Chandrama Singh v. Managing Director, U. P. Cooperative Union, Lucknow
1991-05-16
D.S.SINHA, G.K.MATHUR, S.K.DHAON
body1991
DigiLaw.ai
JUDGMENT D.S. Sinha, J. - This Full Bench, is in substance, called upon to adjudicate upon the question as to whether a writ petition, under Article 26 of the Constitution of India, should or should not be entertained by the High Court where the cause of action for the petition emanates from the retrenchment of a workman in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 or Section 6-N of the U.P. Industrial Disputes Act, 1947, generally, and, on the facts and circumstances of this case specifically, notwithstanding the fact that an alternative remedy under the aforesaid Acts may be available to the petitioner. 2. Sections 25-F and 6-N ordain that no workman employed in any industry, who has been in continuous service for not less than one year under an employer, shall be retrenched by that employer until the conditions specified therein are fulfilled. The conditions contemplated by the sections are, generally, giving of one month's notice in writing disclosing the reasons for retrenchment or payment of wages in lieu of the period of notice, payment of specified compensation to the workman at the time of retrenchment and the service of notice upon the appropriate Government or specified authority in the prescribed manner. 3. Undoubtedly, if any workman is retrenched in violation of the conditions stipulated by Section 25-F or 6-N, such retrenchment would be illegal and every dispute arising therefrom would be an 'industrial dispute' as envisaged by sub-section (k) of Section 2 of the Industrial Disputes Act, 1947 and sub-section (1) of Section 2 of the U.P. Industrial Disputes Act, 1947 inasmuch as such dispute or difference between an employer and workman arising out of or in relation to retrenchment would necessarily be connected with the employment or the terms relating thereto. It may be noticed that expression 'an industrial dispute' within its sweep includes discharge, dismissal, retrenchment or otherwise termination of service of an individual workman also. 4. It cannot be gainsaid that Industrial Disputes Acts provide machinery and procedure for investigation and settlement of industrial disputes. For resolution of every industrial dispute, remedies and forms are provided under the Acts.
It may be noticed that expression 'an industrial dispute' within its sweep includes discharge, dismissal, retrenchment or otherwise termination of service of an individual workman also. 4. It cannot be gainsaid that Industrial Disputes Acts provide machinery and procedure for investigation and settlement of industrial disputes. For resolution of every industrial dispute, remedies and forms are provided under the Acts. In respect of dispute or difference springing from retrenchment of workman/workmen otherwise than in accordance with the provision of Sections 25-F and 6-N reference may be made to the forum envisaged under Sections 10 of the Industrial Disputes Act, 1947 or under Sections 4-K of the U.P. Industrial Disputes Act, 1947, as the case may be, in the manner prescribed by the Acts. 5. Ordinarily, remedy of reference, envisaged under the Industrial Disputes Act, is an adequate and efficacious remedy available to a person aggrieved by an illegal retrenchment. Of course, the aggrieved person can always prove that, on the facts and circumstances of his case, the remedy is neither adequate nor efficacious. But, unless he discharges the onus of proving that the remedy of reference is either inadequate or inefficacious he should pursue the remedy of reference under the Industrial Disputes Act. At this juncture, it would be pertinent to emphasise that it would not be enough for the person pleading inadequacy or inefficacy of the relief of reference under the Industrial Disputes Acts to make merely a bald statement that remedy of reference is either inadequate or inefficacious. It is imperative for him to clearly plead, demonstrate and prove as to how and in what manner the remedy of reference is inadequate or inefficacious, and in the absence of requisite pleading and material in support thereof it would not be permissible for him to raise the plea of inadequacy or inefficacy of the remedy of reference under the Industrial Disputes Acts. 6. Now, on the question of discretion of the High Court to decline to entertain a writ petition under Article 226 of the Constitution of India where an appropriate, adequate and efficacious remedy is available to the petitioner. In its decision rendered by a Bench of three Hon'ble Judges, presided by Hon'ble Mr.
6. Now, on the question of discretion of the High Court to decline to entertain a writ petition under Article 226 of the Constitution of India where an appropriate, adequate and efficacious remedy is available to the petitioner. In its decision rendered by a Bench of three Hon'ble Judges, presided by Hon'ble Mr. Justice Krishna Iyer, in K.K. Srivastava v. Bhupendra Kumar Jain, reported in AIR 1977 SC 1703 , the Hon'ble Supreme Court of India observed thus (at p. 1704 of AIR) :- "It is well settled law that while Article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hand off ....... Obviously, the Hon'ble Supreme Court has authoritatively and firml ruled that where appropriate or equally efficacious remedy is available to the petitioner the High Court must not entertain a writ petition under Article 26 of the Constitution of India. No doubt in the said case the Hon'ble Supreme Court pointed out that it did not go to the extent of stating that if there were exceptional or extraordinary circumstances the High Court should still refuse to entertain a writ petition. The Hon'ble Supreme Court purported to carve out an exception to the normal practice observed by the High Courts in relegating the petitioner to the alternative remedy available to him, the exception being existence of exceptional or extraordinary circumstances." 7. Referring to its decision in the case of K.K. Srivastava (supra) the Hon'ble Supreme Court, in its decision, rendered by a Bench of three Hon'ble Judges, in the case of Bar Council of Delhi v. Surjeet Singh, reported in AIR 1980 SC 1612 , pointed out that "If the alternative remedy fully covers the challenge ..... then that remedy and that remedy alone must be resorted to ......". The Hon'ble Court observed that "if the nature of the grounds of the challenge ...... are such that the alternative remedy is no remedy in the eye of law to cover the challenge, or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition ..... is still available ...." 8.
The Hon'ble Court observed that "if the nature of the grounds of the challenge ...... are such that the alternative remedy is no remedy in the eye of law to cover the challenge, or, in any event, is not adequate and efficacious remedy, then the remedy of writ petition ..... is still available ...." 8. The principle laid down by the Hon'ble Supreme Court of India that where a statute provides a complete machinery for obtaining a relief against the order passed by the authorities the petitioner should not be permitted to invoke the jurisdiction of High Court under Article 226 of the Constitution of India was noticed by the Hon'ble Supreme Court of India in its decision in the case of Gujarat University v. N.U. Rajguru, reported in AIR 1988 SC 66 wherein it referred to and relied upon the case of Sri K.K. Srivastava (supra). Delivering the judgment of the court his Lordship Hon'ble Mr. Justice K.N. Singh observed as follows (at p. 70 of AIR 1988) :- "We do not consider it necessary to burden the judgment by referring to decisions of this Court laying down the principle that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities a petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution ......" 9. Having regard to the above noticed decisions of the Hon'ble Supreme Court of India, it is ruled that where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redresssal of the grievance by the petitioner. 10. In the context of the controversy involved herein, it would be apposite to notice the decision of the Hon'ble Supreme Court of India, rendered by a Bench of five Hon'ble Judges, in the case of Basant Kumar Sarkar v. Eagle Rolling Mills Ltd reported in AIR 1964 SC 1260 .
10. In the context of the controversy involved herein, it would be apposite to notice the decision of the Hon'ble Supreme Court of India, rendered by a Bench of five Hon'ble Judges, in the case of Basant Kumar Sarkar v. Eagle Rolling Mills Ltd reported in AIR 1964 SC 1260 . In this case the controversy arose on account of curtailment of certain medical benefits of the workmen working in certain industries following the enforcement of the provisions of the Employees State Insurance Act, 1948, hereinafter called the "Act". Prior to the enforcement of the said Act the workmen were getting medical benefits of a very high order free of any charge in the hospitals maintained by the employees. Upon the enforcement of the Act, notices were issued to the workmen informing curtailment of their medical facilities being already enjoyed by them prior to the coming into force of the said Act. The workmen sought to agitate the dispute, springing from curtailment of their medical benefits, before the Patna High Court, through a writ petition under Article 226 of the Constitution of India. The High Court dismissed the petition on the finding that appropriate remedy to the workmen was to ventilate their grievances by taking recourse to Section 10 of the Industrial Disputes Act or by seeking relief, if possible, under Sections 74 and 75 of the Act. The decision of the Patna High Court was challenged before the Hon'ble Supreme Court of India and it, while rejecting the challenge of the workmen, confirmed the finding of the High Court that the proper remedy of the workmen was reference under Section 10 of the Industrial Disputes Act etc. 11. A Division Bench of this Court, to which one of us (Hon'ble S.K Dhaon, J.) was a party, in the case of Sri Pal Singh v. The Registrar, UP. Co-operative Societies, Lucknow, 1983 UPLBEC 456, declined to exercise the extraordinary jurisdiction under Article 226 of the Constitution of India on the ground of existence and availability of an alternative remedy under the Industrial Disputes Act. The writ petition purported to challenge the termination of the services of the petitioner alleging violation of the provision of Section 25-F of the Industrial Disputes Act, 1947 and Section 6-N of the U.P. Industrial Disputes Act, 1947. 12.
The writ petition purported to challenge the termination of the services of the petitioner alleging violation of the provision of Section 25-F of the Industrial Disputes Act, 1947 and Section 6-N of the U.P. Industrial Disputes Act, 1947. 12. There is yet another decision, which is relevant in the backdrop of the controversy involved herein, rendered by the Lucknow Bench of this Court in the case of Jai Kishan v. U.P. Cooperative Bank Ltd, Lucknow reported in (1989) 2 UPLBEC 144. This case pertained to the retrenchment of certain employees in violation of the provision of Section 25-F of the Industrial Disputes Act, 1947 and Section 6-N of the U.P. Industrial Dispute, Act, 1947. Although on the facts and circumstances of that case, the Court entertained the writ petitions, it held that "normally and in general, it will be appropriate that the workman who claims the relief on the basis of a right created under the Industrial Disputes Act should press into service the machinery as provided under the Industrial Disputes Act itself for redressal of his grievance...." The Hon'ble Judges who constituted the Bench further observed that "normally it is only appropriate for a workman to approach the Labour Court under the provisions of Industrial Disputes Act, 1947 for enforcement of his rights...." 13. The decision of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irrestible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India to be invoked if the petitioner has got alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and permit him to by pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India." The petitioner must furnish material facts and particular to sustain such a plea. 14.
14. On the pleadings contained in the instant petition the petitioner should not be allowed to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner had complained violation of the provision of Section 25-I of the Industrial Disputes Act, 1947 and for red-ressal of his grievance an adequate and efficacious remedy of reference under the provisions of Section 10 of the said Act itself exists. The petitioner has neither pleaded nor proved the said remedy to be inadequate or inefficacious. He has also not demonstrated the existence of any exceptional on extraordinary circumstances to permit him to bypass the alternative remedy available to him under the Industrial Disputes Act, 1947. The petition deserves to be dismissed on the ground of availability of alternative remedy to the petitioner. 15. During the course of hearing, attention of the Court was drawn to the application dated 23rd July, 1990 moved on behalf of Chandrama Singh, the petitioner, disclosing therein his desire to not to press this petition any more in view of the fact that an order reinstating him had already been passed and urging the court to dismiss the petition as withdrawn without answering the question referred to. We have proceeded to adjudicate the question referred to notwithstanding the application of the petitioner for dismissal of the petition as withdrawn in view of the importance of the question. 16. In view of the application dated 23rd July, 1990 praying the court to dismiss the petition as withdrawn, this petition shall stand dismissed as withdrawn.