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1984 DIGILAW 46 (PAT)

Adul Khalique v. H. E. C. Ltd.

1984-01-31

ABHIRAM SINGH, S.ROY

body1984
JUDGMENT Satyeshawar Roy, J. By this application under Articles 126 and 227 of the Constitution of India the petitioner has prayed for quashing annexure 7, order dated 21st January, 1980 passed on behalf of respondent no. 1 by which the petitioner was removed from service of respondent no.1 and the order contained in annexure 8 by which on behalf of respondent no. 1 the appellate authority rejected the appeal filed by the petitioners. 2. The petitioner joined service of respondent no. 1 in the year 1963. There was a departmental enquiry against him with regard to certain charges and he was found guilty. When he was removed from service, the petitioner raised a dispute which was referred under section 10 of the Industrial Disputes Act, 1947 (the I.D. Act). The petitioner withdrew from the reference. The respondent no. 1 gave a fresh appointment to the petitioner in the year 1978. While he was so working annexure 7 was issued and on appeal preferred by the petitioner the order contained in annexure 8 was passed. 3. The petitioner has challenged the validity of the orders on the grounds that his removal from service amounts to retrenchment and as section 25F of the I.D. Act, was not complied with the order was void abinitio. During the course of hearing on behalf of the petitioner it was contended that Standing Order no. 31 of the certified Standing Orders of the respondent no. 1, did not apply to the case and annexure 7 did not disclose that it was passed under that Standing order. In the counter affidavit filed on behalf of the respondents, inter alia, it was contended that no relief can be granted to the petitioner in this writ application even if the order of removal cannot be upheld. The petitioner was removed from service in terms of the Standing Order no. 31. It was not a case of retrenchment and, therefore, section 25F of the I.D. Act, was not attracted. Chapter VA of the I.D, Act, did not apply to the establishment of respondent no.1 and, therefore, section 25 F was not attracted. 4. According to the counter affidavit more than twelve thousand workmen are employed by respondent no.1. Clearly, therefore, section 25F of the I.D. Act, appearing in Chapter VA of the I.D. Act, has no application to the petitioner. 4. According to the counter affidavit more than twelve thousand workmen are employed by respondent no.1. Clearly, therefore, section 25F of the I.D. Act, appearing in Chapter VA of the I.D. Act, has no application to the petitioner. Section 25 N appearing in Chapter VB of the I.D. Act, will apply in the case of the workmen of respondent no. 1. 5. According to the respondents the order of removal of the petitioner was passed under standing order no. 31. There is no dispute that the conditions of service of the workmen of respondent no.1 including the petitioner were regulated by the certified Standing Orders framed under the Industrial Employment (Standing Orders) 1946 (the Standing Orders Act). 6. Mr. Habib, learned counsel appearing on behalf of the petitioner, did not dispute the fact contended by Mr. S.B. Sinha, learned counsel appearing on behalf of the respondent that the order contained in annexure 7 amounted to punishment. That being the factual position, the removal of the petitioner can not be said to be retrenchment as defined in section 2(oo) of the I.D. Act. Consequently section 25N of the I.D. Act, has no application to the case of the petitioner. 7. Mr. S.B. Sinha contended that the Standing Orders were not statutory and the relationship between the parties was purely that of master and servant, Mr. S.B. Sinha, addressed us at length on the question whether the terms and conditions of the service of the petitioners is statutory or were mere contractual. According to him it was contractual and therefore cannot be enforced, ever if there has been violation of the terms and conditions of the service. According to him in Calcutta Electric Supply Corporation Limited Vs. Ram Rattan Mahto it was held that the terms and conditions as embodied in certified Standing Orders can not be enforced in a court of law. He submitted that the Calcutta High Court case should be preferred to the case of Tata Chemicals Limited Vs. Kailash C. Adhvaray. Both the cases came to the High Court from decrees passed in suits filed by the workmen in which they challenged the validity of the orders passed by the management. He submitted that the Calcutta High Court case should be preferred to the case of Tata Chemicals Limited Vs. Kailash C. Adhvaray. Both the cases came to the High Court from decrees passed in suits filed by the workmen in which they challenged the validity of the orders passed by the management. The Calcutta High Court held that the suit was hit by section 14(h) of the Specific Relief Act, 1963 as although the conditions of service of the workmen was governed by the certified Standing Orders, yet the law that was applicable was the law of contract between master and servant. The Gujrat High Court held that the condition of service of the workman was statutory as the same was regulated by the certified Standing Orders and suit was maintainable for enforcement of it. 8. Some of the relevant cases of the Supreme Court on the point whether in an establishment where there are certified Standing Orders, the conditions of service of the workman are statutory terms and conditions or contractual are : Bagaikot Cement Co. Ltd. Vs. R.K. Pathan and others, Workmen of Dewan Tea Estate and others vs. Their Management. Both the cases arose out of reference under section 10 of the I.D. Act. In both cases the Supreme court observed that the Standing Orders which had been certified under the Standing Orders Act, became part of the statutory terms and conditions of service between the industrial employer and his employees and the same will govern the terms between the parties. So far the Patna High Court is concerned, the only case which we could find out is Bihar Journals Vs. Ali Hasan. In Ali Hasan’s case (supra) it was conceded on behalf of both the parties that the certified Standing Orders have statutory force and because of the same there was a statutory contract between the employer and the workmen concerned in that case. In the Western India Match Co. V. Rameshwar Prasad Allahabad High Court held that the certified Standing Order have statutory force and became statutory terms of employment. If any punishment is inflicted in violation of the relevant Standing Orders, the suit is not hit by section 21(b) of the Specific Relief Act, 1877 which corresponds to section 14(h) of 1963 Act. In Abani Bhusan Biswas Vs. V. Rameshwar Prasad Allahabad High Court held that the certified Standing Order have statutory force and became statutory terms of employment. If any punishment is inflicted in violation of the relevant Standing Orders, the suit is not hit by section 21(b) of the Specific Relief Act, 1877 which corresponds to section 14(h) of 1963 Act. In Abani Bhusan Biswas Vs. Hindustan Cable Ltd it was held that the Standing Orders after they ate duly certified have be force of law like and other instrument, and dismissal not in terms of the certified Standing Order is not mere violation of the terms of contract between the parties. This decision was not noticed by the Calcutta High Court in Ramratan’s case (supra). In view of tile Supreme Court decisions it must be held that the certified Standing Order of the establishment of respondent no. 1 are statutory terms and conditions governing the relationship between respondent no. 1 and its workmen. Violation of the requirement of the certified Standing Order must, therefore, be held to be violation of statutory terns and conditions of service and not of contractual terms and conditions of service. In Ramratan’s case (supra) Calcutta High Court, inter alia, relied in U.P. State Warehousing Corporation Vs. Chandra Kiran Tyagi and Indian Airlines Corporation Vs. Sukdeo Rai for holding that although Standing Orders were framed under the Standing Orders Act, the conditions of service still remain contractual. The High Court did not notice that in Sukhdeo Singh and others Vs. B.S.S. Raghuvanshi, commonly known as Oil and Natrual Gas Commission case it was held that the decisions in those cases were in direct conflict with Mafatlal Naraindas Barot Vs. Div Control S.T. Mehsana a decision of the Constitution Bench. I am of the opinion that Ramraian’s case (supra) has not correctly laid down the law in this regard. 9. The next point that arises is whether respondent no. 1 could have taken action under certified Standing Order no. 31 and whether the petitioner can be granted any relief in this case. Where a right or liability is created by statute, if that statute provides a remedy, the remedy provided by that statute done must be followed. The rights and liabilities have been created by the certified Standing Orders. Whether the Standing Order Act, provides any remedy. 31 and whether the petitioner can be granted any relief in this case. Where a right or liability is created by statute, if that statute provides a remedy, the remedy provided by that statute done must be followed. The rights and liabilities have been created by the certified Standing Orders. Whether the Standing Order Act, provides any remedy. The only relevant section of that Act, is section 13A which provides that if any question arises as to the application or interpretation or a Standing Order certified under that Act. any employer or workman may refer the question to any of the Labour Courts constituted under the I.D. Act, and specified for the disposal of such proceeding by the appropriate Government by notification in the official Gazette and the Labour Court to which the question is so referred shall, after giving the parties an opportunity of being heard, decide the question and such decision shall be final and binding on the parties. 10. According to the respondents, the petitioner was removed from service under Standing Order no. 31, According to the petitioner Standing Order no. 31 had no application as there was no material to show that the petitioner was a security risk. The dispute, therefore, is whether on the materials found against the petitioner, Standing Order no. 31 was applicable. Since remedy has been provided in section 13A of the Standing Orders Act, I find no reason to exercise extra ordinary jurisdiction under the Constitution. Further, no relief can be granted to the petitioner in this application as we cannot go into the correctness or otherwise on question of facts on the basis of which respondent no.1 asserted that the petitioner was security risk and, therefore, Standing Order no. 31 was attracted. The Labour Court under section 13A may very well go into the same. Even apart from the provision of the Standing Orders Act, the petitioner may raise an industrial dispute under the I.D. Act. So far suit is concerned, the civil court has no jurisdiction in the facts of this case as this is a case where section 13A of Standing Orders Act, is clearly attracted. 11. In the result, the application fails and the same is dismissed without costs. The petitioner may, if so adviced, seek his remedy before appropriate forum. I agree. Application dismissed.