award to the State Government and the provisions of this Act shall apply accordingly."
53. A bare perusal of Section 6F of the Act would reveal that, in fact, if such change in service condition is reported to the Tribunal, the Tribunal shall adjudicate 35 upon the complaint, as if it were a dispute referred to it and then submit an award to the State Government.
54. It may be noted that Section 6E of the Act restrains the employer to change the service conditions during the pendency of the proceeding before the Tribunal. The word used in sub-section (1) of Section 6E is the "employer". If employer changes the service conditions, it may be reported to the Tribunal.
55. There is no dispute that by virtue of G.O. dated 21.08.2020, the salary of the petitioners has been reduced and it has been made at par with those workers, who have been engaged through UPNL. Learned Chief Standing Counsel has argued that, in fact, the State could not discriminate between two sets of workers, one working through UPNL in SWAJAL and other working in other departments.
56. The State may have its own reasons, but the law has to take its own course. It is a fact that in the year 2017, the State had tried to reduce the salary of the petitioners making it at par with the UPNL employees. It was challenged in the First Petition when the State gave a 36 statement that they have withdrawn such order and based on it, the First Petition was disposed of.
57. A few references may be made here, at this stage alone.
58. In the year 2001, when the services of the petitioners were taken in the State of Uttarakhand, a G.O. dated 28.04.2001 was issued, which is Annexure 9 to the writ petition and it states about the pay-scale, etc. of the petitioners. Not only this, on 14.07.2005, when the services of the petitioners were taken through UPNL, a communication was made to the respondent no. 4 on 14.07.2005 by UPSUL categorically stating that the service conditions of the petitioners shall not be disturbed. This Court is evaluating as to whether the service conditions of the petitioners could have been changed during the continuance of the proceedings before the Tribunal?
59. The fact remains that earlier an attempt was made by the State to reduce the salary of the petitioners and with the intervention of the Court, the State gave a statement and withdrew the order dated 15.09.2017. It is also true that the G.O. dated 21.08.2020 is not restricted to the petitioners alone. It is a general order applicable to 37 all such workers, who are engaged through UPNL. This is what is argued by the learned Chief Standing Counsel. But, the fact remains that it also governs the petitioners. In the year 2017, the State tried to do it, but then withdrew such order. Now the State has done it when the Adjudication Case is pending and after issuance of the G.O. dated 21.08.2020, another order was issued on 05.02.2021 by an Additional Secretary to the Government of Uttarakhand and it was categorically addressed to the respondent no. 4. So, the argument as advanced by the learned Chief Standing Counsel that the G.O. dated 21.08.2020 is not specifically applicable to the petitioners has no merit for acceptance. It has been made applicable to all, including the petitioners and by the subsequent impugned order dated 05.02.2021 issued by the Additional Secretary to the Government of Uttarakhand, it was conveyed to the respondent no. 4, Director, SWAJAL to make this G.O. dated 21.08.2020 applicable to the petitioners. This is what the respondent no. 4 did on 12.02.2021, when he made the G.O. dated 21.08.2020 applicable to the petitioners. So, one fact is clear that the service conditions, as far as salary of the petitioners is concerned, have been changed by the State during the pendency of the Adjudication Case.
38
60. The reference, which was made to the Tribunal is before the Court. It is Annexure 6 to the writ petition. It records that the respondent no. 4, Director, SWAJAL is employer and the workmen are SWAJAL Karmchari Sangh i.e. the petitioner no. 1. State has referred the matter. State was not in dispute with the workmen as such. The dispute was between the employer and the employee. The employer was the respondent no. 4, Director, SWAJAL and the workmen were the petitioners.
61. In view of Section 6E of the Act, the employer could not have changed the service conditions during the pendency of the Adjudication Case. The State intervened. It may be termed as if the referee has started playing for a party. In the instant case, the State has started playing for the respondent no. 4, Director, SWAJAL. The G.O. dated 21.08.2020 has been made applicable to all the workers engaged through UPNL. The State did not stop here. By a communication dated 05.02.2021, Additional Secretary of the Government of Uttarakhand directed the respondent no. 4 to make this G.O. dated 21.08.2020 applicable to the petitioners. Though looks impliedly, but, in fact, it is not impliedly but the State has directly intervened in the matter and changed the service conditions of the petitioners.
39
62. The State is not a party before the Tribunal. The State has referred the matter for adjudication to the Tribunal. The dispute, as stated, is between the respondent no. 4 and the petitioners. The service condition could not have been changed in view of Section 6F of the Act by the employer. The act of the State is not for adjudication before the Tribunal. The act of the State is challenged before this Court by challenging the G.O. dated 21.08.2020. Therefore, this Court holds that though petitioners have a remedy to file a complaint under Section 6F of the Act for any change in the service condition made by the employer during the pendency of the proceedings before the Tribunal, but the action of the State cannot be put to challenge in a complaint under Section 6F of the Act before the Tribunal. Therefore, this Court holds that the petitioners do not have any efficacious remedy before the Tribunal and the writ petition is maintainable.
63. An objection has been raised that SWAJAL Karmchari Sangh cannot institute the proceedings. This Court does not intend to go into this controversy for the simple reason that the reference, which was made by the State Government to the Tribunal, which is Annexure 6 to the petition, records SWAJAL Karmchari Sangh as workmen and the respondent no. 4 as the employer. It is 40 true that in the First Petition, on 22.09.2017, the Court recorded that "learned counsel for the petitioner seeks permission to withdraw the present writ petition on behalf of petitioner no. 1 with liberty to file fresh writ petition on behalf of the individual members of the Association". But, the fact remains that the First Petition was decided on 03.07.2018. The judgment is Annexure 17 to the instant petition and it records the petitioners as "SWAJAL Karmchari Sangh and another", although there is an amended memo, which records Arvind Payal as the sole petitioner.
64. Be it as it may, Arvind Payal is petitioner in the instant petition also. So, this Court holds that merely on this ground that petitioner no. 1 had earlier withdrawn the petition, it cannot be said that the petition at his behest is not maintainable.
65. The condition of service could not have been changed during the pendency of the adjudication case, as per Section 6E of the Act. The State Government though referred the dispute to the Tribunal, but on its own issued the G.O. dated 21.08.2020 and further directed the employer i.e. the respondent no. 4 to implement the G.O. dated 21.08.2020 in respect of the petitioners. Therefore, 41 the State has contravened the provisions of Section 6E of the Act. It is true that complaint under Section 6F of the Act has been made by the petitioners before the Tribunal. Copy of that complaint is also before the Court as Annexure 26 and the petitioners write in that complaint in para 31 as hereunder:-
"31. That in view of the aforesaid facts it is establish that there is illegal change in service conditions of the workmen whose cause involved in this Petition and no permission is obtained from this Tribunal for affecting such change, thus the impugned orders are void and amounts to unfair labor practice. The complainants are also entitled for damages and compensation which the court may deem fit and proper."
66. During the course of argument, learned counsel for the petitioners would submit that the G.O. dated 21.08.2020 cannot be examined by the Tribunal. The Tribunal can, at the most, examine the impugned order dated 12.02.2021, which was issued by the employer i.e. the respondent no. 4, the Director, SWAJAL. He would submit that the remedy before the Tribunal is not efficacious.
67. This Court has already held that the G.O. dated 21.08.2020 cannot be tested before the Tribunal because it is not an order passed by the employer. The G.O. dated 42 21.08.2020 is not a defiance made by the employer under Section 6E of the Act. The employer has made defiance under the provision of Section 6E of the Act in the garb of G.O. dated 21.08.2020 and a communication dated 05.02.2021 received by the respondent no. 4 from an Additional Secretary of the State of Uttarakhand. Therefore, despite a complaint having been filed under Section 6F of the Act, still in view of non-availability of the efficacious remedy, this Court is of the view that the writ petition is maintainable.
68. For the forgoing reasons, this Court is of the view that the writ petition deserves to be allowed.
69. The writ petition is allowed. The G.O. dated 21.08.2020 and the subsequential orders dated 05.02.2021, 12.02.2021 are hereby quashed qua the petitioners.
(Ravindra Maithani, J.) 29.09.2021 Avneet/