JUDGMENT 1. - The important preliminary question which demands and needs answer in all these writ petitions is whether for the enforcement of a right or an obligation created by or under the Industrial Disputes Act, 1947 (for short, hereinafter "the Act") a writ petition under Article 226 of the Constitution can or should be entertained straightway by this court without the petitioners having first exhausted or availed of the remedy provided to them for the enforcement of such rights or obligations by the Act itself. 2. I may proceed to analyse the various rights, obligations and liabilities created under the Act and the remedies for their enforcement provided for or available under the Act. Before proceeding to do that, it may be mentioned that the cases of dismissal of a servant fall under three broad heads. The first head relates to relationship of master and servant governed purely by contract of employment. Any breach of contract in such a case is enforced by suit for wrongful dismissal and damages. Just as a contract of employment is not capable of specific performance similarly breach of contract of employment is not capable of finding a declaratory judgment of subsistence of employment. A declaration of unlawful termination and restoration to service in such a case of contract of employment would be indirectly an instance of specific performance of contract for personal services. Such a declaration is not permissible under the law of Specific Relief Act (See Dr. S. Dutt v. University of Delhi. AIR 1958 S.C. 1050 , Vaish Degree College v. Laxmi Narain, AIR 1976 S.C. 888 and Dipak Kumar v. Director of Public Instruction, AIR 1987 S.C. 1422 . 3. The second type of cases of master and servant arises under Industrial law where under an Industrial Tribunal has power in an award made on a reference under the Act to direct reinstatement of discharged employees. It was observed in Western India Automobile Association v. Industrial Tribunal, Bombay, AIR 1949 F.C. III at P. 115 , that : "Any dispute connected with the employment or non-employment would ordinarily cover all matters that require settlement between workmen and employers, whether those matters concern the causes of their being out of service or any other question, and it would also include within its scope the reliefs necessary for bringing about harmonious relations between the employers and the workers". 4. 4. Thus under Industrial law, a servant who is wrongfully dismissed or discharged may be reinstated. This is a special provision under Industrial Law. This relief is a departure from the reliefs available under the Indian Contract Act and the Specific Relief Act which do not provide for reinstatement of a servant. 5. The third category of cases of master and servant arises in regard to the servant in the employment of the State or of other public or local authorities or bodies created under statute. The Courts keep the State and the public authorities the limits of their Statutory powers. Where a State or a public authority dismisses an employee in violation of the mandatory procedural requirements or the grounds which are not sanctioned or supported by statute, the Courts may exercise jurisdiction to declare the act of dismissal to be a nullity. Such implication of public employment is thus distinguished from private employment in pure cases of master and servant. Then as laid down in State of Orissa v. Dr. (Miss) Binapani Dei, ( AIR 1967 S.C. 1269 ), that the rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. That is the basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. This principle would be equally applicable to local Government bodies which fall within the definition of ',State" given in Article 12 of the Constitution (See. House of Lords in Vine v. National Dock Labour Board, 1957 AC 488, S.R. Tewari v. The District Board, Agra, AIR 1964 S.C. 1680 , Life Insurance Corporation of India and Others v. Sunil Kumar Mukherjee and Others, AIR 1964 S.C. 847 , Calcutta Dock Labour Board v. Jaffar Imam, AIR 1966 S.C. 282 , Malat Lal Naraindas Brot v. Divisional Controller, STC, AIR 1966 S.C. 1364 , Barber v. Manchester Hospital Board. (1958)1 All ER 322, Ridge v. Baldwin. 1964 AC 40 ; Malloch v. Aberdeen Corporation, (1971)2 All ER 1278 and McClelland v. Northern Ireland General Health Services Board, (1957) 1 WLR 594) . (1958)1 All ER 322, Ridge v. Baldwin. 1964 AC 40 ; Malloch v. Aberdeen Corporation, (1971)2 All ER 1278 and McClelland v. Northern Ireland General Health Services Board, (1957) 1 WLR 594) . For persons holding office under the State (See Parshottam Lal Dhingra v. Union of India, AIR 1958 S.C. 36 and Articles 309 and 311 of the Constitution of India). 6. Coming to the rights, obligations and liabilities created under the Act and the remedies provided therefor, it may be stated that it was in the year 1920 that the first Trade Disputes Act was enacted but its predominant object was to forbid strikes rather than to make provision for the adjudication of "industrial disputes". State in prevention in the settlement of industrial disputes started as a consequence of Trade Disputes Act, 1929 but its main purpose was only to provide a conciliation machinery to bring about peaceful settlement for industrial disputes. At that time the Government Policy was that of laissez faire and only that of "selective intervention". Active intervention of Government came during Second World War and was due to emergent compulsions caused by the war. After the termination of the Second World War, the first legislation came and was cited as Industrial Disputes (Standing Orders) Act, 1946 which made provision for framing and certifying of Standing Orders covering various aspects of service conditions including the classification of employees, procedures for disciplinary actions etc. Matters to be provided for in the Standing Orders under this Act were specified in the Schedule to the Act and, inter alia, covered following matters: 1. Classification of Workmen, e.g. whether permanent, temporary, apprentices. probationers, badlies. 2. Manner of intimating to workmen periods and hours of work, holidays, pay days and average rates. 3. Termination of employment, and the notice thereof to be given by employer and workmen. 4. Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct. 5. Means of redress for workmen against unfair treatment or roomful actions by the employer or his agents, servants etc. 7. Rules framed in exercise of the powers conferred by Section 15, read with Section 2(b) of the Industrial Employment (Standing Orders) Act, 1946 prescribed the Model Standing Orders as set in Schedule-I appended to the rules. 5. Means of redress for workmen against unfair treatment or roomful actions by the employer or his agents, servants etc. 7. Rules framed in exercise of the powers conferred by Section 15, read with Section 2(b) of the Industrial Employment (Standing Orders) Act, 1946 prescribed the Model Standing Orders as set in Schedule-I appended to the rules. Draft Standing Orders were to be submitted by industrial establishments containing provision for every matter set out in the Schedule to the Act and where Model Standing Orders had been prescribed, they were to be, so far as practicable, in conformity with such model, Para 13(2) of the Model Standing Orders was as under : "No temporary workman whether monthly rated, weekly-rated or piece rated and no probationer or badlies shall be entitled to any notice or pay in lieu thereof if his services are terminated, but the services of a temporary workman shall not be terminated as a punishment unless he has been given an opportunity of explaining the charges of misconduct alleged against him in the manner prescribed in Paragraph 14." 8. Paragraph 14 of the Model Standing Order specified various acts and omissions which were to be treated as misconduct and provided for the holding of domestic enquiry and its procedure where disciplinary proceedings were initiated against a workman. 9. Then came the Act cited as the Industrial Disputes Act, 1947 which came into force from 1st April, 1947. Trade Unions Act, 1926 and the Standing Order is Act 1946 were the foundation stones upon which the edifice of industrial jurisprudence in India has been constructed and the Industrial Disputes Act, 1947 is he sheet-anchor of the industrial adjudication. 10. The Act was intended to be a self-contained one and it sought to achieve social justice on the basis of collective bargaining, conciliation, arbitration and failing that compulsory adjudication. Since its enactment, the Act has been amended by many Amending Acts. The Act as originally enacted, defined in its Section 2 (K) -Industrial dispute as meaning any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which was connected with the employment or non- employment or the terms of employment or with the conditions of labour. of any person. The Act as originally enacted, defined in its Section 2 (K) -Industrial dispute as meaning any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which was connected with the employment or non- employment or the terms of employment or with the conditions of labour. of any person. It is clear from this definition that on one side at least of the dispute the disputants are a body of men collectively and not individually. It was held in Central Provinces Trust Services Ltd. v. Raghunath Gopal Patwardhan, AIR 1957 S.C. 104 , that -the preponderance of judicial opinion is clearly in favour of the view that an individual dispute cannot per se be an industrial dispute' but may become one if taken up by a trade union or number of persons". (See also Newspapers Ltd. v. State Industrial Tribunal, AIR 1957 S.C. 532 and Associated Cement Companies v. Their Workmen, AIR 1960 S.C. 777 ). In Workmen v. Dharampal Premchand (Sanghandi), AIR 1906 S.C. 182 his Lordship Gajendragadkar C.J. observed : ''On this view, a dispute between an employer and a single employee cannot, by itself, be treated as an industrial dispute. unless it is sponsored or espoused by the union of workmen or by a number of workmen In other words, if a workman is dismissed by his employer and the dismissed workman's case is that his dismissal is wrongful, he can legitimately hi,v, the said dispute referred for adjudication before an Industrial Tribunal under Section 10(1) of the Act provided a claim for such a reference is supported either by the Union to which he belongs or by a number of workmen". 11. This decision was followed in Workmen of Indian Express Newspaper (P) Ltd. v. Management (1970) II LLJ 132 (S C.) and in M/s Tata Chemicals Ltd. v. The Workmen employed under M/s Tata Chemicals Ltd., AIR 1978 S.C. 828 . 12. This position of law caused hardship for individual workmen who were discharged, dismissed, retrenched or whose services were otherwise terminated when they could not find support by a union or any appreciable number of workmen to espouse their cause. To obviate this hardship, the Act was amended by the Amending Act of 1965 by addition of Section 2-A in the Act. To obviate this hardship, the Act was amended by the Amending Act of 1965 by addition of Section 2-A in the Act. As stated in Chemicals & Fibers India Ltd. v. D.G. Bhoir, (1975) 11 LLJ 168 (170) (S C.). in enacting Section 2-A. the intention of the legislature was that an individual workman, who was discharged, dismissed or retrenched or whose services were otherwise terminated. should be given relief without it being necessary for the relationship between the employer and the whole body of employees being attracted to that dispute and the dispute becoming generalised one between labour on the one hand and the employer on the other. Any other type of dispute regarding an industrial workman is not contemplated by Section 2-A and will be governed by the principles of law laid down by the Supreme Court in connection with the conversion of an individual dispute into "industrial dispute" by espousal. The Amending Act 46 of 1982 (brought into force with effect from 21-8-1984) has inserted sub- clause (bb) in the definition of "retrenchment" under Section 2(00) which excludes the -'non-renewal of contract of employment between the employer and the workmen concerned on its expiry" and the contract of employment being -terminated under a stipulation in that behalf contained therein" from the purview of the definition of "retrenchment". 13. The definition of the term retrenchment" was for the first time inserted in the Act by the Industrial Disputes (Amendment) Act, 1953 with effect from 24.10.1953. It reads as under : "(OO) "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include - (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (bb) termination of the service of the workman as a result of the non renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or (c) termination of the service of a workman on the ground of continued ill-health". 14. 14. The decision in Pipraich Suger Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, AIR 1957 S.C 95 is a case where out of adamancy and false belief that the Uttar Pradesh Government would come to the rescue of the Workmen by cancelling the permission granted to the management for sale of the Sugar Mills to a Madras party, the workers declined to help the management in dismantling the Mills out of sentiment to dig their own graves". The workers chose to take the benefit of a direct contract with the pruchaser for dismantling the machinery and the net result was that the management lost a contract on which, as admittedly by the Union, it would have earned a profit of at least Rs. 2 lakhs. The workers having taken the benefit of a direct contract with the purchaser for dismantling the machinery, next turned their attention to the management and on the basis of certain letters asked for distribution among the workers of the 25% labour share of the profits on sale of machinery by the management to the Madras Party. The Management had discharged the workmen by March 21,1951. The Union of workers moved the State Government and it referred the industrial dispute to the Industrial Tribunal. The Tribunal held that the promise made by the Management by its two letters to pay 25% of the profits realised by the sale of the Mills was binding on it and held that a sum of Rs. 45,000/- representing the 25% of the net profits was payable to the workmen. The matter came before the Supreme Court. Supreme Court held that there was no concluded agreement between the parties binding the management to give the workmen a share of the profits o the sale transaction. Then an argument was advanced on behalf of the Workers Union that termination of the services of the Workmen amounted to 'retrenchment' and the award of compensation of Rs. 45,000/-, which was what the management itself had suggested, might be sustained on that footing. In this background, Venkatarama Ayyar, speaking for the court, observed. "But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment". In this background, Venkatarama Ayyar, speaking for the court, observed. "But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment". On behalf of the Management, reliance was placed upon A.K. Housing Factory v. Labour Appellate Tribunal, AIR 1956 Allahabad 498 in which it had been held that ''retrenchment" as defined in Section 2 (oo) did not comprehend discharge on the closure of business. Their Lordships of the Supreme Court in Pipraich Sugar Mill's case (supra) did not consider it necessary to decide the question on the basis of interpretation of the definition of the term "retrenchment" as given in Section 2(oo) of the Act for the reason that the definition of "retrenchment" in Section 2(00) of the Act and Section 25-F therein were inserted in the Act by the Amending Act of 1953 and it had already been held in Burn and Co. Ltd., Calcutta v. Their Workmen, AIR 1957 SC 38 that the Amending Act had no retrospective operation. Their Lordships therefore decided the matter on the basis of the connotation of the word 'retrenchment" in its ordinary acceptance. His Lordship observed: "Retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business". 15. The matter then came for consideration in Hariprasad Shivshanker Shukla and another v. A D. Divelkar and Others (before a Bench of 5 Judges). AIR 1957 S.C. 121 . Definition of the term "retrenchment" was for the first time inserted in the Act by the Industrial Disputes (Amendment) Act, 1953 with effect from October 24, 1953. Chapter V-A containing Section 25-F. which specified conditions precedent to retrenchment of workmen, was inserted in the Act along with the definition of the term by the same Amending Act 43 of 1953. Definition of the term "retrenchment" was for the first time inserted in the Act by the Industrial Disputes (Amendment) Act, 1953 with effect from October 24, 1953. Chapter V-A containing Section 25-F. which specified conditions precedent to retrenchment of workmen, was inserted in the Act along with the definition of the term by the same Amending Act 43 of 1953. After taking into consideration Section 2too) and Section 25-F, S.K. Das J., speaking for the Court, observed: Retrenchment as defined in Section 2(oo) and as used in Section 25-F has no wider meaning than the ordinary accepted connotation of the word; it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the services of all workmen have been terminated by the employer on a real and bona fide closure of business as in the case of Shri Dinesh Mills had or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company........On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry". 16. Consequent upon the above decision of the Supreme Court in Hari Prasad Shiv Shanker Shukla's case (supra), the Parliament amended the Act by the Amending Act 18 of 1957 substituting the present sections 25-FF and 25-FFF for the previous section 25-FF. Amended section 25-FF makes provision for notice or payment of wages in lieu of notice and compensation given to a workman discharged from service on transfer or closing down of an industrial undertaking-as if the workman had been retrenched". After the amendment another Five-Judge Bench of the Supreme Court in Anakappalla Co-operative Agriculture and Industrial Society v. Its workmen, A.I.R. 1963 S.C. 1489 , through Gajendragadkar. J, speaking for the Court observed: "Reading Section 25-FF as a whole it appears that unless the transfer falls under the proviso the employees of the transferred concern are entitled to claim compensation against the transferor and they cannot make any claim for the employment against the transferee of the undertaking ......... J, speaking for the Court observed: "Reading Section 25-FF as a whole it appears that unless the transfer falls under the proviso the employees of the transferred concern are entitled to claim compensation against the transferor and they cannot make any claim for the employment against the transferee of the undertaking ......... As soon as the transfer is effected under Section 25-FF, all employees are entitled to claim compensation, unless, of course, the case of transfer falls under the proviso....... The double benefit in the form of payment of compensation and immediate-re-employment cannot be said to be based on any considerations of fair play or justice ............... Therefore if the transferor is by statute required to pay retrenchment compensation to the workmen. it will be anomalous to suggest that the workmen who received compensation are entitled to claim immediate re-employment in the concern in the hands of the transferee." Reference was made in this decision to Hariprasad Shiv Shankar 's case (supra) and it was observed that, that decision clearly shows that the termination of services from transfer or closure is not retrenchment, and it is on the basis of the correctness of that decision that Section 25-FF as amended has been enacted. On a construction of Section 25-FF itself, it was held that the words "as if" clearly showed the distinction between retrenchment under Section 2 (oo) and termination of service under Section 25-FF. 17. In State Bank of India v. N. Sundramony, (1976)1 LLJ 478 (SC) , a departure came when Krishna layer J. held that the termination of the service of a temporary workman employed for a certain number of days under the contract of employment would constitute "retrenchment". The decision was based on the construction of words for any reason whatsoever" as 'very wide and almost admitting of no exception". By making amendment by the Amending Act 40 of 1984 (brought into force w.e.f 18-8-1984) and inserting clause (bb) to Section 2 (oo) cases covered by Sundermony (1976) 1 LLJ 478 SC). Hindustan Steel Ltd. (1977) 1 LLJ I (SC) and Santosh Gupta (1980) II LLJ 72 (SC) in which the services of the workmen were terminated on the expiry of the term of contract by employment or under stipulation contained in the contract of employment, were taken out of the purview of "retrenchment". 18. Hindustan Steel Ltd. (1977) 1 LLJ I (SC) and Santosh Gupta (1980) II LLJ 72 (SC) in which the services of the workmen were terminated on the expiry of the term of contract by employment or under stipulation contained in the contract of employment, were taken out of the purview of "retrenchment". 18. Case of Santosh Gupta v. State of Patiala (sic State Bank of Patiala) (1980) II LLJ 72 (SC) was not a case of discharge of the employee as surplus. In that case the employee was discharged from the service for not having taken the test required for qualifying confirmation. O. Chinnappa Reddy stated that : "If due weight is given to the words" the termination by the employer of the service of a workman "for any reason whatsoever" and if the expression for any reason whatsoever" is understand to mean what it plain y says, it is difficult to escape the conclusion that the expression ''retrenchment" must include every termination of the service of a workman by an act of employer". 19. In Karnataka State Road Transport Corporation. Banglore v. Sheikh Abdul Khader, (1984) 1 LLJ 110 (115) , Rangnath Misra, J. made the observation : "We are inclined to hold that the stage has come when the view indicated in Sundaramony's case (supra) has been absorbed into the consensus and there is no scope for putting the clock back or for an anti clock-wise operation." 20. In Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, New Delhi, (1981) I LLJ 386 (388) , in a separate judgment, R.S. Pathak, J. as he then was) recorded his dissent by observing mention this only because I should not be taken to have agreed with the interpretation of Section 2(00) rendered in Santosh Gupta v. State Bank of Patiala" . It may be mentioned here that the Supreme Court has admitted some petitions for special leave to appeal and has referred the matter to a larger Bench of five or seven judges for re-consideration of the vexed question regarding interpretation to be given to the term "retrenchment"'as defined in Section 2 (oo) of the Act." 21. Be that all as it may, it is well settled that where 'retrenchment' is found to be in non-compliance of the mandatory conditions of Section 25-F, it is invalid and must ordinarily lead to the reinstatement of the services of the workman. Be that all as it may, it is well settled that where 'retrenchment' is found to be in non-compliance of the mandatory conditions of Section 25-F, it is invalid and must ordinarily lead to the reinstatement of the services of the workman. It is as if' the order has never been, and so it must ordinarily lead to back wages too except in some exceptional circumstances, for instance, where the industry is closed or is in severe financial doldrums or the workman might have secured better or other employment elsewhere, in which the relief of reinstatement might he denied (See State of Bombay v. Hospital Mazdoor Sabha, (1960) I LLJ 251 (SC) Per Gajendragadkar J., Swade samitram Ltd. v. Their Workmen (1960) I LLJ 5 4 (SC) per Gajendragarkar J., National Iron and Steel Co. Ltd. v. State of West Bengal, (1967) II LLJ 23 (SC) Per Mitter J., Workmen of Sutang Tea Estate v. Sutang Tea Estate., (1964) I LLJ 333 (334) Per Gajen Jragadkar J., Hindustan Steel Ltd. v. State of Orissa, (1977) I LLJ I (SC) Per A.C. Gupta J., Avon Services (Production & Agencies P. Ltd. v. Industrial Tribunal Haryana, AIR 1979 SC 170 , Santosh Gupta v. State Bank of Patiala, (1980) If LLJ 72 (SC) ; Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (1981) I LLJ 386 (389) (SC) Per O Chinnapa Reddy, J.; Standard Motor Products of Julia Ltd. v. A Partha Sarthy, (1985) 4 SCC 78 ; Workmen v. American Express International Banking Corporation (1985) 4 SCC 71 ; and Workmen v. Food Corporation of India, (1985) 2 SCC 136 ) . 22. It may next be stated that Section 25-N (1) of the Act corresponds to Section 25-F. But these two provisions are mutually exclusive because the former applies only to the establishment to which chapter V-B applies viz , establishments defined in Section 25-L employing hundred or more workmen. Section 25-F will apply to other establishments or industrial establishments employing less than hundred workmen. Section 25-F will apply to other establishments or industrial establishments employing less than hundred workmen. Therefore, the first right given by the Act to the workmen is requisite notice or compensation for the period of notice and while a notice to the appropriate Government in the prescribed manner in a case governed by Section 25-F, but prior permission of the appropriate Government or that of the specified authority in a case governed by Section 25-N. Section 25-FF entitles the workman satisfying the conditions mentioned therein to notice and compensation in accordance with Section 25-F where the ownership or management of an undertaking is transferred by agreement or by operation of law from the transferor employer. 23. Then there is the doctrine of last come, first go" or' first come, last go" incorporated in Section 25-G which has been made applicable to one industrial establishment where any workman. who is citizen of India, is to be retrenched. The doctrine has to be kept in mind only with respect to different categories of workmen working in an industrial establishment and not to the whole of the industrial establishment. (See Indian Cable Co. Ltd. v. Its Workmen (1962) 1 LLJ 409 (SC) Per Venkatarama Iyer, J and Workmen of Sudder Workshop of Jorehant Tea Co. Ltd. v. The Management, (1980) II LLJ 124 (S.C.) per Krishna Iyer. The statutory obligation prescribed by Section 25-G, restricts the employers common law right to decide which of his employees he should retrench. But the rule is not immutable and for valid and sufficient reasons to he recorded. an employer may depart from it (See Om Oil & Seeds Exchange Ltd. v. Their Workmen, (1966) II LLJ 324 (S.C.) per Shah, J.). Section 25 H of the Act incorporates the rule that the retrenched workman must be given an opportunity of re-employment when the employer has to employ an additional hand (See Cawnpore Tannery Ltd. v. S. Guha (1961) II LLJ 110 (S.C.) , per Gajendragadkar, J). 24. Section 25 H of the Act incorporates the rule that the retrenched workman must be given an opportunity of re-employment when the employer has to employ an additional hand (See Cawnpore Tannery Ltd. v. S. Guha (1961) II LLJ 110 (S.C.) , per Gajendragadkar, J). 24. In pursuance of recommendation No. 119 of the international Labour Organisation, by Section II-A of the Act the Labour Court, Industrial Tribunal or National Tribunal have, on reference of an industrial dispute relating to the discharge or dismissal of a workman by way of punishment, been given power to adjudicate and on satisfaction that the order of discharge or dismissal was not justified, it may, by its award, set-aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, it any as it thinks fit & ...............(illegible) relief including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. Thus holding of a domestic enquiry is essential for inflicting disciplinary punishment of discharge or dismissal on delinquent workman. The power of the management to direct its own internal administration and discipline is liable to be interfered with by industrial adjudication when a dispute arises to see whether the termination of service of a workman by way of punishment is justified and to give appropriate relief. This is another right created by the Act in favour of workman employed in an industry. 25. Section 25-C of the Act entitles a workman to recover lay-off compensation in accordance with that Section Section 25-E carves out an exception to the general provision for payment of lay-off compensation. 26. The right to close an undertaking is implicit in the fundamental right of an employer to carry on his business guaranteed by Article 19(l)(g) of the Constitution and therefore, in relation to an undertaking to which chapter V-A applies the only restriction placed on the employer who close down an undertaking is to give at least sixty days notice before the date on which the intended closure is to become effective to the appropriate Government stating clearly the reasons for the intended closure of the undertaking. Section 25-FFF provides for notice and payment of compensation in accordance with Section 25-F to the workman in the case of closure.26-A. Chapter V-B was inserted in the Act by the Amending Act 32 of 1976 containing Sections 25 K to 25 S, Chapter V-B makes special provisions in relation to an industrial establishment (not being an establishment of a seasonal character or in which work is performed only intermittently) in which not less than one hundred workmen were employed on an average per working day for the preceding twelve months. In relation to such industrial establishments, provision has been made against lay off, retrenchment and closure against the employers without prior permission of the appropriate Government and of some special provision for compensation. 27. In relation to public utility services, prohibition has been imposed on strikes and lock-outs by Section 22 of the Act and there is imposed general prohibition of strikes and lock outs in breach of contract during pendency of conciliation, arbitration and adjudication proceedings and during any period in which a settlement or award is in operation in respect of the matters covered by the settlement or award. 28. Section 33 of the Act makes provision against alteration to the prejudice of the workmen concerned in an industrial dispute and against discharging or punishing any workman concerned with such dispute during pendency of proceedings of conciliation, arbitration or adjudication except in the manner and to the extent provided for therein, Section 33A makes special provision for adjudication of a complaint regarding alleged contravention of Section 33 by the employer, Section 33-C(l) provides for a machinery for recovery of money due to a workman from an employer under a settlement or an award or under the provisions of Chapter-V-A or Chapter V-B as arrears of land revenue. Sub-section (2) of Section 33-C provides for machinery for computation in terms of money to which any workman is entitled to receive from the employer. 29. While Second Schedule to the Act specified matters within the jurisdiction of Labour Court, the third Schedule specifies matters within the jurisdiction of Industrial Tribunals. Fourth Schedule lists conditions of service for change of which notice is to be given by the employer under Section 9-A of the Act. Fifth Schedule lists the items of unfair labour practices on the part of employers and trade unions, employers and employees and trade unions of employees. Fourth Schedule lists conditions of service for change of which notice is to be given by the employer under Section 9-A of the Act. Fifth Schedule lists the items of unfair labour practices on the part of employers and trade unions, employers and employees and trade unions of employees. 30. "Industrial Dispute" is defined in Section 2(k) of the Act as meaning a y 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 or any person. The words "any person" clearly indicate that a dispute or difference regarding reinstatement of a dismissed or discharged employee in an ,industrial dispute". In Western India Match Co. v. Western India Match Co Workers Union (1970)II LLJ 256 (260-61) (S.C.) it was said that after the (46) Dimakuchi case (1958) I LLJ 500, there is no doubt that a dispute relating to any person" becomes a dispute where the person in respect of whom it is raised is one in whose employment, non-employment, terms of employment or conditions of labour, the parties to the dispute have a direct or substantial interest. Section 2-A was inserted in the Act by the Amending 35 of 1965 to introduce a fictional industrial dispute where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman and he raises a dispute or difference with his employer connected with, or arising out of such discharge. dismissal, retrenchment notwithstanding that no other workman nor any Union of workmen is a party to the dispute (see) Chemicals & Fibers India Ltd v. D. G. Bhoir (1975) II LLJ 168 (170) (SC)-per Alginswant, J). 31. How then these disputes and differences 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 and fictional industrial disputes arising between a discharged, dismissed, retrenched or otherwise terminated individual workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination, have to be settled in an industry. 32. The first body is Works Committee. 32. The first body is Works Committee. It is an ineffective body as that body is not authorised to consider real or substantial changes in the conditions of service. This task is limited to smooth away frictions that may arise between the workmen and the management in day to day work. In relation to Public Utility services, strike in breach of contract is sought to be prevented by mandatory conciliation proceedings under Section 12 of the Act. Then there comes a machinery charged with the duty of mediating in and promoting settlement of industrial disputes and Boards of conciliation for promoting the settlement of an industrial dispute. In case of nonpublic utility service concerns discretion is vested in the Conciliation Officer to hold conciliation proceedings or not. A Conciliation Officer is not an adjudicatory authority under the Act nor is he a 'Court'. He is no, invested with the power to adjudicate an industrial dispute. Unlike a Conciliation Oilier under Section 12 (1), a Board under sub-Section (1) of Section 13 acquires jurisdiction to start conciliation proceedings only on a reference made to it by the appropriation Government under Section 10(1). Its jurisdiction is also restricted to induce the parties to come to a fair and amicable settlement of the dispute. It is not adjudicatory. 33. Adjudicatory authorities are three-fold provided by the Act, namely (a) Labour Court (b) Industrial Tribunals and (c) National Tribunals. The Labour Courts and Industrial Tribunals have to function within the limits imposed by the statutes that created them and to act according to its provisions. The Act invests the Tribunals with many 'trappings' of a court, thus depriving them of arbitrary or absolute discretion and power (See (48) Bharat Bank Ltd. (1950) 1 LLJ 92 (932) (S.C. Per Mahajan, J. and J.K. Iron & Steel Co Ltd. v. Iron and Steel Mazdoor Union, (1956) 1 LLJ 227 (S.C. Per Bose. J). Jurisdiction of Labour Court or Industrial Tribunal to adjudicate an industrial dispute arises when such dispute is referred to them by the appropriate Government under section 10 (1) of the Act. J). Jurisdiction of Labour Court or Industrial Tribunal to adjudicate an industrial dispute arises when such dispute is referred to them by the appropriate Government under section 10 (1) of the Act. The scope of adjudication by a Tribunal under the Act is much wider and also in view of the increasing complexity of modern life and interdependence of the various sectors of a planded national economy, it is obviously in the interest of the public that the labour disputes should be peacefully and quickly settled within the framework of the Act rather than resort to methods of direct action which are only to well calculated to disturb the public peace and order and diminish production in the country. Krishna Iyer, J., in Basti Sugar Mills Co. Ltd. v. State of U.P., (1978) II LLJ 412 (419) (S.C.) . in his inimitable style, expressed as follows : "Industrial jurisprudence does not break nice nuances and torture some technicalities to stand in the way of just solutions reached in a rough and ready manner. Grim and grimmy life-situations have no time for the finer manners of elegant jurisprudence". 34. S K. Das said in Rohtas Industries Ltd. v. Brijnandan Pandey, 1956) II LLJ 444 (449) (S.C.) . "A Court of law proceeds on the footing that no power vests in the courts to make contracts for peoples and the parties must make their own contracts. The courts reach their limit of power when they enforce contracts which the parties have made. An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation." Wanchoo, J. struck a note of restraint in New Maneckchok Spinning and Weaving Co. Ltd. v. Textile Labour Association, (1961) 1 LLJ 521 ( 526) when he said:- There is no doubt therefore, that it is open to an industrial court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interests of industrial peace or give awards which may have the effect of extending existing agreement or making it new one. This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This, however, does not mean that an industrial court can do anything and everything when dealing with an industrial dispute. This term is conditioned by the subject matter with which it is dealing and also by the existing industrial law and it would not be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature or by this Court.". 35. Social and economic justice is the ultimate goal of industrial adjudication and the heart and soul of our Constitution. 36. Every award of a Labour Court, Tribunal or National Tribunal has to be published within a period of thirty days from the date of its receipt by the appropriate Government and subject to the provisions of Section 17-A of the Act, the award published is to be final and cannot be called in question by any court in any manner whatsoever. Section 17-A of the Act, inter alia, provides that if the appropriate Government is of opinion in any case where the award has been given by a Labour Court or Tribunal in relation to an industrial dispute to which it is a part, or if the Central Government is of opinion, in any case where the award has been given by a Labour Court or Tribunal in relation to industrial dispute to which it is a part, or if the Central Govt. is of opinion, in any case where the award has been given by a National Tribunal, that it will be inexpedient on public grounds affecting national economy or social justice to gave effect to the whole or any part of the award, the appropriate Government, or as the case may be, the Central Government declare that the award shall not become enforceable on the expiry of the period of thirty days on which it becomes enforceable by virtue of Section 17-A (1). The appropriate Government in such cases or the Central Government as the case may be, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award and 'shall lay the award together with a copy of the order before the appropriate legislature. The appropriate Government in such cases or the Central Government as the case may be, within ninety days from the date of publication of the award under Section 17, make an order rejecting or modifying the award and 'shall lay the award together with a copy of the order before the appropriate legislature. A modified award becomes enforceable on the expiry of 15 days from the date on which it is laid before the Legislature of a State or the Parliament, as the case may be. In case the Government rejects the award in its entirety the effect of such rejection will be that the award will be a nullity. An arbitration award that has become enforceable shall be binding on the parties to the industrial d dispute. That is how an industrial dispute as defined in Section 2 (k) and as treated to be an industrial dispute under Section 2-A is mediated and adjudicated. 37. In this background of the legislation cited as the Industrial Disputes Act, 1947, we have to examine the question of the jurisdiction of the High Court under Article 226 of the Constitution in matters relating to various rights, liabilities and obligations accruing and arising by or under the said Act. As back as in that year 1859, Willes, J. in Wolverhampton New Waterworks Co v. Hawkesford, (1859)6 C8 (NS) 336 at p. 356 , described three classes of cases thus: "One is, where there was a liability existing at common law, and that liability is affirmed at by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law. there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has election to pure either that or the statutory remedy. The second class of case is here the statute gives the right to sue merely, but provides, no particular form of remedy, there. the party can only proceed by action at common law. The second class of case is here the statute gives the right to sue merely, but provides, no particular form of remedy, there. the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it .............The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." Judgment of Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford (supra) the approved by the House of Lords in Neville v. London Express Newspaper Limited, (1919) AC 368. 38. I would now straightway come to the decision of their Lordship of the Supreme Court in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and others, AIR 1975 S.C. 2238 where, in the two appeals tiled by special leave, the important question of law was as to the jurisdiction of the civil court to entertain the suits of the kinds filed in the two cases. The Premier Automobiles Ltd. carried on a big industry and owned several plants. One such plant was situated at Kurla, Bombay. In this plant there was a department known as Motor Production Department. The dispute related to the workmen of that department. There were three Groups of workmen in the department. One group was represented by Engineering Mazdoor Sabha which was once a recognised Trade Union of the Workmen of the Company. Plaintiff who instituted the civil suit were members of this Union. Later on this Union was derecognised and another registered Trade Union known as Association of Engineering Works was recognised by the Company. Besides the members of these two Unions, there were certain workmen who were members of neither Union. 39. An agreement called incentive scheme of extra payments for extra production of Units was entered into on December 31, 1966 between the former Union with the Company and at that time there were 425 workmen in the Motor Production Department. According to the slabs filed in the agreement, the workmen could get extra payment upto 91% if they reached the production target of 1250 units per month as against the basic production of 650 units. According to the slabs filed in the agreement, the workmen could get extra payment upto 91% if they reached the production target of 1250 units per month as against the basic production of 650 units. However, when another Union i.e. Association Union was recognised, 27 more persons, who were previously learners, were taken in as regular temporary employees in the Motor Production Department by the company and thus that strength of the workmen in that Department increased to 452. Another agreement, as entered into between the Association Union and the appellant on January 9, 1971 withers by changes were made in the norms of incentive scheme by increasing 75 unity at every stage of the slab. The addition of 27 of learners to the strength of the Department also adversely affected the incentive extra payment's amount. The two workmen of the former recognised union i.e. of Engineering Mazdoor Sabha tiled a representative suit in the Civil Court wherein they attacked the second agreement dated January 9, 1971 as having been arrived at without following the mandatory requirement of Section 9-A of the Act. The first relief claimed in the suit was that the settlement dated January 9, 1971 was not binding on the plaintiffs and other concerned daily and monthly rated workmen of the Motor Production Department who were not members of the Association Union. The second relief was for permanent injunction to restrain the company from enforcing or implementing this later agreement dated January, 9, 1971. The other suit was filed in this background that during the pendency of an industrial dispute in IT No.139 of 1965. 46 workmen of the company were sought to be dismissed and an application for according approval to the dismissal was made under Section 33(2) of the Act. A settlement was reached between the Engineering Mazdoor Sabha Union and the company and it was agreed to refer their cases to a Board of Arbitrators consisting of 3 persons. However, after more than three years the company served a notice on the plaintiff Union seeking to terminate the settlement. Thereupon the Union and two of their members instituted suit challenging the action of the company and praying injunction to restrain the company from committing a breach of the above settlement. 40. However, after more than three years the company served a notice on the plaintiff Union seeking to terminate the settlement. Thereupon the Union and two of their members instituted suit challenging the action of the company and praying injunction to restrain the company from committing a breach of the above settlement. 40. The matter came before their Lordships of the Supreme Court and the only point which fell for determination was whether on the facts and in the circumstances of the cases, the Civil Court had jurisdiction to entertain these suits. His Lordship Untwalia, J. speaking for the court, after referring to various English decisions including the decision in Wolverhampton New Waterworks Co. v. Hawkesford (supra), summed up the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute thus : (1) 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. (2) 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. (3) 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. (4) 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 33C or the raising of an industrial dispute, as the case may be". His Lordship proceeded to state that the plaintiffs wanted to prevent the threatened breach of earlier incentive scheme agreement. That type of collective agreement was recognised and created a right in favour of the members of the Sabha Union under Section 18 (1) of the Act and not under the general law of contract. The representative suit was, therefore clearly a suit in relation to the exercise of right created under the Industrial Disputes Act. That type of collective agreement was recognised and created a right in favour of the members of the Sabha Union under Section 18 (1) of the Act and not under the general law of contract. The representative suit was, therefore clearly a suit in relation to the exercise of right created under the Industrial Disputes Act. As regards the other suit, his Lordship stated that the manner of voluntary reference of industrial dispute to arbitration is provided in Section 10-A of the Act. The company had terminated the agreement under Section 19 (2) of the Act. The plaintiffs sought to challenge the termination of the agreement in the suit. The suit was in relation to the enforcement of a right created under the Act and the remedy in civil court was barred. 41. It was contended before the Supreme Court on behalf of respondent Nos. 1 and 2 that the remedy provided under the Act was no remedy in the eye of law and it was a misnomer. It was pointed out that reference to the Labour Court or the industrial Tribunal for adjudication of the industrial dispute was dependent upon the exercise of the power of the appropriate Government under Section 10(1) of the Act and it did not confer any right on the suitor. His Lordship rejecting the contention observed : "It is no doubt true that the remedy provided under the Act under Section 33C, on the facts and in the circumstances of the case involving disputes in relation to two settlements arrived at between the management and the workmen was not the appropriate remedy. It is also true that it was not open to the workmen concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency can refuse to make a reference. If the refusal is not sustainable in law, appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer ..........The remedy suffers from some handicap but it is well compensate on the making of the reference by the wide powers of the Labour Court or Tribunal. But it does not follow from all this that the remedy provided under the Act is a misnomer ..........The remedy suffers from some handicap but it is well compensate on the making of the reference by the wide powers of the Labour Court or Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. The possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard ........... ....In India under Section 9 of the Code of Civil Procedure , the courts have subject to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There are no different systems of civil courts for enforcement of different kind of rights. In the instant case taking cognisance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly barred. But if it relates to the enforcement of a right created under the Act. as stated above, by necessary intendment, the jurisdiction of the civil court is barred." 42. It is quite clear that the question for consideration before their Lordships of the Supreme Court in Premier Automobile's case (Supra) was regarding the jurisdiction of the civil court in relation to the right or an obligation created under the Industrial Disputes Act for which the remedy was provided in that Act itself and in answer to that question, it was laid down that the jurisdiction of the civil court was. by necessary implication, barred. The question before the Supreme Court was not with respect to the jurisdiction of the High Court under Article 226 of the Constitution. 43. by necessary implication, barred. The question before the Supreme Court was not with respect to the jurisdiction of the High Court under Article 226 of the Constitution. 43. I would make reference next to the decision of their Lordship, of the Supreme Court in Basant Kumar Sarkar v. The Eagle Rolling Mills Ltd., AIR 1964 S.C. 1260 . Facts of that case were that respondent No. 1 was under the Management of M/s Bird and Co. Ltd. through a General Manager and the appellants were their workmen. As such workmen, the appellants were getting satisfactory medical benefits of a very high order free of any charge. Respondent No. 1 maintained a well furnished hospital with provision for 60 permanent beds for the workmen, their families and their dependants. The main grievance made by the appellant was that as a result of Section 1 (3) of the Employees' State Insurance Act, 1948, the appellants had now to be content with medical benefits of a less satisfactory nature. That was why they challenged the validity of Section 1(3) of the said Act and contested the propriety and the legality of a Notification issued on August 22, 1960 by the respondent No. 3 under Section 1(3) of the Employees' State insurance Act, 1948 appointing August 28, 1960 as the date on which some provisions of the Act should come into force in certain areas of the State of Bihar. In pursuance of this notification the Chief of Executive Officer of, respondent No. 1 informed the appellant on August 25, 1960 that the medical benefits including indoor and outdoor treatment upto the extent admissible under the said Act would cease to be provided to insurable persons from the appointed day and not by the arrangements which had been made earlier by respondent No. 1 in that behalf. That was the genesis of the writ petitions and the nature of the dispute between the parties. Patna High Court had rejected the plea and the writ petitions were dismissed. The appellant came before Supreme Court. The first paint raised before the Supreme Court in behalf of the appellants was that Section 1(3) of the aforesaid Act suffers from excessive delegation and was, therefore, invalid. His Lordship Gajendragadkar, J., speaking for the Court, held that Section 1(3) was really not an illustration of delegated legislation at all. it was what could be properly described as conditional legislation. His Lordship Gajendragadkar, J., speaking for the Court, held that Section 1(3) was really not an illustration of delegated legislation at all. it was what could be properly described as conditional legislation. The conditions having been fulfilled the legislation was now absolute. It was further held that assuming that there was an clement of a delegation, the legislature had evolved a scheme of socioeconomic welfare, made elaborate provisions in respect of it and left it to the Government to decide when, how and in what manner the scheme should be introduced. That could not amount to excessive delegation. 44. It may then be mentioned that it was further urged on behalf of the appellants that on account of the above notification, the Chief Executive Officer of respondent No. 1 Company had issued notices giving effect to the notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument urged was that the respondent No. 1, Company were not entitled to curtail the benefits under the scheme. The High Court had held that the question as to whether the notices and circulars issued by the respondent No. 1 Company were invalid, could not be considered under Article 226 of the Contrition and that is matter which can be appropriately raised in the form of a dispute by the appellants under Section 10 of the Industrial Disputes Act. With regard to this his Lordship Gagendragadkar, C.J., observed : "It is true that the powers conferred on the High Court under Article 226 are wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which they seek to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which was available to the appellants to ventilate their grievances in respect of the said notice and circulars is to take recourse to section 10 of the industrial Disputes Act or seek relief, if permissible, under Sections 74 and 75 of the Act." 45. It may pertinently be mentioned that in Basant Kumar Sarkar's case (supra), it was recognised that the powers under Article 226 were wide. Again, it was not suggested by the counsel for the appellants before their Lordships that even those power could take in their sweep industrial dispute of the kind which the appellants sought to raise. From the very nature of the controversy, it is quite clear that the question whether the medical benefits which the appellants were getting before the notification was qualitatively or quantitatively higher than the benefits which were to be given under the Scheme under the Act which had been brought into force under the Act involved questions of fast to be enquired into. The Patna High Court had decided that the question regarding validity of the notices and circulars could not be considered under Article 226 of the Constitution and that was a matter which could be appropriately raised by the appellants under Section 10 of the Industrial Disputes Act. The decision in Basant Kumar Sarkar's case (supra) is an authority for the proposition that if the right which is sought to be enforced is alright created under the Industrial Disputes Act,then there is remedy the for its enforcement either under Section 10 or under Section 33 or 33-C of the Industrial Disputes Act and that High Court would not normally interfere under Article 226 of the Constitution. 46. Mr. M.I. Khan, learned Additional Advocate General, who intervened in the matter. referred to the decision of their Lordships of the Supreme Court in Nirmla Textile Finishing Mills Ltd. v. The 2nd Punjab Tribunal and Others, AIR 1957 S.C. 329 in which the constitutional acidity of Section 10(1) of' the Act was upheld. There were three appeals before the Supreme Court by appellants who were engaged in the manufacture and production of textiles. There were three appeals before the Supreme Court by appellants who were engaged in the manufacture and production of textiles. It was contended on behalf of the appellants that the provisions of the Act were violation of Article 14 and Article 19(l)(f) of the Constitution in as much as it was open to the appropriate Government to differentiate between the parties similarly plead and circumscribed in every respect and in the absence of rules made in this behalf the appropriate Government had unregulated and arbitrary powers to discriminate between the parties, that there was no rational basis of classification providing different treatment for different parties and it is open to the appropriate Government in one case to refer the industrial dispute to a Court of Enquiry. and in another case not to refer it to an Industrial Tribunal and that the procedures before the Court of Enquiry and before the Industrial Tribunals are different. Reports of the Courts of Enquiry were quite innocuous whereas the award of the Industrial Tribunals were binding on the parties. Bhagwati, J. speaking for the Court, rejected the argument and observed : "The appropriate Government is at liberty as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation. No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertaking require to be treated having regard to the situation prevailing in the same .....................These and analogous provisions sufficiently indicate the purpose and scope of the Act as also the various industrial disputes which may arise between the employers and their workmen which may have to he referred for settlement to the various authorities under the Act. The achievement of one or the other of the objects in view by such reference to the Boards of conciliation or Court of Enquiry or Industrial Tribunals must guide and control the exercise of the discretion in that behalf by the appropriate Government and there is no scope, therefore, for the argument that the appropriate Government would be in a position to discriminate between one party and the other ................ There is no warrant for the suggestion that such discretion will be exercised by the appropriate Government arbitrarily capriciously or so as to prejudice the interests of any of the parties concerned. The base idea underlying all the provisions of the Act is settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited. This is the end which has got to be kept in view by the appropriate Government when exercising the discretion which is vested in it in the matter of making the reference to one or the other of the authorities under Act and also in the matter of carrying out the various provisions contained in the other Sections of the Act . ................We are of opinion that there is no substance in the contention urged before us that the relevant provisions of the Act and in particular Section 10 thereof are unconstitutional and void as infringing the fundamental rights guaranteed under Article 14 and Article 19(1) (f) and (g) of the Constitution". 47. Two aspects have to be noted in connection with the decision in Niemla Textile Finishing Mills Ltd., case (supra). Firstly, that it were the industrial undertakings in the private sectors which had challenged the vires of Section 10(1) of the Act. Secondly, this was not a case in which the maintainability of writ petition under Article 226 of the Constitution was specifically in issue. 48. I would next deal with the scope and nature of writ jurisdiction of the High Court under Article 226 of the Constitution. Article 226 reads as under: "Notwithstanding anything in Article 32 every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part-III and for any other purpose". 49. Writ is a written order or warrant. By the thirteenth century, there were three main recognised kinds of writs; charters, normally for grants of land or liberties in perpetuity, letters patent for Commissions to royal Officials and grants of limited duration, and letters close, closed and scaled, conveying orders or information. 49. Writ is a written order or warrant. By the thirteenth century, there were three main recognised kinds of writs; charters, normally for grants of land or liberties in perpetuity, letters patent for Commissions to royal Officials and grants of limited duration, and letters close, closed and scaled, conveying orders or information. The Anglo-Norman writs were substantially Anglo-Saxon writs turned into Latin and. like them. in many cases, contained executive orders. The Norman Kings began to employ, writs for judicial purposes, and standard forms were developed to meet the normal cases. The number grew rapidly in the thirteenth century. The most important were the original writs, necessary to commence actions in the courts, writs of entry, for the recovery of land by a person who had been dispossessed. and writs for assistance, for the transference of property. Other important writs were those of habeas corpus, mandamus, certiorari and prohibition known as the prerogative writs because issued by virtue of the royal prerogative at the discretion of the Court on a prima facie case being made out. The writ of habeas corpus remains, but the others have been altered to prerogative orders. Even in the thirteenth century, the power to issue new writs was checked and the number of writs obtainable became limited. 50. The ancient writ of certiorari in England is an original writ which may issue out of a superior court requiring that the record of the proceedings in some case or matter pending before an inferior court should be transmitted into the Superior court to be there dealt with. The writ is so named because, in its original Latin form it required that the King should be certified" of the proceedings to be investigated and the object is to secure by the exercise of the authority by a superior court, that the jurisdiction of the inferior court should be properly exercised. This writ does not issue to correct purely executive costs, but, on the other hand, its application is not narrowly limited to "inferior 'courts" in the strictest sense. Brosdly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authorities which the Sovereign's Superior Courts, and in particular the Court of King's Bench. Brosdly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authorities which the Sovereign's Superior Courts, and in particular the Court of King's Bench. posses; and exercises over inferior jurisdiction (See Ryots of Garabandho and other villages v. Zamindar of Parlakimedi and another, AIR 1943 P.C 1647). In connection with the issue of writ of certiorari and on the matter whether the order is a quasi judicial or an administrative or ministerial order May C. J., in Regina (John M' Evoy) v. V. Dubbin Corporation, (1972)2 L.R. Ir. 371 at p. 376 , observed : "It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection, the term "judicial" does not necessarily mean acts of a judge or legal tribunal sitting for the determination of law but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the right of others." 51. This definition was approved by Lord Atkinsan in Frame United Breweries Co.. Ltd. v. Bath Justices (1926) A.C. 586 at P.602 , as the best definition of a judicial act as distinguished from an administrative act. 52. In the King v. The Electric Commissioners (1924) IKB 171 , Atkin L.J (as the then was) laid down the following test ; "Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act Judicially, act in excess of their legal authority they are subject, to the controlling jurisdiction of the King's Bench Division exercised in these "writs". 53. 53. A slightly more detailed examination of the distinction is found in the King v. Landon County Council, (1931)2 K.B.215 at P.233 where Sorutton L J., observed:- "It is not necessary that it should be a court in the sense in which this court is a court, it is enough if it is exercising, after having evidence judicial functions in the sense that it has to decide on evidence between a proposal and An opposition, and it is not necessary to be strictly a Court, if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to a writ of certiorari." 54. Slessor, LJ. in his judgment at p. 243 separated the four conditions laid down by Atkin, L.J. under which a rule for certiorari may issue. They are whenever any body of persons (1) having legal authority (2) to determine questions affecting rights of subjects and (3) having the duty to act judicially (4) act in excess of their legal authority a writ of certiorari may issue. 55. In Latin, Mandamus "We command". It was formally a prerogative writ, but now is an order which may be granted by a Divisional Court of the Queen's Bench Division of the High Court in England, in the from of a command from the Court to any person, Corporation, or inferior tribunal requiring him or it to do something which is a public duty and pertains to his or its office to do. It issues in all cases where there is a specific legal right to have a function exercised and no specific legal remedy for enforcing that right, and also in cases where there is an alternative legal remedy but one less convenient and effectual. The grant of the order is, in general, in the discretion of the Court. Like the orders of prohibition and certiorari, the chief use of the order is as a means of controlling inferior Courts and tribunals which have authority to determine issues and a duty to act judicially. Thus, it lies where a tribunal has declined to exercise jurisdiction or has been influenced by extraneous considerations, but not where the tribunal has acted honestly, though wrongly, on the facts or the law. It is not an appeal against the merits of a decision. Thus, it lies where a tribunal has declined to exercise jurisdiction or has been influenced by extraneous considerations, but not where the tribunal has acted honestly, though wrongly, on the facts or the law. It is not an appeal against the merits of a decision. It lies also, to compel the,restoration of a person to an office of a public nature from which he has been wrongfully evicted, or to compel his admission thereto, to compel the delivery of public books and papers, to compel the performance of statutory duties, to compel public officials and bodies to carry out their duties, and to command inferior Courts and tribunals to exercise their jurisdiction. As a rule, the court will not make an order where there is an alternative legal remedy, or when it would be futile in its result. 56. Prohibition is an order which may be granted forbidding an inferior court or tribunal to commence or continue proceedings in absence or excess of jurisdiction or in contravention of law. 57. Patanjali Sastri C.J., in Election Commission, India v. Saka Venkata Rao, AIR 1953 S.C. 210 may be quoted : Turning now to the question as to the powers of a High Court under Article 226 .......................the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also quick and inexpensive remedy for the enforcement of such right and, finding that the prerogative writs which the Courts in England had developed and need whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State sphere new and, will powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions etc. "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon this exercise. In the first place, the powers to be exercised throughout the countries in relation to which it exercises jurisdiction" that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. But wide as were the powers thus conferred, a two-fold limitation was placed upon this exercise. In the first place, the powers to be exercised throughout the countries in relation to which it exercises jurisdiction" that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to when the High Court is empowered to issue such writs must be within these territories" which clearly implies that they must be amenable to its jurisdiction either by residence or location within these territories". 58. In Union of India v. T.R. Varma, AIR 1957 S.C. 862 , respondent had filed a writ petition to quash the order of his dismissal for the reason that there was no proper enquiry. Venkatarama Ayar, J, observed : "At the very outset, we have to observe that a writ petition under Article 226 is not the appropriate proceeding for adjudication of disputes like the present under the law, a person whose services have been wrongly terminated is entitled to institute an action to vindicate his rights, and in such an action, the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition. It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ, but as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 S.C. 163 , the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs........ And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 unless there are good grounds therefor. None such appears in the present case. On the other hand, the point for determination in this writ petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the charge. None such appears in the present case. On the other hand, the point for determination in this writ petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the charge. That is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence. It is not the practice of the Courts to decide questions of that character in a writ petition, and it would have been a proper exercise of discretion in the present case if the learned Judge had referred the respondent to a suit". 59. In Dharangadhara Chemical Works Ltd v. State of Saurashtra and Others, AIR 1957 S. C. 264 , it was held that the High Court exercising its jurisdiction under Articles 226 and 227 of the Constitution, was not competent to set aside the finding of fact recorded by the Industrial Tribunal that the status of the agarias was that of workmen and not independent contractors. It was equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Article 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence. 60. With respect to certiorari", S. R. Das C. J., observed in State of U.P. v. Mohammad Nooh, AIR 1958 S.C. 86 that : "It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy ....................But this requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instance are numerous where a writ of certiorari has been issued inspite of the fact that the aggrieved party had other adequate legal remedies". To quote his Lordship Rajagopala Ayyangar, J., speaking for the majority of 4 : 1, in A. v. Venkateswaran v. Ramchand Sobh Raj Wadhwani and another, AIR 1961 S. C. 1506 : "We see considerable force in the argument of the learned Solicitor General. To quote his Lordship Rajagopala Ayyangar, J., speaking for the majority of 4 : 1, in A. v. Venkateswaran v. Ramchand Sobh Raj Wadhwani and another, AIR 1961 S. C. 1506 : "We see considerable force in the argument of the learned Solicitor General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should before he approaches the court have exhausted other remedies open to him under the taw is not one which bars the jurisdiction of the High Court to entertain that petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion". 61. This view was reiterated by Gajendragadkar, C.J., in the British India Steam Navigation Co. Ltd v. Jasjit Singh, AIR 1964 S.C. 1451 . In Babu Ram Prakash Chandra Maheshwari v. Antrim Zila Parishad Muzaffarnagar; AIR 1969 S.C. 556 , his Lordship Ramaswamy, J. speaking for the court, very lucidly laid down the position in law Rule : "It is a well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But as observed by this Court in Rashid Ahmed v. Municipal Board, K.C. Rana, (AIR 1950 S. C. 163) , the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion before a writ is granted is a rule of self imposed limitation, a rule of policy and discretion rather than a rule of law and the court may, therefore in exceptional cases issue a writ, such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted.... .................... There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. .................... There are at least two well recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, it is well settled that where proceedings are taken before a Tribunal under a provision of law. which is ultravirus, it is open to a party aggrieved thereby to move the High Court tinder Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent. without his being obliged to wait until those proceedings run their full course. In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice". 62. Dealing with order of 'mandamus' in Halsbury's Laws of England (Fourth 1973 Edition) Volume 1, page 135 at Para 126, it has been stated : "The court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus. when there is an alternative specific remedy at law which is not less convenient, beneficial and effective." 63. Two questions crop up in this back ground. Firstly, whether there is at all an alternative specific remedy available to the petitioner at law. Secondly. if such remedy is available, whether it is not less convenient, beneficial and effective (which we call adequate and efficacious) than the remedy by way of writ petition under Article 226 of the Constitution. On both these points, there has been a sharp conflict of judicial opinion amongst different High Courts in India including this High Court. Let me highlight this cleavage of judicial opinion. 64. A Division Bench of Patna High Court in Soma Kumar Chatterjee v. The District Signal Tele-Communication Engineer, (1970) Lab. I.C. 629 (634) (Pat.) held that even without raising an industrial dispute the workmen could come before High Court for issue of appropriate writ for quashing the order of retrenchment and for their reinstatement. Another Division Bench of same High Court in Mahabir v. D.K. Mittal. Dy. I.C. 629 (634) (Pat.) held that even without raising an industrial dispute the workmen could come before High Court for issue of appropriate writ for quashing the order of retrenchment and for their reinstatement. Another Division Bench of same High Court in Mahabir v. D.K. Mittal. Dy. Chief Mechanical Engineer, N.E. Railway, (1979) II LLJ 366 (368) entertained a writ petition of a workman on the ground of violation of breach of Section 25-F of the Industrial Disputes Act in retrenching him, with the observation that `adjudication" before the industrial Court will not amount to an alternative remedy so as to bar the maintainability of the writ petition because the question whether the dispute should be referred for adjudication or not is a matter in the discretion of the Government. It was observed:- "Alternative remedy means a remedy which is available to the petitioner concerned and which is not dependent on the opinion of the other authority. In case of industrial dispute it is upto the appropriate Government to refer or not to refer it for adjudication to an Industrial Court. Therefore, remedy of adjudication before Industrial Court does not amount to an alternative remedy so as to bar maintainability of writ petition". 65. Similarly, a Division Bench of Kerala High Court in Assistant Personnel Officer, Southern Railway, Olavakkot v. K.T. Antony, (1978) II LLJ 254 , held that reference to Tribunal can only be at the instance of the Government on certain conditions mentioned in Section 10 of the Act and it cannot be regarded as an alternative remedy. (See also Divisional Superintendent, Southern Railway, Madurai v. Sasidharan, (1978) Lab. I.C. 1042 (1045) and (73) John Fernandez v. Executive Engineering. P.H. Division Alleppey (1979) Lab. I.C. 255 (258) per Khalid J ). Haryana, Delhi, Calcutta and Orissa High Courts had also held the same view (Sec Rajbir Singh v. State of Haryana, (1983) 1 Serv. L.R. 38 , Malkhan Singh v. Union of India, 1981 Lab. I.C. 1633 (Delhi) , Tapan Komar Jain v. General Manager, Calcutta Telephones, (1981) I Serv. L.R. 292 (Calcutta) , Duryodhan Naik v. Union of India, 1969 Lab. I.C. 1282 (Orissa). 66. L.R. 38 , Malkhan Singh v. Union of India, 1981 Lab. I.C. 1633 (Delhi) , Tapan Komar Jain v. General Manager, Calcutta Telephones, (1981) I Serv. L.R. 292 (Calcutta) , Duryodhan Naik v. Union of India, 1969 Lab. I.C. 1282 (Orissa). 66. On the other hand, Division Benches of Allahabad, Orissa and Assam and Nagaland High Courts and a Single Judge of Madras High Court took a contrary view and held that the remedies provided in the Industrial Disputes Act were more beneficial and convenient to the parties accrued in as much as they entitled even to lead evidence in support of their respective cases before the Industrial Tribunals. Hence, the Writ Petition under Article 226 of the Constitution in such cases should not be entertained. 67. Let me next advert to the decisions of this Court. In Mukesh Chandra Sharma v. State of Rajasthan, 1974 RLW 338 an objection with regard to the non-availing of alternative remedy under the Industrial Dispute Act was raised Relying upon the decision in N. Sundarmony v. The State Bank of India Kuzhithur (1973) 2 LLJ 551 , in which it was held that where the breach of the provisions of Section 25-F of the Act is found the impugned order was void in law, writ petition was held to be proper remedy. In another decision in the case of Om prakash v. Registrar, Co-operative Societies. 1980 (Vol. 40) Indian Factories and Labour Report 38, S.C. Agrawal, J. observed : 'In so far as the remedy of reference under section 10 of the Industrial Dispute Act is concerned, it may be observed that a reference can be made only by the State Government in its discretion and the petitioners cannot claim as of right that the dispute with regard to the validity of their retrenchment under Order dated 7th February, 1976 should be referred for adjudication under Section 10 of Industrial Disputes Act. The remedy of a reference cannot, therefore, be regarded as an alternative remedy which may operate as a bar to the maintainability of the Writ Petitions." 68. The remedy of a reference cannot, therefore, be regarded as an alternative remedy which may operate as a bar to the maintainability of the Writ Petitions." 68. The other decisions of the court holding the same view are in Tejbhan Singh v. State of Rajasthan and Others, 1982 RLR 361 (DB) ; Nagaur Central Co-operative Bank Ltd v. Kesaram and Others, 1979 WLN 408 (DB) , Union of India v. Soloman Smith (D.B. Special Appeal No. 285 of 1980 decided on November 21, 1980) , Kanhaiya Lal v. Union of India and Anr. (1982)1 All India Service Law Journal (42 (S.B.) , S.N. Singh v. Raj Atomic Power Project and Anr. (S.B.) 1982 RLR 701 and Kisaan Kumar v. Union of India, 1982 RLR 848 . 69. However, since then three Full Bench decisions have been delivered, namely that of this Court. Punjab & Haryana High Court and Patna High Court and they may be noticed. Full Bench decision of this Court in the case of Bhanwar Lal etc. v. Rajasthan State Road Transport Corporation & Anr., and is reported in 1984 RLR 619 . Facts in Bhanwar Lal 's case. in brief were that Rajasthan State Road Transport Corporation had terminated the employment of 15 permanent and 25 temporary of their employees either under clause 13 of the their Standing Orders or under Section 25 F of the Act and the 39 employees filed writ petitions before this Court under Article 226 of the Constitution challenging the termination of their employment. Out of these 29 writ petitions. 22 petitions were heard by Lodha J. and he referred eleven questions formulated by him to a larger Bench. Some of the questions formulated by him were as under: (5) Whether clause 13 of the Standing Orders is ultra-virus ? (6) Whether this Court can entertain writ petition under Article 226 of the Constitution against termination of Service, even though a proper inquiry and adjudication can be by way of reference under Section 10 of the Act, before the Labour Court or the Industrial Tribunal ? 70. The matter was placed before a Full Bench consisting of Lodha, Kasliwal and Sidhu JJ. Each of the judges gave their separate judgments. 70. The matter was placed before a Full Bench consisting of Lodha, Kasliwal and Sidhu JJ. Each of the judges gave their separate judgments. Lodha J., it appears from paras from 144 to 148, 167 to 171 of the reported judgment was observed by the decision of their Lordships of the Supreme Court in Premier Automobiles Ltd. v. Kamlakar Shantarm Wadke, ( AIR 1975 S.C. 2238 Supra) . It was however very well recognised that the point for determination before the Supreme Court in Premier Automobile's case was whether in the facts and in the circumstances of the case the civil Court had jurisdiction to entertain the suits of the kind filed in two cases. The grievance of the members of the Sabha Union was that giving of employment to 27 new learner-workmen in the Motor Production Department by the management adversely affected the incentive payment payable to the Workmen in that Department and they challenged the subsequent Settlement dated January 9, 1971 arrived at between the management and the rival Union known as Association of Engineering Workers. In the second suit, during the pendency of arbitration referred in pursuance of a Settlement dated March 14, 1968, the company had served a notice on the Union in writing seeking to terminate the settlement in accordance with Section 19(2) of the Act. Therefore the Union and two of their members instituted civil suit challenging the action of the company on several grounds and prayed for a decree of injunction. In both the suits, preliminary question to be decided was whether the civil courts had jurisdiction to try the two suits of above nature. In relation to the first of the above mentioned two suits, his Lordship Untwalia, J, speaking for the Bench, observed:- "Such a collective agreement is recognised and creates a right in favour of the members of the Union only under Section 18(1) of the Act and not under the general law of contract...................In so far as the suit was filed in a representative capacity ................... it was clearly a suit in relation to the exercise of right created under the Act. it was clearly a suit in relation to the exercise of right created under the Act. ..................The source of their right was the agreement entered from time to time under Section 10(1) of the Act culminating in the agreement dated 31st December 1966 ................The better and more reasonable view, therefore to take is that all workmen, represented by plaintiff sought an order of injunction in the Civil Court to prevent an injury ........... in relation their rights under the Act. Hence a suit for a decree for permanent injunction was not maintainable in the civil court as it had no jurisdiction to grant the relief or even a temporary relief". With regard to the second suit, his Lordship observed: "The manner of voluntary reference of industrial disputes to arbitration is provided in Section 10A of the Act .............The company had terminated the agreement dated the 14th March, 1968 under Section 19(2) of the Act..... ....It (The Union) sought to challenge it by the institution of a suit. it is clear that the suit was in relation to the enforcement of a right created under he Act. The remedy in Civil Court was barred." His Lordship further stated:- "In the instant case taking cognizance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly barred. But if it relates to the enforcement of a right created under the Act. as stated above, by necessary intendment, the jurisdiction of the civil courts is barred ...............In India under Section 9 of the Code, the Courts have subject to certain restrictions, jurisdiction to try suits of Civil nature excepting suits of which their cognizance is either expressly or impliedly barred." 71. The ratio desidendi of the decision is that "for the enforcement of a right or an obligation under the Act, the remedy provided uno flatu in it is the exclusive remedy Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy formed by the Act." In this light and background, four principles were laid down by their Lordships in para 23 of the reported judgment and in relation to the cases before their Lordships principles (3) and (4) applied and not principles (1) and (2). How the Law laid down in Premier Automobiles case can at all be stretched to cover the writ jurisdiction of the High Court under Article 226 of the Constitution is somewhat beyond comprehension? 72. Writ jurisdiction of the High Court is original jurisdiction but of an extraordinary character. It was observed by Shlih J in S.A.L Narayan Row and Anr. v. Ishwarlal, AIR 1965 S.C. 1818 at p. 1822 : "By a petition for a writ under Article 226 of the Constitution extra- ordinary jurisdiction of the High Court to issue high prerogative writs granting relief in special cases to persons aggrieved by the exercise of authority-statutory or otherwise-by public officers or authorities is invoked. This jurisdiction is undoubtedly special and exclusive." 73. Varied types of writs have their own inherent restrictions and limitations-some by virtue of the nature of the writ and other self-imposed keeping in view the extraordinary character of the jurisdiction. Exercise of the original and extraordinary jurisdiction being discretionary, one of the rule is that the party approaching the court should exhaust first the existing alternative remedies open to him under a law. This rule does not bar or restrict the High Court's jurisdiction to entertain the writ like that of a civil Court whose jurisdiction is affected by an express or implied bar imposed upon it. This is one aspect of the matter. 74. It may be mentioned that G.M. Lodha, I had himself in S. N. Singh v. Raj Atomic Power Project and Another, 1982 RLR 701 held that a writ petition under Article 226 could lie despite the remedy provided by or under the Act and so also in Division Bench decision in Union of India v. Soloman Smith (D. B. Civil Special Appeal No. 285 of 1980 decided on November 21, 1980 ). In Bhanwar Lal's case (Supra). In Bhanwar Lal's case (Supra). G.M. Lodha, J in para 170 of the reported judgment, 1984 RLR 619 at page 670 laid down : "I would therefore like to modify my views as expressed in Soloman Smith's case (supra) and further to modify the view taken by the this Court so far in Single Bench and the Division Bench by laying down the following principles : (i) If the right which is sought to be enforced is right created under the Industrial Disputes Act, such as Chapter V-A, then the remedy for its enforcement is either under Section 33-C or raising of an industrial dispute, as the case may be; (ii) If the industrial dispute arises under the Industrial Disputes Act then normally, the remedy available to the suitor is to get an adjudication under the Act; (iii) Further, in above two categories of cases, if the Government refuses to make a reference either by not passing an order in a reasonable time, normally two months in individual cases and fifteen days notice in cases involving several employees together, or refuses to refer by an express order then, this Court can always interfere under Article 226 of the Constitution. (iv) Again, in case, the validity of any statutory provisions or rules, regulations having force of statute is challenged on the ground of violation of constitutional provision then, the appellants can file a writ directly without insistence of reference. (v) In all the above cases, in those of the particular cases, where involved disputed question of fact arises for adjudication, then this Court would not interfere under Article 226 of the Constitution, irrespective of the implication of bar of Section 10 of the Act having available or not; In my view, therefore, the cumulative effect of Section 10 and Section 11-A, of the Industrial Disputes Act, 1947 creates a bar normally to entertainment of writ petitions for contravention of provisions of Chapter V-A of' the Industrial Disputes Act. But that bar or prohibition is subject to the above exception mentioned in para 170 of this judgment." 75. One thing need be mentioned. Although G.M. Lodha, J, sitting singly, had referred 11 questions formulated by him to the Full Bench, however, the Full Bench decided all the 39 writ petitions on their merits itself. Let me summarise what G. M. Lodha, J. held in his judgment given by the Full Bench. One thing need be mentioned. Although G.M. Lodha, J, sitting singly, had referred 11 questions formulated by him to the Full Bench, however, the Full Bench decided all the 39 writ petitions on their merits itself. Let me summarise what G. M. Lodha, J. held in his judgment given by the Full Bench. As already stated, 15 petitioners were permanent employees and 24 petitioners were temporary employees of the Corporation, G.M. Lodha, J held on various aspects : (1) That, Rajasthan State Road Transport Corporation was 'State' within the definition of the word given in Article 12 of the Constitution and was amenable to writ jurisdiction of the High Court and was subject to the same constitutional limitations as Government. (2) That, the petitioners were not employees at the pleasure of the Corporation employer but, they enjoyed "status" under the relevant rules, regulations and statute governing the Corporation and its employees and, the relationship are governed by the "status" in contra- juxtaposition to contract. (3) Clause 13 of the Standing Orders of the Corporation had got force of law for the purpose of Article 14 of the Constitution; (4) The decision of this Court in Mohan Lal v. Rajasthan State Road Transport and another, (S.B. Civil Writ Petition No. 1012 of 1982 decided on January 28, 1983 at Jodhpur) so far as it declares clause 13 of the Standing Orders, 1965 as intra vires fails to lay down the correct law as Clause 13(i) of the Standing Orders is ultra vires being in violation of Article 14 and 16 of the Constitution of India so far as it relates to the "permanent" employees. (5) So far as temporary employees who fulfilled the requirement of Chapter V-A would be entitled to challenge their termination in case there has been contravention of Section 25-F and 25-G or both, as the case may be; (6) Order of termination passed against permanent as well as temporary employees was quashed and set aside on the (omitted matter)order was passed under clause 13 of the Standing Orders 1965 which was invalid. (7) In respect of all the petitioners, provision of Section 25-G of Chapter V-A of the Industrial Disputes Act, 1947 and rule 77 of the Industrial Disputes (Central) Rules, 1957 had also been contravened and on that the ground also, their termination of services was liable to be quashed. (7) In respect of all the petitioners, provision of Section 25-G of Chapter V-A of the Industrial Disputes Act, 1947 and rule 77 of the Industrial Disputes (Central) Rules, 1957 had also been contravened and on that the ground also, their termination of services was liable to be quashed. (8) It would be inexpedient to direct that all the petitioners should be paid back wages because in the absence of an adjudication by a competent. forum or Labour Court or Industrial Tribunal, it is difficult to ascertain and adjudicate in writ petition whether they were doing anywhere any business or were in any private service and what amount they have earned there. 76. So far as N.M. Kasliwal, J was concerned, he held : (1) Rajasthan State Road Transport Corporation is a State for the purposes of Article 12 of the Constitution; (2) Petitioners are in ................employment and have right to challenge their orders of termination being illegal and contrary to the various provisions of the Industrial Disputes Act and in violation of Article 14 & 16 of the Constitution of India; (3) So far as the non-compliance of the rule "last come first go" as contained in Section 25-F of the Act, counsel for the Corporation itself had not disputed. So far as the compliance of the conditions precedent to retrenchment of workman as contained in Section 25-F of the Act was concerned, the Corporation had failed to furnish any material on the record. Since he was taking the view that there was clear non-compliance of the conditions contained in Sections 25-F and 25-G of the Act in all the cases, it was not necessary to decide attack against Clause 13 of the Employees Standing Orders as violative of Articles 14 and 16 of the Constitution of India. (4) Standing orders issued under the provisions of Industrial Employment (Standing Orders) Act, 1946 have force of law. Clause 13 of the Employees Standing Orders is violative of Articles 14 & 16 of the Constitution of India. (5) Since the petitioners had challenged the vires of Clause 13 of the Employees Standing Orders and some being clearly in violation of Section 25-F and 25-G of the Act, the bar of raising an industrial dispute is of no consequence. Clause 13 of the Employees Standing Orders is violative of Articles 14 & 16 of the Constitution of India. (5) Since the petitioners had challenged the vires of Clause 13 of the Employees Standing Orders and some being clearly in violation of Section 25-F and 25-G of the Act, the bar of raising an industrial dispute is of no consequence. A Division Bench of this Court to which he was a party in Tejbhan Singh v. State of Rajasthan & Others (D.B Civil Special Appeal No. 234 of 1980 decided on April 27, 1983) , it had been held that the remedy under Section 10 of the Industrial Disputes Act is no bar for filing a writ petition under Article 226 of the Constitution of India. The entire law with regard to Section 10 of the Industrial Disputes Act when becomes a bar and under what circumstances and the scope of approaching this Court under Article 226 of the Constitution of India had already been discussed in detail in that case and he did not want to make any discussion further in regard to this controversy. However, in the facts and circumstances of that case, there was no force at all in the contention that the petitioners should have availed the remedy of raising an industrial dispute before filing the writ petition under Article 226 of the Constitution. Justice K.S. Sidhu held as follows : (1) Standing Orders framed and certified under the Industrial Employment (Standing Orders) Act 1946 are not law. Clause 13 of the Standing Orders is not "law" as defend in Article 13(3) of the Constitution. It is merely one of the conditions of employment which may or may not be enforced by a labour court or Industrial Tribunal appointed under the Industrial Disputes Act 1947. Argument that clause 13 is ultra vires Articles 14 and 16 suffers from a fallacy inasmuch as it proceeds on the false premise that clause 13 is "law" within the ambit of Article 13(3) of the Constitution. Even otherwise, the argument that the clause 13 of the standing order is invalid does not call for any decision. (2) Any termination of service otherwise than as a punishment is retrenchment unless it is by way of voluntary retirement of the workmen, or retirement of the workmen on reaching the age of Superannuation or termination on the ground of continued ill-health. (2) Any termination of service otherwise than as a punishment is retrenchment unless it is by way of voluntary retirement of the workmen, or retirement of the workmen on reaching the age of Superannuation or termination on the ground of continued ill-health. Retrenchment in contravention of the provisions of Section 25-F or Section 25-G is invalid and that in such a case the workman concerned should be treated as still continuing in service. (3) No material has been placed on the record to satisfy that the rule "last come first go" as enacted in Section 25-G was followed by the Corporation. No reason was given in writing why the Corporation did not follow the rule of "last come first go". The retrenchment in question were therefore invalid and need not examine whether the provisions of Section 25-F had been complied with or not; (4) As per relief, it shall be left for industrial adjudication to decide whether the workman shall be reinstated and if so on what terms and conditions, or whether award of compensation be the right solution of the controversy in each individual case on its own facts and circumstances. As for back wages and future wages till their reinstatement or till award of compensation etc. by industrial adjudication, I would leave the workmen to seek their remedy under Section 33-C (2) of Industrial Disputes Act. 1947. Moreover, the question as to whether the workmen concerned have been gainfully employed or not during the period after the termination of their services by the Corporation is a complicated question of fact which this Court is ill-equipped to decide in proceedings under Article 226 of the Constitution." 77. Then followed the operative part of the judgment of the Full Bench. As to question No. 6, a majority judgment of Lodha and Sidhu, JJ was recorded as follows : "The cumulative effect of Section 10 and 11-A of the Industrial Disputes Act, 1947 is that normally, they create a bar to the entertainment of a writ petition for relief against contravention of provisions of the Chapter V-A of the Act, but that bar is subject to the exceptions made in para 178 of the current judgment. Thus this Court can entertain the writ petition under Article 226 of the Constitution against the termination of services in exceptional cases specified in paragraph 170 of this judgment but not normally." 78. Thus this Court can entertain the writ petition under Article 226 of the Constitution against the termination of services in exceptional cases specified in paragraph 170 of this judgment but not normally." 78. Taking the ratio desidendi of this Full Bench judgment on the question of entertain ability of the writ petition, it comes to this that Lodha, J and Kasliwal J agreed on this point that since in the writ petitions, validity of clause 13 of title Standing Orders was challenged, writ was maintainable. Kasliwal, J did not fully share with Lodha, J on all the principles laid down by Lodha J, in para 170 of the Judgment So far as Sidhu, J., is concerned, by signing the operative part of the judgment he agreed with Lodha, J with regard to the principles laid down in para 170 of the judgment. It may be mentioned that although Sidhu, J did not hold that clause 13 of the Standing Orders is law and he also came to the conclusion that the argument that clause 13 of the Standing Orders is invalid does not call for any decision, yet, set aside the retrenchment of 39 petitioners as invalid solely on that ground that no material had been placed on the record to satisfy that the rule of "last come first go" as enacted in Section 25-G was followed by the Corporation and no reason was given in writing why the Corporation did not follow the rule of "last come first go". For relief of re-instatement and back wages or compensation, he left the matter for adjudication to industrial adjudication. How Sidhu, J, despite his answer given to question No. 6 concurrently wish Lodha, J, allowed the entertainment of the writ petition is not very clear. Sidhu, J, in his separate judgment. as a matter of fact, did nowhere specifically discuss the question of alternative remedy. But while operative part of the judgment was drawn up giving answers to various questions referred to the Full Bench, concurrence of Sidhu, J stands recorded with the views of Lodha, J and the same stand signed by him. 79. Sidhu, J, in his separate judgment. as a matter of fact, did nowhere specifically discuss the question of alternative remedy. But while operative part of the judgment was drawn up giving answers to various questions referred to the Full Bench, concurrence of Sidhu, J stands recorded with the views of Lodha, J and the same stand signed by him. 79. The exceptions recorded in para 170 of the judgment were two-fold:- (1) Where the Government refuses to make a reference either by not passing an order in a reasonable time or if it refuses to refer by an express order; and (2)Where the validity of any statutory provisions or rules, regulations having force of statute is challenged or an order is challenged on the ground of violation of constitutional provision. 80. I may proceed further to show that despite the above Full Bench decision in Bhanwar Lal etc. etc. v. Rajasthan State Road Transport Corporation & Another ( 1984 RLR 619 ) , conflict in opinion is continuing in this Court. Justice M. B. Sharma dealt with the matter in two cases, namely Oswald S. Joseph v. R.S.R.T.C., Jaipur and Others, (S.B. Civil Writ Petition No. 161 of 1985 decided on 30.11.86) and in Rameshwar Lal Yadav v. The Rajasthan State Agricultural Marketing Board and Others (1987) Vol. 1. LLJ 59. He observed : According to the petitioner, the removal of the petitioner comes under the ambit of retrenchment as per provisions of Section 2 (oo) of I.D. Act. In my opinion, the remedy provided under the provisions of the I.D. Act is mere efficacious and in case of retrenchment under Section 2(00) of the I. D. Act, the remedy provided in the I.D. Act must be first exhausted. I examined the question in Oswald S. Joseph v. RSRTC, Jaipur and Others .............I have taken a view therein that if the dispute is such which is within the jurisdiction of the Industrial Tribunal, it will be proper if the petitioner first resorts to the remedy provided under the Industrial Disputes Act. I examined the question in Oswald S. Joseph v. RSRTC, Jaipur and Others .............I have taken a view therein that if the dispute is such which is within the jurisdiction of the Industrial Tribunal, it will be proper if the petitioner first resorts to the remedy provided under the Industrial Disputes Act. In the aforesaid case of Oswald S. Joseph v. R.S.R.T.C., Jaipur reference has been made by me to the case of the Supreme Court as well as of this Court including the case of Nagaur Central Co-operative Bank Ltd. v. Kesa Ram a Division Bench of the Court which did not take into consideration of the law laid by the Supreme Court in the case of Basant Kumar Sarkar v. Eagle Rolling Mills (1964) II LLJ 105. In the aforesaid case of Basant Kumar Sarkar v. Eagle Rolling Mill (supra) the Supreme Court confirmed the view of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the notices and circular is to take recourse to Section 10 of the I.D. Act. In my opinion in a case to which provisions of the I.D. Act are applicable the petitioner should first exhaust the remedy provided therein. The dispute should be raised, conciliation proceedings take place. if there is a failure the State Government is required to mike a reference under Section 10 of the I.D. Act to the Tribunal or the Judge, Labour Court. In case it refuses to make a reference to the Industrial Tribunal or Judge, Labour Court, the petitioner can come to this Court and if proper case can he made out, the Court should and rather will issue a mandamus to the State Government to make a reference". 81. The matter came for consideration before a Division Bench in Satyendra Singh Rathore v. Rajasthan Rajya Pathya Pustak Mandal, Jaipur and Others, 1988 (2) RLR 308 . His Lordship Byas, J, delivering the judgment of the Bench, observed : "The pertinent question, however, is whether the petitioner has a right to get the dispute referred for adjudication to the Labour Court/Industrial Tribunal. For getting the dispute referred to under the Art for adjudication to the Labour Court/Industrial Tribunal, the workman has to overcome many hurdles in his way. First of all his case mast be sponsored or espoused by the Workmen Union. For getting the dispute referred to under the Art for adjudication to the Labour Court/Industrial Tribunal, the workman has to overcome many hurdles in his way. First of all his case mast be sponsored or espoused by the Workmen Union. He should, therefore, first approach the Union. The Union may or may not spongier his cause. If the Union decides to espouse his cause, the matter wall travel to the conciliation officer. The conciliation officer is to 'Submit his failure re, ort to the appropriate Govt. under Section 12 of the Act. The appropriate Govt. under Section 12(5) of the Act may make the reference. It is open to the appropriate Government to make or not make the reference. The workman has thus to overcome all these hurdles. It is in the knowledge of everybody that to get any industrial dispute referred to the Industrial Tribunal/Labour Court for adjudication is a very hazardous task. The workman has no right to get the dispute referred to. It cannot be, therefore, said that an effective alternative remedy is available to the petitioner under the Act". 82. The learned Judge then referred to the Division Bench Judgment of this Court in Nagour Central Co-operative Bank Ltd. v. Kesa Ram, 1979 RLW 480 and Bhanwarlal & Ors v. Municipal Board, Nagour and Others, (1987)1 RLR 601 in support of his view. He then went on to observe: "More or less the same view was taken in Bhanwar Lal and Others v. Rajasthan State Road Transport Corporation & Others, 1984 RLR 619 . " 83. Here I should pause to state that in Bhanwar Lal & Others v. Rajasthan State Road Transport Corporation & Others, 1984 RLR 619 , the Full Bench had not taken "more or less the same view". On the other hand, as already discussed above, the majority or the judges had taken a contrary view. Then Byas J. further observed : In D.B. Civil Appeal No. 234 of 1980, Tej Bhan Singh & Others v. The State of Rajasthan decided on April 27, 1983 by a Division Bench of this Court the same view was reiterated. On the other hand, as already discussed above, the majority or the judges had taken a contrary view. Then Byas J. further observed : In D.B. Civil Appeal No. 234 of 1980, Tej Bhan Singh & Others v. The State of Rajasthan decided on April 27, 1983 by a Division Bench of this Court the same view was reiterated. The learned judges observed: "Thus there is a catena of decisions of this Court taking the view that alternative remedy under Section 10 of the Industrial Disputes Act is no bar to the maintainability of Writ petition under Article 226 of the Constitution where the order of retrenchment is clearly in violation of Section 25-F of the Act; This Court has thus taken a consistent view that the workman cannot claim the relief of making the reference under the Act as a matter of right. It cannot be, therefore, said that the petitioner had an effective alternative remedy under Section 10 of the Industrial Disputes Act." 84. It is again interesting to rote that in Mahesh Chaudhary v. State of Rajasthan, 1987(II) RLR 650 (D.B.) in a matter pertaining to alleged violate, on of Section 25F in the termination of the service of the petitioner, an objection had been taken on behalf of the State of Rajasthan before the Division Bench that the petitioner had an alternative remedy available to him under the provisions of the Industrial Disputes Act and the writ petition was maintainable. P.C. Jain, J., speaking for the Division Bench, observed : As regards the maintainability of the writ petition Shri Shah (counsel for the petitioner has submitted that the preliminary objection raised by Shri Mathur, learned Government Advocate, is fully covered by a Full Bench decision of this Court in Bhanwar Lal v. RSRTC ( 1984 RLR 619 . In view of the proposition of law laid down by a Full Bench decision of this court, we are of the opinion that there is no merit in the contention raised by Shri Mathur (Counsel for the State)". 85. That is how the Full Bench decision of this Court had been misread by two Division Benches of this Satyendra Singh Rathore and Mahesh Chaudhary's case (supra). 86. 85. That is how the Full Bench decision of this Court had been misread by two Division Benches of this Satyendra Singh Rathore and Mahesh Chaudhary's case (supra). 86. Coming to Oswald S. Joseph v. Rajasthan State Road Transport Corporation & Others(S.B. Civil Writ Petition 161 of 1985 decided by M.B. Sharma J., on June 30, 1986) , it may be mentioned that in that case the facts were that Oswald S. Joseph, a mechanic Grade-I in the Rajasthan State Road Transport Corporation, was removed from service by the Corporation after holding a domestic enquiry. He challenged the order of his removal by way of writ petition mainly on the ground that the principles of natural justice were not followed inasmuch as the names of the witnesses to be examined on behalf of the Corporation were not disclosed and the contents if documents were not allowed to be inspected by the petitioner. The contention put forward on behalf of the petitioner was that if in any domestic inquiry the principles of natural justice were not followed, the order of removal based on it was without jurisdiction and it was not necessary for the petitioner to raise industrial dispute under Section 1(k) of the Act. With respect to this contention the learned Single Judge stated that the law can be said to be settled that if a reference is made to the Industrial Tribunal under Section 10 of the Act on an industrial dispute under Section 2(k) being raised by the worker, the Tribunal has to first decide as a preliminary issue whether the domestic inquiry was in accordance with rules, if any or in accordance with principles of natural justice. If the Tribunal decided that the inquiry was not fair and proper and was against the rules of natural justice then if the employer wanted to prove misconduct before the Tribunal, it had to afford to the employer an opportunity to prove the charge against the workman. The learned Single Judge referred to a decision of the Karnataka High Court in Hariba's case where it was held that the writ petition could not be entertained and the workman should be asked to resort to his remedy under Section 10 of the Industrial Disputes Act. The learned Single Judge referred to a decision of the Karnataka High Court in Hariba's case where it was held that the writ petition could not be entertained and the workman should be asked to resort to his remedy under Section 10 of the Industrial Disputes Act. The learned Judge also relied upon the decision in Basant Kumar Sarkar v. Eagle Rolling Mills, 1964-II LLJ 105 S.C ) and the decision in State of Madhya Pradesh and another v. Bhailal Bhai and Others, AIR 1964 S.C. 1006 . The learned Judge observed : "In other words, if the writ petition is entertained under Article 226 of the Constitution, in such cases it will be denial to the employer of a right to take a defence which is legally open to it in such cases.That apart, if ultimately after hearing the writ petition the High Court comes to the conclusion that the charge is provided, the High Court may not be in a position to exercise its power under Section 11-A of the Industrial Disputes Act which a power is vested in the Tribunal to reduce the penalty imposed by the employer or in other words to impose a lesser penalty in case the Tribunal comes to the conclusion that the penalty imposed is disproportionate to the charge. Thus, the dispute of the present matter is between the petitioner and the Corporation and is on industrial dispute under Section 2 (k) and lies within the jurisdiction of the Industrial Tribunal and in my opinion in the nature of the controversy involved, it will be proper if the petitioner is directed to resort to his remedy provided under the Industrial Disputes Act, as it will not be proper and fair to entertain this writ petition". 87. However, in a case of retrenchment in contravention of clauses (a) and (b) of Section 25-F of the Act, Division Bench of this Court consisting of M. B. Sharma and I. S. Israni JJ., in Hanuman Singh v. Municipal Council, Jaipur held : "Thus it is a case where we are of the opinion that there is contravention of clauses (a) and (b) of Section 25-F of the Act. This Court has taken a consistent view that in case facts arc not disputed and this Court has come to the conclusion that there is contravention of any of the clauses (a) or (b) of Section 25-F of the Act, an employee could not be relegated to a remedy under Section 10 of the Act." 88. Then there is decision of K.S. Lodha, J in Bhanwar Lal & Others v. Municipal Board, Nagaur and Others, (1987) 1 RLR 600 wherein the learned Judge observed : "A careful perusal of all these authorities leads me to the conclusion, that ordinarily when an alternative remedy is available to a petitioner he should not be allowed to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution but it is not an inflexible rule and in cases where the court comes to the conclusion that the order challenged is patently illegal and also violated the principles enshrined in the Constitution, it may entertain a writ petition and may not require the petitioner to first exhaust the alternative remedy available to him. In the present case................there has been a flagrant violation of Section 25-F of the Industrial Disputes Act and also discrimination has been made improperly between persons similarly situated". 89. It would thus be clear that despite the Full Bench decision in Bhanwar Lal etc. v. R.S.R.T.C. & another (supra), the conflict in decisions has persisted in this Court. G. M. Lodha. J (as he then was) in Full Bench decision in Bhanwar Lal's case says that Premier Automobiles (AIR 1975 S. C. 2238) holds the field, R.M. Kasliwal J. (as he then was) stated that he had fully considered that matter in Tej Bhan Singh's Case (Supra), Byas. J, speaks in Satyendra Singh Rathore (1988) RLR 308 of various hurdles" and "hazardous task" and refers to a "catena of this Court's decisions" from Nagaur Cental Co-operative Bank Ltd. (1979 RLW 480) and Tej Bhan Singh's case (supra) to Bhanwar Lal & Ors v. Municipal Board Nagaur (1987) 1 RLR 601 . J, speaks in Satyendra Singh Rathore (1988) RLR 308 of various hurdles" and "hazardous task" and refers to a "catena of this Court's decisions" from Nagaur Cental Co-operative Bank Ltd. (1979 RLW 480) and Tej Bhan Singh's case (supra) to Bhanwar Lal & Ors v. Municipal Board Nagaur (1987) 1 RLR 601 . M.B. Sharma, J. discarded Nagaur Central Co-operative Bank Ltd case (supra) and relies upon Basant Kumar Sarkar, (1964) II LLJ 105 (S. C.) in Oswald S. Joesph and others but in Hanuman Singh's case (supra) says that an employee could not be relegated to a remedy under Section 10 of the Industrial Disputes Act where there is contravention of 'clauses (a) and (b) of Section 25-F, Pana Chand Jain J., sitting in Division Bench in Mahesh Chaudhary's case (1987) 11 RLR 690. misreads the Full Bench decision and K. S. Lodha, J in Bhanwar Lal & Others v. Municipal Board Nagaur, (1987) I RLR 600 says that High Court will interfere when there is flagrant violation of Section 25-F and violation of the principles enshrined in the Constitution. Where we exactly stand is in a state of fluid. In this background, I am again faced with the herculean task of delineating the jurisdiction of the High Court under Article 226 of the Constitution vis-a-vis rights and obligations created by or under the Industrial Disputes Act, 1947. 90. Then I may mention about two more Full Bench decisions of Punjab and Haryana and Patna High Courts which have lately been pronounced. "The decision of Full Bench at Punjab and Haryana High Court is in the case of Manohar Lal v. State of Punjab and another, 1983 Lab. I.C. 1763 . Like our Full Bench decision (Per G.M. Lodha, J). the decision of the Full Bench of Punjab and Haryana High Court also based its decision upon the decision of the Supreme Court in Premier Automobiles Ltd. case ( AIR 1975 S.C. 2238 ). Following observations of Prem Chand Jain, Acting C.J., may be quoted : ""I find that the question posed for our decision stands fully answered by the judgment of the Supreme Court in Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke ( AIR 1975 S.C. 2238 ) .... Following observations of Prem Chand Jain, Acting C.J., may be quoted : ""I find that the question posed for our decision stands fully answered by the judgment of the Supreme Court in Premier Automobiles Ltd. v. Kamalakar Shantaram Wadke ( AIR 1975 S.C. 2238 ) .... Merely this fact that the question that fell in for determination in Premier Automobile's case concerned the Civil Court's jurisdiction in relation to industrial disputes would make least difference in determining the relevancy and applicability of the observations of their Lordships of the Supreme Court while deciding the question posed before us........I fail to understand as to how will it cease to be a remedy simply because the matter of reference depends upon the opinion of the government...... Thus the remedy provided to a workman giving him right to claim a reference under Section 10 of the Act for the redress of his grievance is certainly an alternative remedy and does ordinarily bar the filing of a writ petition .... ........ At this stage, reference may be made to another judgment of the Supreme Court in Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., ( AIR 1964 S.C. 1260 ) wherein exactly a similar question arose for consideration............A bare perusal of the aforesaid observations shows that the remedy under Section 10 of the Act has been treated as a proper remedy so as to bar the exercise of jurisdiction under Article 226 of the Constitution. As a result of the aforesaid discussion, I hold the mode of redress provided to a workman by claiming a reference under Section 10 of the Act is a proper efficacious, alternative remedy which ordinarily would be a bar to the filing of a writ petition " The Full Bench overruled the previous Division Bench decision of the Punjab & Haryana High Court in Rajbir Singh's case (1983-1 Serv. LR 38). 91. The decision of the Full Bench of Patna High Court is in the case of Dinesh Prasad and Others v. State of Bihar and Others, reported in (1985) 1-LLJ 343. LR 38). 91. The decision of the Full Bench of Patna High Court is in the case of Dinesh Prasad and Others v. State of Bihar and Others, reported in (1985) 1-LLJ 343. Judgment of Full Bench was delivered by S.S. Sandhawalia, C.J. He may be quoted : "As would be manifest hereinafter, I am inclined to take the view that the issues herein are concluded by the binding precedent in the Premier Automobiles Ltd. v. Kamalkar Santaram Wadke (1975-II LLJ 145) which, in turn stands reiterated forcefully in Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (1976-I LLJ 274) ... Even a bird's eye view of the provisions of the Act and the Rules framed thereunder can leave little manner of doubt that this statute fashions new industrial rights for the workmen and spells out specific remedies for the enforcement these of ........ It is manifest that rights under the Act are by and large the creatures of the statute and granted by the mandate of the legislature ....... . Therefore, on the well-established uno flatu rule the right and remedy are irrevocably married and are not to be divorced from each other ............... While declining the reference the Government is required to apply its mind and act reasonably and not capriciously or arbitrarily .... Yet again the aggrieved party is entitled to approach the High Court by way of writ jurisdiction to show that the action of the Government declining the reference is not legally sustainable or there has not been adequate application of mind....... ..................................... Therefore, even if qua remedy it was held (in Premier Automobile Ltd. case) that the remedies provided under the Act were alternative thereto it would be more so in the context of the writ jurisdiction with its limitation of being confined to admitted facts or jurisdictional errors and patent issues of law alone. Therefore, the distinction sought to be drawn to evade the ratio of the Premier Automobiles' case (supra) is wholly untenable and the contention must fail..... Therefore, the distinction sought to be drawn to evade the ratio of the Premier Automobiles' case (supra) is wholly untenable and the contention must fail..... Having dealt with the first question and now adverting to the second one, it seems vital for the sake of clearly of precedent to highlight at the very outset that today there is no matter of doubt that even the existence of an adequate and efficacious alternative remedy is not and indeed cannot be any inflexible legal bar to the entertainment of a writ petition. The constitutional power of the High Court under Article 226 is untrammelled by any unsurmountable limitation on its exercise ........... Therefore, the central issue herein is not the jurisdiction, or the power of the Writ Court, which as already noticed, is a constitutional power untrammelled by any limitation but the self-denying Ordinance of the self disciplined restraint of the Judges in exercising such a power as a matter of policy and judicial discretion ...........With this jurisdiction what perhaps, calls for pointed notice is the fact that the very position arose in Basant Kumar Sarkar v. Eagle Rolling Mills Ltd., ( AIR 1964 S.C. 1260 ). However, it is not on precedent alone that the matter herein seems to rest and larger consideration equally come in to support its rationale. As a representative example............ in the context of S. 25-F of the Act, a necessary factual base is always a pre-condition for its application, and, ordinarily, if not invariably it is controverted, and, therefore, it is a wholly inappropriate lie for the writ jurisdiction in the first instance. In order to claim relief under Section 25-F, it must first be factually established that the workman had been in continuous employment for one year, which for statutory purpose, would mean 240 days of continuous service, defined in Section 25-B with regard to the deeming provision of uninterrupted service thereunder. Equally where there has been a works contract, or what as a term of art is called a closure of a project, then again the provisions of Section 25-F would not be attracted. Equally where there has been a works contract, or what as a term of art is called a closure of a project, then again the provisions of Section 25-F would not be attracted. All these factors are necessarily in issue for relief under Section 25-F and for the Writ Court to rush into the thicket of controverted and tangled facts would be plainly unwarranted both on principle, policy, convenience and discretion............In essence the by-passing of the rule of alternative remedy in the context of the Act would not only reduce the High Court to the levels of the Labour Courts and Industrial Tribunal but virtually frustrate the intention of the Legislature to provide an adequate hierarchy of forums for enforcing the remedies under the Act........ The writ jurisdiction is not the remedy of the first instance, where others exist. It is the remedy of the last resort. If the Legislature, in its wisdom, provides a statutory remedy, it is not for the High Courts override and nullify that mandate. It remains to recall the memorably and yet picturesque words of Krishna Iyer, J., speaking for the court, in the specific context of the Industrial Disputes Act in Rohtas Industries Ltd. v. Rohtas Industrial Staff Union (1976-I LLJ 274) when it was observed; "But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a China shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a patent drug should be judiciously administered." ....... "It is held that the suiter must exhaust the remedies under the Act before seeking relief in the writ jurisdiction, unless the monstrosity of the situation or other exceptional circumstances cry out for interference by the Writ Court at the very threshold". 92. Let me now turn to narrate, in brief, the case of the petitioners in these writ petitions and the reliefs claimed by them. 92. Let me now turn to narrate, in brief, the case of the petitioners in these writ petitions and the reliefs claimed by them. In Civil Writ Petition No. 625 of 1988, case of the petitioner Mahendra Nath Sharma is that he was initially appointed as salesman on the recommendations of Roop was Kraya Vikray Sahkari Samiti Ltd. with effect from August 12, 1985 on daily wages at 11/- per day and was getting Rs. 330/- per month consolidated wages. Co-operative Society (Responds it No. 2) made its recommendations on October 27, 1985 for making regular appointment of the petitioner on the post of Salesman. The salary of the petitioner had been increased from Rs. 330/- P.M. to Rs. 460/- p.m. with effect from November 17, 1986 by a Resolution dated May 25, 1986. However, respondent No. 1 passed an order dated 5/7th Oct. 1987 under Section 32(2) of the Rajasthan Co-operative Societies Act, 1965 cancelling the Resolution of Respondent No. 2 dated October 27, 1985 and in pursuance of that the respondent No. 2 has passed an order terminating the services of the petitioner. It has been alleged that respondent No. 2 is an "industry" within the meaning of Section 2 (g) of the Act and the petitioner was a workman. The petitioner had completed 240 days of his regular service. It is further alleged that Respondent No. 2 Co-operative Society is also an authority falling within the term "other authorities" mentioned in Article 12 of the Constitution of India. The order of termination of his services dated March 17, 1988 is said to be passed in violation of Sections 25-F and 25-G of the Act as well as in violation of Articles 14 and 16 of the Constitution of India. 93. Petitioner Arun Kumar Goyal, in Civil Writ Petition No. 2168 of 1989, has pleaded that he was initially appointed as Lower Division Clerk on daily wages by the Regional Dy. Director (Child Development) Women, Child and Nitration Department Bharatpur (Respondent No. 3) by his order dated September 19, 1988 and he joined his duties on September 20, 1988 in the office of Child Development Project Officer, Weir, District Bharatpur. Director (Child Development) Women, Child and Nitration Department Bharatpur (Respondent No. 3) by his order dated September 19, 1988 and he joined his duties on September 20, 1988 in the office of Child Development Project Officer, Weir, District Bharatpur. According to the petitioner, he has completed the requisite service prescribed under Section 25-B of the Act but his services had been terminated without complying with the requirements of Section 25-F of the Act and also in violation of Articles 14 and 16 of the Constitution of India. 94. Ram Avtar Sharma, petitioner in Civil Writ Petition No. 2368 of 1989, has alleged that the Rajasthan State Road Transport Corporation (Respondent No.l) is "State" within the meaning of Article 12 of the Constitution of India. The petitioner was appointed on daily wages in the said Corporation as Conductor on November, 11, 1986 at Rs. 20/- per day but he was retrenched without complying with the mandatory provisions of Sections 25-F and 25-G of the Act and also in violation of Articles 14 and 16 of the Constitution. Seriously petitioners Ashok Kumar Sharma and Shankar Singh Chauhan, in their joint Writ Petition No. 2226 of 1986 complain that the Rajasthan State Road Transport Corporation have retrenched them without complying with the procedure of Sections 25-F and 25-G of the Act. Same is the case of Radhey Shyam Sharma petitioner in Civil Writ Petition No. 3062 of 1989. 95. Petitioner Kalyan, Mohan Lal and Ram Karan in their respective Writ Petition Nos. 4014, 4015 and 4016 of 1989 have alleged that they were casual class IV employees employed in S. K N. Agricultural College, Jobner which is an educational Institution affiliated to the Rajasthan Agriculture University, Bikaner. S.K.N Agriculture College is stated to be "State" within the inclusive definition of that term given in Article 12 of the Constitution of India and also an "industry" as defined in the Act. They also complain of termination of their services without complying with the provisions of Section 25-F of the Act. 96. Babulal petitioner, in Civil Writ Petition No. 4028 of 1989, was engaged on daily wage basis on the post of Beldar in the Public Works Department Rajasthan, Jaipur and he states to have completed 240 days of service and he alleges that his name was struck off from the rolls without compliance of Section 25-F and 25-G of the Act. 97. 97. Anand Raj Khandelwal, Saied Hyder Rizvi and Om Prakash Sharma petitioners in joint Writ Petitions No. 4038 of 1989 have alleged that they were appointed in the posts of Lower Division Clerk under the orders issued by Pass- Port Officer, Pass-Port Office. Jaipur as daily wages employee respectively with effect from 11-4-1985, 3-3-1984 and 11-5-1985 but their services were terminated by Orders dated 15-9-89 (Annexure 6, 7 and 8). They have complained of violation of Article 14, 16, 21 and 23 of the Constitution of India and that of Section 25-F of the Act. 98. It would thus appear that in all these Writ Petitions, the petitioners have complained of their retrenchment in violation of Section 25-F and 25-G of the Act. In view of the importance of the question and in view of the conflict in decisions of this Court before and even after the Full Bench decision in Bhanwar Lal etc. v. Rajasthan State Road Transport Corporation (Supra) as already detailed above, I chose to hear not only the counsels appearing for the parties in these writ petitions but also other learned counsels of the Birth intervened during discussion and arguments. I appreciate the spirit in which the matter was argued by the learned counsel Messrs (sic). 99. The Industrial Disputes Act, 1947 received the assent of the Governor General on March 17, 1947 and came into force on April 1, 1947. If we go through the Act, as originally enacted, it would appear that its sole aim and object was to promote measures for securing and preserving amity and good relations between the employers and workmen through the medium of Works Committees consisting of representative of employers and workmen, to induce the parties to an industrial dispute or apprehended industrial dispute to come to a fair and amicable settlement of the dispute through the medium of conciliation officers and Board of Conciliation, to empower the appropriate Government, as occasion arises, to constitute a Court of Inquiry for inquiring into any matter, referred to it, and appearing to be connected with or relevant to an industrial dispute and to empower' the appropriate Government to refer any industrial dispute or apprehended industrial dispute to Industrial Tribunal for adjudication. There were imposed restrictions and in certain contingencies, prohibitions against strikes and lock-outs. There were imposed restrictions and in certain contingencies, prohibitions against strikes and lock-outs. Rajamannar, C.J. rightly said in Sree Meenakshi Mills Ltd. v. State of Madras (1951) II-LLJ 194(Mad) that "the essential object of all recent labour legislation has been not so much to lay down categorically the mutual rights and liabilities of employer and employees as to provide recourse to a given form of procedure for the settlement of disputes in the interests of the maintenance of peaceful relations between the parties, without apparent conflicts such as are likely to interrupt production and entail other dangers". So industrial peace, prevention of industrial unrest and industrial growth and production were there the ultimate aim. This Act was preceded by the Industrial Employment (Standing Orders) Act, 1948 requiring certain industrial establishments to sub 1st (sic) draft Standing Orders relating to matters set out in the Schedule to the Act to the Certifying Officer for certification. Provision was to be made in such Standing Orders of every matter set out in the Schedule which may be applicable to the industrial establishment and where Model Standing Orders had been prescribed, the draft standing orders were, so far as practicable, be in conformity with such model. Standing Orders finally certified under the Act could not, except on agreement between the employer and the workmen, be modified until the expiry of six months from the date on which the Standing Orders or the last modification thereof came into operation. Sub-Section (2) of Section 10 made provision relating to modification of Standing Orders. This was the clement of collective bargaining introduced in labour and industrial law. Contraventions of the Standing Orders finally certified under the Act for an industrial establishment rendered the employer to the punishment of fine. 100. Section 10 (1) of the Act, as originally enacted started with the words "if any industrial dispute exists or is apprehended". This was the clement of collective bargaining introduced in labour and industrial law. Contraventions of the Standing Orders finally certified under the Act for an industrial establishment rendered the employer to the punishment of fine. 100. Section 10 (1) of the Act, as originally enacted started with the words "if any industrial dispute exists or is apprehended". The vagueness of the opening words in unamended Section 10 (1) of the Act was exposed when Chandrashekhar Iyer, J. posed the questions : Whose apprehension is referred to in the Act, the government's or the parties' or the tribunal's or any one else?" Section 10 of the Act was, therefore amended by Amending Act 18 of 1952 (which replaced ordinance No. IX of 1951) and for the words 'if any industrial dispute exists or is apprehended the appropriate Government may" the words where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time" were substituted. It is thus clear that the appropriate Government sought to impose itself as opinion forming body" not with any avowed aim of fulfilment of socio-economic justice but on account of the vagueness exposed in the opening words of Section 10 (1) of the Act by the Madras High Court in T.D. Ramayya Pantulu Industrial Tribunal v. Kutty and Rao (Engineers) Ltd., (1949) LLJ 13 (Mad) and Kandan Textiles Ltd. v. Industrial Tribunal, (1949) LLJ 875 (Madras) and Raju's Cafe v. Industrial Tribunal, (1951) 1 LLJ 219 (Madras) and by Chandrshekhar Iyer J. 101. It was in the year 1953 that by Amending Act 43 of 1953 that certain statutory and important rights to get compensation and notice in the event of workmen being laid off or retrenched were for the first time given to a workman. Expressions "lay-off" and `retrenchment" came to be defined in the Act by insertion of Section 2 (kk) and 2 (oo). A new Chapter 7-A giving statutory rights to workman laid off or retrenched containing Sections 25-A to 25-J were inserted. As new Sections 25-A, 25-C, 25-D and 25-E used the expression Industrial establishment" and not "industry", it became necessary for the Parliament to define the expression "Industrial establishment" which it did by the Amending Act 48 of 1954. 102. A new Chapter 7-A giving statutory rights to workman laid off or retrenched containing Sections 25-A to 25-J were inserted. As new Sections 25-A, 25-C, 25-D and 25-E used the expression Industrial establishment" and not "industry", it became necessary for the Parliament to define the expression "Industrial establishment" which it did by the Amending Act 48 of 1954. 102. Further amendments in the Act became necessary in the year 1956 for the reason that the Industrial Disputes (Appellate) Tribunal Act, 1950 was , to be repealed and instead of "Industrial Tribunals" as were required to be constituted by Section 7 of the Act as originally enacted, a new hierarchy of adjudicating machinery in the form of Labour Courts, Industrial Tribunals and National Industrial Tribunals were decided to be established and constituted. By the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (Central Act 36 of 1956), a provision for voluntary reference of any existing industrial dispute or apprehended dispute, by agreement of the employer and the workmen, to the arbitration of Labour Court, Industrial Tribunal or National Tribunal was for the first time provided for. Thus the concept of voluntary arbitration" was introduced to bring about amicable settlement of dispute between employer and workman to increase good will and amity in their relations, industrial peace and voluntary settlement of disputes by arbitration. Provisions were also inserted to prevent changes in the condition of service applicable to any workman without notice and during conciliation proceedings or during pudency of any proceedings before a Labour Court, Industrial Tribunal or National Tribunal and preventing imposition of punishments on workmen concerned in such pending disputes. Definition of "workman" was also enlarged. 103. Provisions were also inserted to prevent changes in the condition of service applicable to any workman without notice and during conciliation proceedings or during pudency of any proceedings before a Labour Court, Industrial Tribunal or National Tribunal and preventing imposition of punishments on workmen concerned in such pending disputes. Definition of "workman" was also enlarged. 103. As on September 4, 1956, the Parliament by Amending Act 41 of 1956 inserted a new Section 25-F in the Act starting with a non obstante clause that "notwithstanding anything contained in Section 25-F" and proceeding further to provide that "no workman shall be entitled to compensation under that Section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred from one employer to another provided that (a) the service of the workman has not been interrupted by reason of the transfer, (b) the terms and conditions of service applicable to the workman after such transfer were not in any way less favourable than before the transfer, and (c) the employer to whom the ownership or management of the undertaking is so transferred is under the terms of the transfer or otherwise, legally liable to pay to the workmen, in the event of his retrenchment. 104. Soon thereafter there was another amendment by the Amending Act 18 of 1957 with effect from 6th June, 1957 whereby for the existing Section 25-FF, new Sections 25-FF and 25-FFF were substituted in the Act. New Section 25-FF sought to provide that where the ownership or management of an undertaking is transferred, the workman shall be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched. However, this provision remained subject to the same three provisos as already stated above. By new Section 25-FFF award of compensation was also provided in case of closing down of undertakings in accordance with the provisions relaying to retrenchment compensation under Section 25-F and the proviso thereto restricted the compensation up to three months average pay where the close down was on account of unavoidable circumstances beyond the control of the employer. 105. By new Section 25-FFF award of compensation was also provided in case of closing down of undertakings in accordance with the provisions relaying to retrenchment compensation under Section 25-F and the proviso thereto restricted the compensation up to three months average pay where the close down was on account of unavoidable circumstances beyond the control of the employer. 105. It would be of interest to note that in Hariprasad Shivshanker Shukla's case (supra) one of the contentions put forward by the Attorney General appearing for the Union of workmen, was that the non-obstante clause in the previous Section 25-FF showed by necessary intendment that a workman whose service had been terminated by reason of a change of employers on account of change of ownership or otherwise was to be entitled to retrenchment compensation under Section 25-F unless the conditions (a), (b) and (c) laid down in Section 25-FFF were fulfilled. This, according to the Attorney General, was Parliamentary exposition of the true meaning of "retrenchment" in the definition clause and in Section 25-F. His Lordship S.K. Das, J, rejected this contention by observing: "At first sight there appears to be considerable force in this argument, and the learned Attorney General has cited English and American decisions of high authority in support of his contention." 106. His Lordship was of the view that the Industrial Disputes (Amendment and Miscellaneous Provisions) Act 36 of 1956 was more in the nature of Parliamentary exposition than the Industrial Disputes (Amendment) Act 41 of 1956 which merely superseded the effect of the two decisions given by the Bombay High Court which were subject matter of appeal in Hariprasad Shivshankar Shukla's case as also a further decision of the Bombay High Court in Hospital Mazdoor Sabha v. State of Bombay, 1956 (58) Bom. L.K. 769. L.K. 769. His Lordship caught hold of item 10 of the Third Schedule inserted by Amending Act 36 of 1956 (matters within the jurisdiction of Industrial Tribunal) i.e. "Retrenchment of workmen and closure of establishment" and item No. 10 in the Fourth Schedule although the Schedules had not by then been brought into force and observed : "It is true that these new Schedules have not yet come into force, but the wordings of the items mentioned therein show that the legislature clearly envisaged a distinction between retrenchment and closure and retrenchment did not include closure of business; item 10 of the Fourth Schedule almost clinches the issue, because it shows how retrenchment of surplus labour may occur in a running industry. If we are to choose between the two amending Acts of 1956 on the point of parliamentary exposition, we unhesitatingly hold that .............. (Act 36 of 1956) is mere in the nature of parliamentary exposition than the.... ...... (Act 41 of 1956) which merely supersedes the effect of certain judicial demons.......... We are aware that on the narrower interpretation of the definition clause on the basis of the ordinary, accepted connotation of retrenchment, Section 25-F will apply to a continuing or running business only and Section 25-FF will become largely unnecessary. We do not think that that consideration need cause any difficulty, the judicial decisions on the basis of which Section 25-FF was enacted being held to be erroneous by us, no hardship is caused if Section 25-FF is rendered superfluous, because its aim is served by the correct interpretation now given of the definite clause and of the provision of Section 25-F, both of which are on that interpretation brought into harmony with the rest of the Act." 107. The amendments made by the Amending Act 18 of 1957 were thus the result of the decision of the Supreme Court in Hariprasad Shiv Shanker Shukla's case (supra). Though the amendments made by Act 18 of 1957 brought about a radical change in law with respect to closure of a business, but with respect to change of ownership or management of an undertaking by transfer as a result of agreement or by operation of law at its best the same law as it existed prior to the amendment has been clarified and there is no change in law on the point. 108. 108. As has already been discussed that the Supreme Court in Santosh Gupta v. State Bank of Patiala, (1980)II LLJ 72 (S.C.) , has departed from the decision in Hariprasad Shiv Shanker Shukla's case and his Lordship O. Chinnappa Reddy said: "In coming to the conclusion that the words "for any reasons whatsoever" in the definition of 'retrenchment' should be understood to mean "what they plainly say".... ....The expression "retrenchment" must include "every termination of the service of or workman by an act of the employer", unhampered by precedent." 109. This view was reiterated by a majority in Surendra Kumar Verma v. Central Government. Industrial Tribunal, (1981)1 LLJ 386 and in the cases of Mohan Lal v. Management of Bharat Electronics Ltd., (1981) Lab IC 806; L. Robert D' Souza v. Executive Engineer Southern Railway, (1982)1 LLJ 330 (333-34) ; Gammon India Ltd. v. Narayan Dass, (1983) Lab IC 1865 (1867) and in Karnataka State Road Transport Corporation Banglore v. Sheikh Abdul Khader, (1984) 1 LLJ 110 (115 (S.C.) . In Sheikh Abdul Khader's case (supra) it was observed : "We are inclined to hold that the stage has come when the view indicated in Sundra Money's case, (1976) 1 LLJ 478 , has been absorbed into the consensus' and there is no scope for putting the clock back or for an anti-clockwise operation". 110. The matter has now been referred to a larger Bench of five or seven judges for re-consideration of the vexed question. 111. Section 33-C which was inserted in the Act by Amending Act 36 of 1956 was amended by the Amending Act 36 of 1964. Amending Act 15 of 1965 brought about a radical change by inserting a new Section 2-A as a result of which discharge, dismissal, retirement or otherwise termination of an individual workman by an employer were, by legal fiction, given the character of an industrial dispute and in such matters an individual workman could himself, without his cause being espoused by the Union or group of workmen, raise an industrial dispute. By Amending Act No. 45 of 1975 a new Section 11-A was inserted in the Act empowering the Labour Court, Tribunal or National Tribunal on their satisfaction that the order of discharge or dismissal was not justified, to set aside the order and direct reinstatement of the workman on such terms and conditions as it thought fit or to give such other relief including the award of any lesser punishment, as the circumstances of the case might require. 112. Amending Act 46 of 1982 and 49 of 1984 were also passed but some of the amendments have not become operative as they have not been brought into force by the Government completely. The new definition of "industry" as sought to be substituted by Amending At 4A of 1982 has not been brought into force and the decision given in Bangalore Water Supply & Sewerage Board v. A. Rajappa and Others, (1978) I-LLJ 349 continues to hold the field. The most important amendment introduced by the Amending Act 49 of Act 1984 is the amendment of the definition of 6 retrenchment" in Section 2 (oo) of the Act by inserting sub-clause (bb) in it, which excludes from "retrenchment" termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein. 113. It next deserves mention that as observed in R. D. Shetty v. International Airport Authority of India, (1979) 3 SCC 489 that "so far as India is concerned, the genesis of the emergence of Corporation as instrumentality's or agencies of Government is to be found in the Government of India Resolution on Industrial Policy dated April 6, 1948 where it was stated inter alia that "management of State enterprise will as a rule be through the medium of public Corporation under the statutory control of the Central Government who will assume such powers as may be necessary to ensure this. It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that Corporations were created by Government for setting up and management public enterprises and carrying out other public functions. It was in pursuance of the policy envisaged in this and subsequent resolutions on Industrial policy that Corporations were created by Government for setting up and management public enterprises and carrying out other public functions. Ordinarily these functions could have been carried of by the Government departmentally through its service personnel but the instrumentality or agency of the Corporation was resorted to in these cases having regard to the nature of the task to be performed. The corporation acting as instrumentality or agency of Government would obviously be subject to the same limitations in the field of Constitutional and administrative law as Government itself, though in the eye of the law they would be distinct and independent legal entities". As stated in Sukhdev Singh and Others v. Bhagat Ram Sardar Singh Raghuvanshi and another, AIR 1975 S.C. 1331 , dealing with Oil and Natural Gas Commission, Life Insurance Corporation and Industrial Finance Corporation, A. N. Ray C. J. observed : "The State undertakes commercial functions in combination with Governmental functions in a welfare State. Government function must be authoritative It must be able to impose decision by or under law with authority. The element of authority is of a binding character. The rules and regulations are authoritative because these rules and regulations direct and control not only the exercise of powers by the Corporation but also all persons who deal with those Corporations ....................... All these provisions indicate at each stage that the creation, composition of membership, the functions and powers, the financial powers, the audit of accounts, the returns, the capital the borrowing powers, the dissolution of the Commission and acquisition of laid for the purpose of the Company and the powers of entry are all authority and agency of the Central Government ........................... The structure of the Life Insurance Corporation indicates that the Corporation is an agency of the Government carrying on the exclusive business of life insurance. Each and every provision shows in no uncertain terms that the voice is that of the Central Government. ........................ These provisions of he Industrial Finance Corporation Act show that the Corporation is in effect managed and controlled by the Central Government .. Authorities envisaged in Article 12 are described as instrumentality's of State action ...............These statutory bodies are "authorities" within the meaning of Article 12 of the Constitution". ........................ These provisions of he Industrial Finance Corporation Act show that the Corporation is in effect managed and controlled by the Central Government .. Authorities envisaged in Article 12 are described as instrumentality's of State action ...............These statutory bodies are "authorities" within the meaning of Article 12 of the Constitution". Mathew, J, in his concurring judgment observed : "The emerging principle appear to be that a public Corporation being a creation of the State is subject to the Constitutional limitation as the State itself. The pre-conditions of this are two, namely, that the Corporation is created by State. and the existence of power in the Corporation to invade the Constitutional right of individual............ ................ We are witnessing another dialectic process in history namely, that the Sovereign State having taken over all effective legal and political power from groups surrenders its power to the new massive social groups (W. Friedman, Law in a Changing Society, P. 298) ....... ........................ The combination of State and the furnishing of an important public service may result in a conclusion that the operation should be classified as a State agency." 114. The Supreme Court in Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 S. C. 1857 held that the expression "other authorities" in Article 12 is wide enough to include within it every authority created by a statute and functioning withing the territory of India or under the control of the Government of India. The State itself is envisaged under Article 289 as having the right to carry on trade and business. The State' as defined in Article 12 is comprehended to include bodies created for the purpose of promoting economic interest of the people. The circumstances that the statutory body is required to carry on same activities of the nature of trade or commerce does not indicate that the Board must be excluded from the scope of the word "State". 115. The State' as defined in Article 12 is comprehended to include bodies created for the purpose of promoting economic interest of the people. The circumstances that the statutory body is required to carry on same activities of the nature of trade or commerce does not indicate that the Board must be excluded from the scope of the word "State". 115. The Constitution Bench of the Supreme Court in Ajay Hasia and Others v. Khalid Mujila Sehravardi and Others, AIR 1981 S. C. 487 stated that the tests for determining as to when a Corporation can be said to be an instrumentality or agency of Government may now be called out from the judgment in the International Airport Authority case (supra), Bhagwati J, summarised the relevant tests gathered from the decision in the International Airport Authority case as follows:- (1) One thing is clear that if the entire share capital of the Corporation is held by Government, it would go a long way towards indicating that the Corporation is instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the Corporation, it would afford some indication of the Corporation impregnated with Government character. (3) It may also be a relevant factor whether the Corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State Control may afford an indication that the Corporation is a State agency or instrumentality. (5) If the functions of the Corporation are of public importance and closely related to Government functions, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a Corporation, it would be a strong factor supportive of this inference of the Corporation being an instrumentality or agency of Government''. 116. If on a consideration of these relevant factors it is found that the Corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case, be an authority" and, therefore, State" within the meaning of the expression in Article 12. 116. If on a consideration of these relevant factors it is found that the Corporation is an instrumentality or agency of Government, it would, as pointed out in the International Airport Authority case, be an authority" and, therefore, State" within the meaning of the expression in Article 12. Applying the above principles, the Society registered under J & K Registration of Societies Act, which established and carried on the administration and management of the Regional Engineering College, Srinagar was held to be an instrumentality or agency of the State and the Central Government and was held to be an "authority" within the meaning of Article 12 of the Constitution. It was, therefore, subject to the same Constitutional limitations as the Government and was equally bound by the basic obligation to obey the Constitutional mandate of the Fundamental Rights enshrined in Part III of the Constitution, though in the eye of the law it would be a distinct and independent legal entity. As observed by Bhagwati, J., in Ajay Hasia's case (supra): "It is really the Government which acts through the instrumentality or agency of the Corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allow to obliterate the true nature of the reality behind which is the Government We cannot by a process of judicial construction allow the Fundamental Rights to be rendered futile and meaningless and thereby wipe out Chapter III from the Constitution. That would be contrary to the Constitutional faith of the past Maneka Gandhi era (1978) SCC 248". 117. Since then Bharat Petroleum Corporation Ltd. (vide Som Prakash Rekhi v. Union of India, AIR 1931 S. C. 212) , Indian Statistical Institute (vide B.S. Minhas v. Indian Statistical Institute, AIR 1984 S.C. 363 ) . Indian Council of Agriculture Research (vide P.K. Ramchandra Iyer v. Union of India, AIR 1984 S.U. 54 ) Sainik school Society (vide All India Sainik, schools Employees Association v. The Defence Minister-cum-Chairman. Board of Governors, Sainik School Society, New Delhi, AIR 1989 S.C. 88 have been held to be other authority" and ,'State" for the purpose of Article 12 of the Constitution. Board of Governors, Sainik School Society, New Delhi, AIR 1989 S.C. 88 have been held to be other authority" and ,'State" for the purpose of Article 12 of the Constitution. Lately, even the aided Schools receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection and who are subject to regulations have been held to be amenable to the writ jurisdiction of the High Court (See Vidya Dhar Pande v. Vidyut Grihshiksa Samiti and others, AIR 1989 S.C. 341 at p. 347 ). This is one aspect of the development of constitutional law in this country in the context of the fundamental rights guaranteed by Part III of the Constitution and the directive principles of State Policy contained in part IV in as much as the definition of the term "State" as contained in Article 12 of the Constitution applies both to Part III and Part IV of the Constitution. 118. Then it is also to be borne in mind that the Government has also entered into fields of industry. Beg C.J. in Bangalore Water Supply and Sewerage Board v. A. Rajappa and Others, AIR 1978 S.C. 548 (a Seven Judges Supreme Court Bench Judgment) observed : I do not feel happy about the use of the term "Sovereign" here............ Sovereignty operates on a Sovereign plane of its own .... .... .. . Again the term "Regal" from which the term "Sovereign" functions appears to be derived, seems to be a misfit in a Republic where the citizens share the political sovereignty in which he has even a legal share, however small, in as much as he exercises the right to vote. What is meant by the use of the term "Sovereign" in relation to the activities of the State, is more accurately brought out by using the term "governmental" functions although there are difficulties here also inasmuch as the Government has entered largely new fields of industry. Therefore only those services which are governed by separate rules and constitutional provisions, such as Articles 310 and 311 should, strictly speaking, be excluded from the sphere of industry by necessary implication. I am impressed by the argument that certain public utility services which are carried out by Government that, agencies or Corporation are treated by the Act itself as within the sphere of industry. I am impressed by the argument that certain public utility services which are carried out by Government that, agencies or Corporation are treated by the Act itself as within the sphere of industry. If express rules under other enactments govern the relationship between the State as an employer and its servants as employees it may be Contended, on or the strength of such provision that it a particular set of employees are outside the scope of the Industrial Disputes; Act for that reason. The special excludes the applicability of the general. We cannot forget that we have to determine the meaning of the term "industry" in the context of and for the purposes of matters provided for in the Industrial Disputes Act only." 119. In State of Rajasthan v. Mst. Widyawati, AIR 1962 S.C. 933 at page 938 , the Supreme Court said : It has to be remembered that under the Constitution we have established a welfare State, whose functions are not confined only to maintain law and order but extend to engaging in all activities including industry, public transport. State trading, to name only a few of them". 120. In Rajasthan State Electricity Board v. Mohanlal, ( AIR 1967 S.C. 1857 at p. 1863) , the Supreme Court said : 'Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article 19 (1) (g). In Part IV, the State has been given the same meaning as in Article 12 and one of the Directive Principles laid down in Article 46 is that the State shalt promote with special care the educational and economic interests of the weaker sections of the people... The State, as constituted by our Constitution is further specially empowered under Article 298 to carry on any trade or business". 121. It would be useful to quote some of the observations of Krishna Iyer J. (on behalf of himself, Bhagwati and Desai, JJ) in Bangalore Water Supply and Sewerage Board case (supra). He, in his un imitable style, echoed : 'Esoterica is an asthma for law affecting the common man in the commerce of life. ..............There are no absolutes in law since life, which it serves, is relative .... .... ....... .... The Courts too have a constituency the nation- and a manifest-the Constitution.................. He, in his un imitable style, echoed : 'Esoterica is an asthma for law affecting the common man in the commerce of life. ..............There are no absolutes in law since life, which it serves, is relative .... .... ....... .... The Courts too have a constituency the nation- and a manifest-the Constitution.................. But India is India and its individuality, in law and Society, is attested by its National Charter, so that statutory construction must be home-spun even if hospitable to alien thinking............ It is plain that merely because the employer is a Government department or a local body (and, a fortiori, a statutory board, Society or like entity) the enterprise does not cease to be an 'industry'. Although we are not concerned in this case with these categories of employees who particularly come under departments charged with the responsibility for essential constitutional functions of government, it is appropriate to state that if there are industrial units severable from the essential functions and possess an entity of their own it may be plausible to hold that the employees of those units are workmen and those undertaking are industries. A blanket exclusion of every one of the host of employees engaged by Government in departments falling under general rubrics like justice, defence, taxation, legislature may not necessarily be thrown out of the umbrella of the Act. We say no more except to observe that closer exploration, not summary rejection, is necessary ..... .... .... .... .... ............ ............... If education and training are integral to industrial and agricultural activities, such service are part of industry even if high brown may be unhappy to acknowledge it.... ............... Education is the nidus of industrialisation and itself is industry ................... To christen education as a mission even if true, is not to negate its being industry ................Indeed, medical relief for human beings made available by regular hospitals, employing doctors and supporting staff and business-like terms, may not qualify for exemption from industry ................Research institutes, albeit run without profit motive are industries ................clubs, speaking generally are social institutions enlivening community life and are the fresh breath of relaxation is a faded fudal society. They serve a section and answer the doubtful that of serving the community. They are industry .... .... .... Co-operative societies ordinarily cannot, we feel, outside Section 2 (j)............The consequences are (i) professions, (ii) clubs (iii) educational institutions, (iv) Co-operatives. They serve a section and answer the doubtful that of serving the community. They are industry .... .... .... Co-operative societies ordinarily cannot, we feel, outside Section 2 (j)............The consequences are (i) professions, (ii) clubs (iii) educational institutions, (iv) Co-operatives. (v) research institutes, (vi) charitable projects and (vii) other kindened adventures, if they fulfil the triple tests cannot be exempted from the scope of Section 2 (j) ...............Sovereign functions, strictly understood, (alone) qualify for exemption, not the welfare activities or a economic adventures undertaken by Government or statutory bodies. Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2 (j). Constitutional and completely enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby." 122. It is thus clear that economic adventures or welfare activities undertaken by Government or statutory bodies, corporated etc. fall within the term -industry" and that Government has by now progressively entered into the field of industry and is not confined to its erstwhile sovereign or Regal functions. 123. Again reverting to the jurisdiction of the High Court under Article 226 of the Constitution of India to issue writ in the nature of mandamus, let me quote Desai, J. in Ram and Shyam Company v. State of Haryana, (1985)3 SCC 267 at pages 274-275 (page 9) : Ordinarily it is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Article 226 where the pasty invoking the jurisdiction has an effective, adequate alternative remedy. More often, it has been expressly stated that the rule which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court ...................It should be made specifically clear that where the order complained against it alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that no appeal lies to the higher officer or the State Government .............. To whom do you appeal in a State administration against the decision of the Chief Minister ? To whom do you appeal in a State administration against the decision of the Chief Minister ? The Clitch of appeal from Caesar to Caesar's wife can only be bettered by appeal from one's own order to oneself." 124. It has to be very well kept in mind the nice distinction between ' jurisdiction" & "merits". Again in Comptroller & Auditor General of India v. K. S. Jagannathan, (1986)2 SCC 679 , that Article 226. is designedly couched in a wide language in order not to confine the power to issue prerogative writ, as understood in England The High Court exercising jurisdiction under Article, 226 can issue `directions; orders or writs' so as to enable the High Courts to reach injustice wherever it is found and to reliefs to meet the peculiar and complicated requirements of this country". 125. Then comes the question of applicability of rules of natural justice to orders which are administrative in character. The decision of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani Dei and Others, AIR 1967 S.C. 1269 recognised that : "It is true the order is administrative in character, but even on administrative order which involves civil consequences ................must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence." 126. In A.K. Kraipak's case, AIR 1970 S.C. 150 it was again reiterated : The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.. The aim of the rules of natural justice or to put it negatively is to prevent miscarriage of justice ........................If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rule should be made inapplicable to administrative enquiries ............... ...........An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry ............The law must, therefore, now be taken to be well-settled that even in administrative proceeding, which involves evil consequences, the doctrine of natural justice must be held to be applicable." 127. ...........An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry ............The law must, therefore, now be taken to be well-settled that even in administrative proceeding, which involves evil consequences, the doctrine of natural justice must be held to be applicable." 127. In M/s Arun Services Production Agency (P) Ltd v. Industrial Tribunal, Haryana, AIR 1979 S. C. 170 , it was stated that the power to make reference tinder Section 10 of the Act is discretionary and administrative in character. Law on the point, however, developed as would appear from the decision in Ram Avtar Sharma v. State of Haryana, AIR 1985 S.C. 915 , where the Supreme Court said : "While exercising power of making a reference under Section 10(l), the appropriate Government performs an administrative act and not a judicial or quasi judicial act .............................Every administrative determination must be based on grounds relevant and germane to the exercise of the power, and if it is not so, then it is liable to be questioned in exercise of the power of judicial review.........." 128. Again in M.P. Irrigation Karamchari Sangh v. State of Madhya Pradesh, AIR 1985 S. C. 860 , it was stated that there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Government should be very slow to attempt on examination of the demand with a view to decline reference and courts will always be vigilant whenever the Government at temps to usurp the powers of the Tribunal for adjudication of valid disputes. To allow the Government to do so would be to render Section 10 and Section 12(5) of the Industrial Disputes Act nugatory." 129. Reverting again to "natural justice", it would be opt to quote Madon J., in Union of India v. Tulsiram Patel, (1985)3 SCC 398 at page 470. :- "How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined ? Over the years by a process of judicial inter predation rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. :- "How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined ? Over the years by a process of judicial inter predation rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. They constitute the basic elements of a fair hearing having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is "memo judex in causa sua" or "memo debit ease judex in propria cause" as stated in Earl of Derby's case that is, 'no man shall be a judge in his own cause". The second rule-and that is 'audi alteram partem", that is, "hear the other side............ A corollary has been deduced from the above two rules and particularly the audi alteram pattern rule, namely, qui aliquid statuer it parte inaudita allera acqueem licent dixerit, hand acqum forcer it, that is, he who shall decide anything is that the other side having been heard, although he may have said what is right, will not have done what is right", or, in other words, as it is now expressed `justice should not only be done but should manifestly be seen to be done. 130. The above two rules and their corollary are neither new nor were they the discovery of English Judges." 131. Bhagwati, J., in Ashok Kumar Yadav and others v. State of Haryana and others, AIR 1987 SC 454 at page 467 observed : "We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of basis it is in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the justice actually biased or in fact decides partially, but whether there is a real likelihood of bias. The question is not whether the justice actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is object enable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice "must not only be done tut must also appear to be done and this rule has received vide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power in strick sense is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. .....The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare State where the jurisdiction of : administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner." 132. On bias Jaswant Singh J in Dr. G. Sarana v. University of Lucknow, ( AIR 1976 SC 2428 ) (at pp 243-233) said : -From the above discussion, it clearly follows that what has to be seen in a case where there is an allegation of bias in respect of a member of an administrative board or body is whether there is a reasonable ground for believing that he was likely to have been biased. In other words whether there is substantial possibility of bias animating the mind against the aggrieved party." Madon, J. observed in M/s J. Mohopatra & Co. and another v. State of Orissa and another, AIR 1984 SC 1572 , stated at page 1576 (para. 11) : "It is not, therefore, the actual bias in favour of the 'another member that is material but the possibility of such bias." 133. Let me then say about the content and reach of Article 14 of the Constitution. and another v. State of Orissa and another, AIR 1984 SC 1572 , stated at page 1576 (para. 11) : "It is not, therefore, the actual bias in favour of the 'another member that is material but the possibility of such bias." 133. Let me then say about the content and reach of Article 14 of the Constitution. The majority in K.P. Rayappa v. State of Tamil Nadu, AIR 1974 SC 555 said : From a positivetic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies, one belong, to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of article 14." 134. After the above discussion, let me analyse the result of my discussion as follows : (1)The ratio desidendi of the decision of their Lordships of the Supreme Court in the Premier Automobiles Ltd. v. Kamlakar Shantram Wadke and other, AIR 1975 SC 2238 , is only this that for the enforcement of a right or an obligation under the Industrial Disputes Act, 1947, the remedy provided uno flatu in it is the. exclusive remedy and the taking of cognizance of a civil suit for the enforcement of a right created under the Act by the Civil Court is, by necessary implication, barred. The remedy provided under the Act is not a misnomer. The decision in Premier Automobiles Ltd. case qua the jurisdiction of the High Court under Article 226 of the Constitution of India is relevant to the limited extent that for adjudication of an "industrial dispute" in connection with a right or obligation provided by the said Act, there is a remedy available to the petitioners to ventilate their grievance, and to obtain redress. (2) The purpose and scope of the Industrial Disputes Act, 1947 in the complex industrial world of today, is to protect legitimate trade union activities, to prevent unfair practice or victimisation, settlement of industrial disputes by conciliation, arbitration and adjudication, to prevent industrial unrest and to promote industrial peace. (2) The purpose and scope of the Industrial Disputes Act, 1947 in the complex industrial world of today, is to protect legitimate trade union activities, to prevent unfair practice or victimisation, settlement of industrial disputes by conciliation, arbitration and adjudication, to prevent industrial unrest and to promote industrial peace. On the one hand, the aim is to achieve socioeconomic justice by various methods and on the other is to secure that production may not be interrupted and that the community in general may be benefited. That is the reason behind active State intervention in settlement of industrial disputes. Had there been no State intervention, the labour could have ill-afforded to put a fight against capital, there would have been ram pat victimisation, industrial chaos and steep fall in production. Such a situation would have been highly detrimental to the social and economic interests of the community at large of a developing country like India. Owing to the individualistic nature and character of Indians collective bargaining has not been successful any the hope mainly rests on conciliation and compulsory adjudication. State intervention by section 10 does not make the provision contained in Section 10 (1) of the Act as discriminatory under Article 14 of the Constitution and also does not violate the fundamental right guaranteed by Article 19 (1) (f) and (g) of the Constitution of India. (3) The jurisdiction of the High Court under Article 226 of the Constitution is an original and exclusive jurisdiction but at the same time it is of extraordinary and special character. It is very wide but at the same time its exercise is of sound discretionary character. Krishna Iyer J., very rightly observed in Rohtas Industries Ltd. v. Rohtas Industrial Staff Union, ( 1976 1 LLJ 274 ) that "But it is one thing to affirm the jurisdiction, another to authorise its free excise like a bull in a China shop. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholes one inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. This Court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholes one inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered." I may specifically mention the observations of S.S. Sandhiwalia CJ in the Full Bench decision of the Patna High Court in Dinesh Prasad and others v. State of Bihar and others, (1985) 1 LLJ 343 at page 353 : "It seems vital for the sake of clarity of precedent to highlight at the very outset that today there is no manner of doubt that even the existence of an adequate and efficacious alternative remedy is not and indeed cannot be any inflexible legal bar to the entertainment of a writ petition. The constitutional power of the High Court under Article 226 is untrammelled by any surmountable limitation on its exercise. Therefore, the central issue herein is not the jurisdiction or the powers of the writ court, which as already noticed, is a constitutional power untrammelled by any limitation, but the self denying ordinance of the self restraint of the Judges in exercising such a power as a matter of policy and judicial discretion. The real issue herein only is as to what course of action is open to the suitor who is aggrieved by the wrong and what is the more appropriate forum in the first instance to which he must be directed. To repeat, the question is not at all with regard to the power of the writ court itself which admittedly is plenary." I fully subscribe to the abovequoted observations of Krishna Iyer J., in Rohtas Industries Ltd. case (supra) and that of S.S. Sandhawalia, CJ in Full Bench decision of Patna High Court in Dinesh Prasad's case (supra) as these observations are based upon well-settled precedents laid down in Election Commission, India v. Saka Ventaka Rao, AIR 1953 SC 210 . Union of India v. T.R. Verma, AIR 1957 SC 882 . Union of India v. T.R. Verma, AIR 1957 SC 882 . , Rashid Ahmed v. Municipal Board Kairana, AIR 1950 SC 163 , Dharangadhara Chemical Works Ltd. v. State of Saurashtra and others, AIR 1957 SC 264 , State of U.P. v. V. Mohammad Nooh, AIR 1958 SC 86 , A.V. Venkataswaran v. Ramchand Sobh Raj Wadhwani & anr., AIR 1961 SC 1506 , British India Steam Navigation Co. Ltd. v. Jasjit Singh, AIR 1964 SC 1451 and Babu Ram Prakash Chandra Maheshwari v. Antrim Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 . (4) The contention that the remedy provided by Section 10 of the Industrial Disputes Act or by Section 33-A or by section 33-C of the said Act are not remedies as a matter of right is an argument which deserve to be outrightly rejected. Similar argument was rejected by their Lordships of the Supreme Court in Nirmla Textile Finishing Mills Ltd. v. The 2nd Punjab Tribunal and others, AIR 1957 SC 329 and in Premier Automobiles case (Supra). It was clearly said that "it does not follow from all this that the remedy provided under the Act is a misnomer." Gajendragadkar, CJ clearly observed that', there in no scope for the argument that the appropriate Government would be in a position to discriminate one party and the other. There is no warrant for the suggestion that the discretion will be exercised by the appropriate Government arbitrarily or capriciously or so as to prejudice the interests of any of the parties concerned." It is very important to note that the power of the appropriate Government under Section 10 of the Act is administrative power and not a judicial or quasi-judicial power. The matter is governed by the decision of the Supreme Court in Telco Convoy Drivers Mazdoor Sangh & another v. State of Bihar & others, AIR 1989 SC 1665 , wherein Dutt, J., observed: "It is now well settled that while exercising power under Section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the its, which would certainly be in excess of the power conferred on it by section 1 of the Act. It is true that in considering the question of making a reference under section 10(1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended", as urged by Mr. Shanti Bhushan. The formation of opinion as to whether an industrial dispute 'exists or is apprehended" is not the same thing as to adjudicate the dispute itself on its merits........in considering the question whether a reference should be made or not, the Government have held that the convoy drivers are not workmen and, accordingly, no reference can be made. Thus the dispute has been decided by the Government which is. undoubtedly not permissible. There can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercises of its administrative function under Section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case, (AIR 1985 SC 850) there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivol is and do not merit a reference. Further the Government should be very slow to attempt an examination of the demand with a view to declining reference and the Court will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of the valid disputes, and that to allow the Government to do so would be to render section 10 and section 12 (5) of the Act nugatory. As the Government has persistently declined to make a reference under Section 10 (1) of the Act, we think that we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under Section 10 (1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. In several instances this Court had to direct the Government to make a reference under Section 10 (1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. (See Sankari Cement Atal Thozhiladar Munnetra Sangam v. Government of Tamilnadu (1983) 1 Lab L.J. 460 , Ram Avtar Sharma v. State of Haryana ( AIR 1985 SC 915 ) , M. P. Irrigation Karmachari Sangh v. State of M. P. ( AIR 1985 SC 860 ) , Nirmal Singh v. State of Punjab, ( AIR 1984 SC 1619 ) " This. decision very well safeguards the interests of the "aggrieved" against executive at literariness. (5) The power to refer under Section 10 (1) of the Act being only administrative in nature and not adjudicatory and the quasi-judicial adjudicating authority being different from the authority referring it cannot be said that the appropriate Government is judge in its own cause in "industrial disputes" where the employer is either the Government or a department of Government or a Government controlled Corporation or an instrumentality or agency of the Government. There is thus no violation of the principles of natural justice. Where power is vested in a very high authority like the "appropriate Government". It is presumed that the power would be exercised in a just and reasonable manner (See Laxmi Khandsari v. State of UP, (1981) 2 SCC 600 and S S. Maghe v. Union of India, (1981) 3 SCC 271 ) . Arbitrary refusal by the appropriate Government to refer the industrial dispute" for adjudication is always subject to judicial review. (6) As to efficaciousness of remedy, the Labour Court and Industrial Court have the power to grant all those reliefs and redresses as this Court grants under Article 226 of the Constitution. As stated by Krishna Iyer J , in Basti Sugar Mills Co. Ltd., case (1978) II LLJ 412 (419) industrial jurisprudence does not break nice nuances and torture same technicalities to stand in the way of just solutions, reached in a rough and ready manner". "An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair Pactice and victimisation" as held in Rohtas Industries Ltd. case (supra). "An industrial tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair Pactice and victimisation" as held in Rohtas Industries Ltd. case (supra). Even the standing orders certified under the Standing Orders Act of 1946 are liable to be challenged before and changed or altered by an Industry Tribunal on a reference being made to it under Section 10 of the Industrial Disputes Act, 1947 (see Management Bangalore Woollen Cotton and Silk Mills Co., Ltd. v. Workmen (AIR 1965 SC 595) , Management Shahdra (Delhi) Saharanpur Light Railway Co. Ltd. v. S.S. Railway Workers Union ( AIR 1969 SC 513 ) and Co-operative Central Bank Ltd. v. Additional Tribunal Andhra Pradesh ( AIR 1970 SC 245 ) . (7) As to speediness of the remedy, suffice it to state that the words it may at any time" in Section 10(1) of the Act are important, Section 10 of the Act is independent of section 12. It is not necessary that the procedure laid down in Section 12 regarding conciliation proceedings should be complied with before reference is made by the appropriate Government under Section 10(l). In urgent cases, the appropriate Government can at any time i.e. even when conciliation proceedings have not begun or are still pending, refer the dispute for adjudication. There is nothing in Section 10(1) of the Act to indicate that the appropriate Government has to wait for the conciliation officer's report under Section 12(4). Disputes arising under Section 25F, 25G and 25 are not such major industrial disputes as to call for reference to Conciliation Officer in each case. The apprehension that in all cases conciliation will have to be resorted to is not well founded. The words, it may at any time" will always come to rescue in urgent matters. Sub-section (6) of section 12 of the Act also sufessards delay by providing that a report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government". The words, it may at any time" will always come to rescue in urgent matters. Sub-section (6) of section 12 of the Act also sufessards delay by providing that a report under this section shall be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government". The Full Bench decision of this Court in Bhanwar Lal v. RSRTC 1984 RLR 619 at pages 670 and 671 para 170 (iii) has already laid down that if the Government refuses to make a reference either by not passing an order in a reasonable time, normally two months in individual cases and fifteen days notice in cases involving several employees together or refuses to refer by an express order, then this Court can always interfere under Article 226 of the Constitution. (8) The Full Bench decision in Bhanwar Lal's case (Supra), in paras 170(iii) 171 and in its operative part of the judgment, while giving answer to question No. 6 by majority, has again and again used the word normally" and this word "normally" is to be read in the light of and in accordance with the well-established judicial precedents of the Apex Court as specified and elucidated in item (3) supra by me. (9) Division Bench judgments of this Court in Satendra Singh Rathore v. Rajasthn Rajya Pathya Pustak Mandal, Jaipur (1988)2 RLR 308 and in Mahesh Chaudhary v. State of Rajasthan, 1987(II), RLR 680 are based on misreading of the judgment of the Full Bench in Bhanwar Lal's case (supra). It is well-settled that a subsequent Division Bench or single Bench cannot disagree with the previous decision of the Full Bench of the same Court (See Jai Kaur and others v. Sher Singh & others, AIR 1960 SC 1118 at pp 1122-23 and Kamalammal and others v. Venkatalakshmi Ammal and another, AIR 1965 SC 1349 at page 1358, para 21) . 135. Judged on the basis of the result arrived at by me at items Nos. 135. Judged on the basis of the result arrived at by me at items Nos. (1) to (9) supra after discussing the whole matter, the conclusion is irresistible that in all these 11 writ petitions, the respective petitioners have alternative, adequate and efficacious legal remedy available to them for the enforcement of the rights claimed by them under the Industrial Disputes Act, 1947 and the petitioners have to avail of and exhaust the alternative remedy before seeking to invoke the writ jurisdiction of this Court under Article 226 of the Constitution. All these 11 writ petitions are on this preliminary ground, hereby dismissed in limine.Petitions dismissed. *******