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2015 DIGILAW 516 (CAL)

Tapan Kumar Sarkar v. Union of India

2015-06-19

SAMBUDDHA CHAKRABARTI

body2015
JUDGMENT : Sambuddha Chakrabarti, J. Alleging non-release of salary and allowances the petitioners have prayed for a writ in the nature of Mandamus commanding the respondents to release the same as well as making further payment of their monthly salaries till their superannuation and directing the respondents to release retiral benefits of the retired petitioners and for other reliefs. 2. The petitioners, 120 in number, are either serving or retired employees of M/s. Hindustan Cables Limited, a Government of India undertaking, i.e., the respondent no. 2 herein. They have alleged that the respondent no. 2 has not been making payment of their salaries and other allowances after attaining the age of 58 years though they continued or are continuing in service till attaining the age of 60 years. The age of retirement of the petitioners is 60 years and superannuation notices have also been issued to retiring employees a few months before their attaining that age. 3. While on the one hand the company retains employees on their roll upto the age of 60 years, the petitioners alleged, it has stopped making payment of salaries and other allowances after they attained the age of 58 years. The company had entered into a tripartite settlement with four unions in the year 1974 and the superannuation age of employees was fixed at 60 years. Since the petitioners are covered by the said settlement their age of retirement is also 60 years and not 58 years. As such they are entitled to continue till attaining the age of 60 years. 4. The Ministry of Industries, Government of India, issued an Office Memorandum through the Director of the company on May 19, 1998 raising the age of retirement in all public sector undertakings from 58 years to 60 years. The petitioners were already covered by the settlement of 1974. 5. According to the petitioners they came to know that the company by a resolution of the Board of Directors taken in its 276th meeting, held on March 28, 2001, proposed for reducing the age of retirement of its employees from 60 to 58 years. The Government of India had approved this reduction of age which should be implemented after amending the Standing Order in consultation with the Labour Department. The Standing Order had not till date been amended and the company also has allowed its employees to continue in service till 60 years. The Government of India had approved this reduction of age which should be implemented after amending the Standing Order in consultation with the Labour Department. The Standing Order had not till date been amended and the company also has allowed its employees to continue in service till 60 years. The petitioners have alleged that the tripartite settlement fixing the age of superannuation was reaffirmed in a bipartite meeting with four unions in the year 2007. It was inter alia resolved that the age of retirement prevailing before the Office Memorandum dated May 19, 1998 of the Ministry of Industries, Department of Public Enterprises came into effect, would be maintained. 6. The petitioners have further alleged that the action of the respondent company is violative of the principle of equal pay for equal work as the employees who have not attained the age of 58 years are getting their salaries whereas the petitioners despite their continuance in work are being or have been deprived of their salaries. According to them the bipartite settlement is binding upon the parties and thus the company is bound to allow the employees covered by the said agreement to allow them to work till they attain 60 years and pay salaries and allowances attached to the respective posts. The respondents also cannot back out from the promise regarding the age of superannuation as taken in the said settlement which has been annexed to the writ petition as Annexure P-4 and as such are statutorily obliged to go on paying the regular salaries and other allowances in service till the employees attain the age of 60 years. Non-payment of salaries for the period between 58 years and 60 years and payment of postretiral benefits taking into calculation the service rendered till the age of 58 years are hit by the principles of natural justice when their services have been obtained by the company. 7. With these allegations the petitioners have prayed for the reliefs as mentioned before. 8. The respondents nos. 2, 3 and 4 have contested the writ petition by filing an affidavit-in-opposition affirmed by the Deputy General Manager (P&A) of the respondent no. 2 company, Rupnarayanpur unit. The answering respondents have taken the point of maintainability of writ petition as when an employee retires from service his case is to be adjudicated separately. Each cause of action is separate. 2, 3 and 4 have contested the writ petition by filing an affidavit-in-opposition affirmed by the Deputy General Manager (P&A) of the respondent no. 2 company, Rupnarayanpur unit. The answering respondents have taken the point of maintainability of writ petition as when an employee retires from service his case is to be adjudicated separately. Each cause of action is separate. Those who had retired before February 16, 2009 the claim for back wages has been barred by limitation. Proper assessment of pay scale will depend on seniority and the number of years of service rendered. That apart, the writ petition raises issues of factual dispute and cannot be decided through a writ court. The claim of the petitioner is in the private law domain and as such the petition is not maintainable. 9. The respondent no. 2 company has been referred to BIFR. Therefore, recovery of back wages comes within the purview of recovery of money under Section 22 of the Sick Industries Companies Act, 1985 (SICA, for short). This being a special Act must prevail so far as the retiral dues are concerned and, therefore, without the sanction of BIFR claims of the petitioners cannot be settled. The respondents have taken a further point that since recovery of back wages comes under purview of Section 33(3)(c)(ii) of the Industrial Disputes Act (the Act, for short), subject to the provisions of SICA, the appropriate remedy for the petitioners is under that Act. Therefore, an equally efficacious alternative remedy available to the petitioners should bar the maintainability of the present writ petition. 10. Further case of the respondents is that every expenditure of the company is monitored by the Central Government as the entire fund is allotted by the Government of India. From the year 2003 there has been a total stoppage of operation at the concerned unit of the company and there is practically no work in connection with the main manufacturing activities. The concerned Ministry, therefore, had approved the reduction of age of the employees including the officers of the company from 60 to 58 years. Except this particular unit, workers of all other units retire at the age of 58 years. Threat and coercion of the trade unions prevented the management from putting in writing that the retirement age of the employees at the Rupnarayanpur unit had been reduced to 58 years. Except this particular unit, workers of all other units retire at the age of 58 years. Threat and coercion of the trade unions prevented the management from putting in writing that the retirement age of the employees at the Rupnarayanpur unit had been reduced to 58 years. The memorandum of settlement drawn up on August 20, 2001 which was in violation of the Presidential directive has been considered as invalid by the concerned Ministry. Since the petitioners do not have any legally enforceable right to work beyond the age of 58 years no claim pertaining to service conditions of the petitioners beyond that age is to be entertained by the company. 11. On May 19, 1998 an Office Memorandum was issued by the Ministry of Heavy Industries and Public Enterprises enhancing the age of superannuation of below Board level employees of central public enterprises from 58 to 60 years from the date on which the relevant rules and regulations were to be amended by the concerned establishments. 12. According to the respondents the age of retirement as per the Standing Order is 58 years. Subsequently, by a Presidential directive dated May 23, 2001, the Government of India instructed reduction of retirement age from 60 to 58 years which was a prime condition of pay revision in the year 1997 and the resolution of the Board of Directors to bring down the age of retirement of employees below Board level from 60 to 58 years received approval of the concerned Ministry. This order has never been challenged by the employees in any forum. As such it has attained a finality. But the concerned trade unions at the Rupnarayanpur unit compelled the purported agreement to be executed on August 20, 2001 to the effect that the age of retirement prevailing prior to the date of issue of the Office Memorandum would prevail and the Ministry by a letter dated Marcy 28, 2006 had intimated the company to roll back the retirement age since that had been effected in all the units of the company, except this particular unit. Even that order had not been challenged in any forum. Again by a letter dated June 9, 2006 the Ministry had informed the company that no financial assistance would be rendered towards payment of wages of employees who had attained the age of 58 years. Even that order had not been challenged in any forum. Again by a letter dated June 9, 2006 the Ministry had informed the company that no financial assistance would be rendered towards payment of wages of employees who had attained the age of 58 years. The Ministry has refused to entertain any requisition on the basis thereof for releasing the salaries and wages in respect of any employee who had already attained the age of 58 years. 13. On an earlier occasion, a Division Bench of this Court directed the company to pay the wage arrears of the employees who had rendered services to the company till 60 years. In default, and in the event the company was not able to bear the salaries, necessary financial assistance should be provided by the Union Government. 14. It has been the specific case of the respondents that although some of the petitioners who had attained the age of superannuation at 58 years and visited the office to ensure their engagement and recording of attendance were all aware that there was no scope of engaging them in any work in the unit. Even the officers of the company retire at the age of 58 years. It has been specifically denied that the petitioners were rendering effective service to the company at the concerned unit. There has been no work in the unit since the year 2003 and as such the question of rendering services beyond the age of 58 years is an untrue allegation. The extension of service for a period up to 60 years was not a matter of right. The employer has a duty to follow the certified standing orders and because of the decision of the Government of India to roll back the age of retirement the petitioners do not have any right to continue in service beyond 58 years and claim any salary and wages for the period after 58 years. The answering respondents further added, whether the petitioners had rendered actual service to the company is a disputed question of fact requiring appreciation of evidence and the same cannot be decided by way of a writ petition. The writ petition is not maintainable and is liable to be dismissed. 15. The petitioners have filed an affidavit-in-reply to the affidavit-in-opposition, largely reiterating their stands in the writ petition. The writ petition is not maintainable and is liable to be dismissed. 15. The petitioners have filed an affidavit-in-reply to the affidavit-in-opposition, largely reiterating their stands in the writ petition. They denied the allegation that the writ petition was stale and asserted that there was no question of the claim of the petitioners retiring before February 16, 2009 to be barred by limitation. 16. The petitioners have denied that the writ petition involves a disputed question of fact or it suffers from suppression or misrepresentation of material facts. The date of retirement being on record and the retiral notices having been served upon the petitioners there is no question of disputed facts. All the points taken by the respondents have already been adjudicated upon in the earlier writ petitions and the company made payment of the differential gratuity. It is now making the payment of arrears of salaries from 58 to 60 years to its retired employees who had moved the writ petition earlier. According to the petitioners, they are entitled to get the salaries from 58 to 60 years and the said company with the financial assistance of the Central Government is duty bound to make such payment. They have referred to the Standing Order of the company for its Rupnarayanpur unit which provides for continuity of service up to the age of 60 years rendering the stand of the company to be not sustainable. The petitioners have further stated that there was no question of apprehension of any law and order problem and the allegation to that effect has been denied by them. Since they served the company upto 60 years they are entitled to get their salaries and allowances till the age of their retirement. 17. Ms. Sengupta, the learned Advocate for the petitioners submitted that Labour Court is the executing court under Ss. 33(c)(1) and 33(c)(2) of the Act regarding monetary claim or benefits under a settlement or Award or under any pre-existing right. The petitioners are, therefore, enjoying a pre-existing right to get the arrears of salaries up to the age of 60 years and such claim does not require any adjudication. Since they have continued till 60 years, provisions of Section 33(c)(1) is more applicable than Section 33(c)(2) of the said Act. S. 33(c)(1) makes provision for making an application for any money due to a workman from an employer under a settlement etc. Since they have continued till 60 years, provisions of Section 33(c)(1) is more applicable than Section 33(c)(2) of the said Act. S. 33(c)(1) makes provision for making an application for any money due to a workman from an employer under a settlement etc. "without prejudice to any other mode of recovery". Again section 29 of the Act is also not applicable as it applies to a case of any breach of settlement. In this particular case, the respondents complied with the terms of settlement and allowed the petitioners to continue in service till they attain the age of 60 years. 18. Relying on the submissions of the respondents before the Division Bench, as mentioned in the supplementary affidavit, Ms. Sengupta argued that it is evident that a conciliation did take place but no dispute was referred to the Industrial Tribunal. The employees first approached the Conciliation Officer who sent a failure report to the appropriate Government. The appropriate Government ordered that the dispute could not be construed as an industrial one. 19. Ms. Sengupta submitted that the stand taken by the respondents brings it out very clearly that by invoking the proceedings under S. 33(c)(2) of the Act they have admitted the claim of the petitioners based on pre-existing rights. Since the salary is a property and a constitutional right, the right to get remuneration for an act done is also a fundamental right. Similarly, the right to receive retiral benefits and interests on delayed payment of Gratuity are also fundamental rights. The remedy under S. 33(c)(2) is in addition to such as exists under the Act or any other law. The object of S. 33(c)(2) is to provide a speedy remedy. 20. In support of their contentions the petitioners have relied on the case of C. K. Iypunny v. R. N. Kulkarni, reported in AIR 1964 Bom. 188 . A Division Bench had held that the object of S. 33(c) is to provide a speedy remedy to employees for realisation of their rights. Ordinarily its operation cannot be restricted to only such settlements or Awards as had been made under the Act. It is true that S. 33(c) has a very limited application. But S. 33(c)(2) has wider application. A Division Bench had held that the object of S. 33(c) is to provide a speedy remedy to employees for realisation of their rights. Ordinarily its operation cannot be restricted to only such settlements or Awards as had been made under the Act. It is true that S. 33(c) has a very limited application. But S. 33(c)(2) has wider application. Thus, an employee is entitled to claim relief under that section in respect of the benefit under a contract or any standing order and if these are included within its ambit, there is no reason why a benefit under an Award made under the Bombay Industrial Relations Act should not be within it. 21. Ms. Sengupta further relied on the case of S. K. Dua v. State of Hariyana and Another, reported in (2008) 3 SCC 44 . In that case retiral benefits were given to the appellant after four years. The Supreme Court held that the appellant would be entitled to interest on such benefits. Even in absence of any statutory rules or administrative instructions or guidelines an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution of India. Retiral benefits are not in the nature of bounty. 22. With regard to the point of alternative remedy taken by the respondents, Ms. Sengupta relied on the case of Bisram Arak v. Eastern Coalfields Limited, reported in 2006(2) CLJ (Cal) 427 where a learned Single Judge of this Court has observed that since the point of availability of alternative remedy was not recorded on the date the writ petition was admitted, the Court cannot permit the respondents to contradict the contents of that order and the point must be presumed to have not been taken at the threshold. The question of maintainability of the writ petition on the ground that alternative remedy was available cannot be permitted to be raised at the final hearing since it was not taken at the very threshold and since it does not take away the jurisdiction of the Court altogether. 23. Ms. Sengupta further relied on the case of Board of Directors, ASCARD Bank Limited and Others v. Baharul Islam and Others, reported in 2004(102) FLR 107 . 23. Ms. Sengupta further relied on the case of Board of Directors, ASCARD Bank Limited and Others v. Baharul Islam and Others, reported in 2004(102) FLR 107 . In that case a Division Bench of Gauhati High Court had approved the admission of the writ petition instead of directing the parties to approach the Industrial Tribunal for adjudication of the dispute which would have been a normal course for the courts to adopt when an alternative and efficacious remedy was provided. It may be mentioned that in that case the termination of the employees services was contrary to law and the court had held that the learned Single Judge had rightly entertained the writ petition. 24. The petitioner next relied on the judgement in the case of Whirlpool Corporation v. Registrar of Trademarks, Mumbai and Others, reported in (1998) 8 SCC 176 for a proposition that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 can still be entertained in exceptional circumstances. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quowarranto and Certiorari for the enforcement of any fundamental right contained in Part III of the Constitution but also for "any other purpose". Under Article 226 of the Constitution of India the High Court has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the existence alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, viz., where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 25. The above view has also been reiterated by the Supreme Court in the case of Rajasthan State Electricity Board v. Union of India, reported in (2008) 5 SCC 632 . 25. The above view has also been reiterated by the Supreme Court in the case of Rajasthan State Electricity Board v. Union of India, reported in (2008) 5 SCC 632 . There also the Supreme Court had held that it was a settled principle of law that availability of alternative remedy was not an absolute bar for granting relief in exercise of power under Article 226 of the Constitution of India. The Supreme Court held that the High Court, in that particular case, had erroneously rejected the claim on the ground of availability of alternative remedy. As the respondent had admitted the liability, the High Court ought not to have relegated the appellant to the alternative remedy and should not have dismissed the writ petition on that ground. On the said proposition of law the petitioners have further relied on the case of BALCO Captive Power Plant Mazdoor Sangh and Another v. National Thermal Power Corporation and Others, reported in (2007) 14 SCC 234. The Supreme Court had reiterated the settled position of law that alternative remedy is a rule of discretion and not the rule of law. The Supreme Court had held that in that case the claim of the employees related to interpretation of certain clauses in the agreement and appointment letters and no disputed facts were involved. The Apex Court had also taken note of the fact that the issue related to employment of hundreds of employees and in the light of the assertion that transferring them to private organisation from a Public Sector Undertaking without their specific consent it was held to be arbitrary and unreasonable. 26. Ms. Sengupta submitted that an employee has always an option to choose the forum not only when he alleges violation of Article 14 but even in a case falling under the Act. For this submission she placed strong reliance on the case of Mehar Chand Das v. Lal Babu Siddique and Others, reported in (2007) 14 SCC 253 . In that case the Supreme Court held that where an employee maintains a writ petition not only on the ground of violation of Article 14 of the Constitution of India but also on the ground of violation of the provisions of Act, 1947, he has an option to choose his own forum. 27. In that case the Supreme Court held that where an employee maintains a writ petition not only on the ground of violation of Article 14 of the Constitution of India but also on the ground of violation of the provisions of Act, 1947, he has an option to choose his own forum. 27. Again in the case of M.P. State Agro Industries Development Corporation Limited and Another v. Jahan Khan, reported in (2007) 10 SCC 88 the Supreme Court held that there was no gainsaying that in a given case the High Court might not entertain a writ petition under Article 226 of the Constitution of India on the ground of availability of an alternative remedy. But the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of alternative remedy is a rule of discretion and not one of compulsion. Again in the case of Harbanslal Sahnia and Another v. Indian Oil Corporation Limited and Others, reported in (2003) 2 SCC 107 the Supreme Court observed with regard to the view taken by the High Court that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. The Supreme Court reiterated the circumstances where the writ jurisdiction can be invoked. 28. Ms. Sengupta submitted that the Central Government is paying for salaries and allowances for its employees up to the age of 58 years. Therefore, it cannot avoid the responsibility towards the employees of the central Government undertakings, while in BIFR, for release of salaries etc. In this connection she has relied on the case of Kapila Hingorani v. State of Bihar, reported in (2003) 6 SCC 1 . In the background of non-payment of salaries for a very long time to the employees of state-owned corporations, public sector undertakings or statutory bodies in the State of Bihar and in the context of death of several employees due to starvation or self-immolation a question cropped up whether the Sate of Bihar could escape its liability having regard to human rights problem involved in the matter. The Supreme Court held that in a situation such as this the Court is obligated to issue necessary directions to mitigate the extreme hardship of the employees involving violations of human rights of the citizens of India at the hands of the State of Bihar and Government companies and corporations fully owned and controlled by it. A right to carry on business is subject to compliance of constitutional obligations as also limitations provided in the Constitution. Financial stringency may not be a ground for not issuing requisite directions when a question of violation of fundamental rights arises. The Government companies being States would be constitutionally liable to respect life and liberty of a person in terms of Article 21 of the Constitution. They, therefore, must do so in cases of their own employees. 29. It has been the further submissions of the petitioners that since the benefit has been given to a set of employees the respondents should have granted the benefit to all who are similarly circumstanced and they are not entitled to discriminate. Ms. Sengupta relied on the case of Sristidhar Biswas v. State of West Bengal, reported in (2001) 1 CHN 524 where a learned Single Judge of this Court has held that since the writ petitioners in that case were similarly circumstanced with other two groups thereof they should not be deprived of the similar benefit simply on the ground that they were not made parties to the earlier writ petition. With reference to the facts of that case, it was observed that when the respondents could not justify their action in the other two proceedings they could not re-agitate those issues. The learned Single Judge thus observed that the court was not competent to reopen the issues which have once been decided and such decision has been given effect to by the respondents. 30. Ms. Sengupta further relied on the case of Life Insurance Corporation of India and Others v. Retired L.I.C. Officers Associations and Others, reported in (2008) 3 SCC 321 . 30. Ms. Sengupta further relied on the case of Life Insurance Corporation of India and Others v. Retired L.I.C. Officers Associations and Others, reported in (2008) 3 SCC 321 . It was observed in that judgment also that when a benefit is extended to a group of employees the effect of such benefit, if otherwise comes within the purview thereof, must be held to be applicable to other groups of employees also on a principle of law that all consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Based on this observation, the petitioners argued that when a benefit has been granted to a group of employees the respondents cannot deny the same to other employees as well. 31. Again, the petitioners placed heavy reliance on the case of Indian Drugs and Pharmaceutical Limited v. Workman, Indian Drugs and Pharmaceutical Limited, reported in (2007) 1 SCC 408 where the Supreme Court drew a distinction between a temporary employee and a permanent employee. It was held that where a permanent employee has a right to the post a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation unless he is dismissed or removed after an enquiry or his service is terminated due to some other valid reason. 32. Ms. Sengupta has taken a further point in favour of the jurisdiction of this court to entertain a petition of the present nature by invoking its writ jurisdiction. She reiterated a very well-settled principle of law that under Article 226 of the Constitution of India every High Court has a power to issue orders or writs for the enforcement of fundamental rights or for any other purpose. She reiterated a very well-settled principle of law that under Article 226 of the Constitution of India every High Court has a power to issue orders or writs for the enforcement of fundamental rights or for any other purpose. In the case of Grid Corporation of Orissa and Others v. Rasananda Das, reported in (2003) 10 SCC 297 , the Supreme Court held that although the service conditions of employees could not be changed to their disadvantage by reducing their scales of pay or taking away other service benefits, it cannot be understood as depriving of the benefit of higher scale of pay to them as given to the other employees of the same employer. The appellants in that case having given better pay-scale as early in 1969 cannot reduce the pay-scales when it comes to granting pensionary/retiral benefits for the period between the age of 58 and 60 years. When the employees continue to work upto the retirement age of 60 years their pay scales cannot be reduced for the period between 58 and 60 years. 33. Ms. Sengupta argued that the acts impugned in the writ petition amounts to a case of clear discrimination between two sets of employees and the respondents cannot be permitted to continue with the same to the deprivation of the benefits of the petitioners. Union of India and Another v. R.G. Kashikar and Another, reported in AIR 1986 SC 431 has been relied on by the petitioners for a proposition that a classification or a differentiation of the Instructors under the scheme as a class of central Government employees for depriving them of the benefits in matters relating to employment which expression includes matters relating to salary, periodical instruments, leave gratuity, pension, age of superannuation etc, although they continue to remain central Government employees till the date of absorption, was per se discriminatory and violative of Articles 14 and 15 of the Constitution of India. 34. Ms. Sengupta next relied on the case of B. Prabhakar Raw and Others v. State of A.P. and Others etc., etc., reported in AIR 1986 SC 210 . There the Supreme Court had held that in industrial law, courts do award back and future wages on quite large scale and there is no reason why courts cannot adopt the same principle in a writ petition. There the Supreme Court had held that in industrial law, courts do award back and future wages on quite large scale and there is no reason why courts cannot adopt the same principle in a writ petition. If as a rule private employers are asked to pay back wages there is no impediment in doing so in the case of those who are expected to be model employers i.e., the Government, public corporations and legal authorities. 35. Sanjit Roy v. State of Rajasthan, reported in (1983) 1 SCC 525 has been cited by the petitioners for a proposition that the rights of all workers will be the same, whether they are drawn from an area affected by drought and scarcity conditions or come from elsewhere. The mere circumstance that a worker belongs to a certain area affected by drought and scarcity of condition can in no way influence the scope of those rights. 36. Ms. Sengupta further argued that under Section 22(1) of SICA protection is available only against action which comes within the ambit of the term. If action does not fall within the ambit of the suit no protection is available and a writ petition for recovery of salary and retiral benefits are not barred under Section 22. In support of her contention, she relied on the case of Inderjeet Arya and Another v. ICICI Bank Ltd., reported in (2014) 2 SCC 229 . In that case the preliminary issue which came up for consideration before the High Court was whether the protection under Section 22(1) of SICA could be extended to the appellants in their capacity as guarantors of debt owned by M/s. Rajat Pharmachem Pvt. Ltd. The High Court held that protection of Section 22(1) would not be available to the appellants who were directors and guarantors of the sick industrial companies. The Supreme Court approved the view taken by the High Court and held that the appellants who are guarantors could obtain the protection of Section 22(1) of SICA only if the action filed by the bank came within the ambit of the suit. If the action filed by the respondent bank is in the nature of any proceeding and not a suit protection under Section 22(1) would not be available, especially when the appellants are guarantors. 37. Based on the said judgment Ms. If the action filed by the respondent bank is in the nature of any proceeding and not a suit protection under Section 22(1) would not be available, especially when the appellants are guarantors. 37. Based on the said judgment Ms. Sengupta argued that it was not necessary for the petitioners to move the appropriate forum under SICA or under the Act. The respondent company here is a central Government undertaking and Union of India is making payment of salaries. The company was holding gratuity upto 60 years and made payment of differential gratuity from its own fund to other similarly placed retired persons. The common thread that binds all the petitioners is that they retired at the age of 60 years but received salary up to the age of 58 years. 38. Mr. Arunava Ghosh, the learned Advocate for the respondents nos. 2 to 4 submitted in line with their stand in their affidavit-in-opposition. 39. I have heard and considered the respective submissions of the parties and the judgments cited at the bar. The crux of the problem can be reduced to a proposition i.e., whether the petitioners who had although have been working or have worked in the respondent company after reaching the age of 58 years are entitled to get their salaries and other benefits for the period between 58 and 60 years. 40. The settlement referred to by the petitioners was first a tripartite and then a bipartite settlement under the Act. The other foundation of the petitioners case seems to be an order passed by the Division Bench of this court on November 13, 2011. 41. Mr. Ghosh has taken a point that the writ petition has been filed without seeking redressal by way of a demand of justice made to the respondents. The petitioners have relied on the demands made by them asking for the release of arrear payments and other benefits. Even if they do not strictly qualify for a demand of justice in substance they had, at least some of them, raised their demands repeatedly. In such view of it, it may be a little too technical at this stage to insist on a formal demand of justice which is to be submitted before a writ petition is filed. That will be giving too high a premium to the technicalities. 42. In such view of it, it may be a little too technical at this stage to insist on a formal demand of justice which is to be submitted before a writ petition is filed. That will be giving too high a premium to the technicalities. 42. The objection of the respondents that the company is under BIFR and, therefore, recovery of back wages comes within the purview of mischief of recovery of money under Section 22 of SICA does not appear to be a very substantial one. Mr. Ghosh has argued that SICA being a special Act will prevail over other Acts so far as recovery of money from a sick company is concerned and, therefore, it is the BIFR which will have the ultimate say in the matter of recovery of money from the company. This court, therefore, has no jurisdiction to decide the matter which is within the absolute domain of the SICA. Since SICA is a later Act and a special Act any claim for payment of money will have to be made before the SICA. 43. I have considered the submissions of Mr. Ghosh. However, in view of the ratio decided in the case of Indrajeet Arye and Another (supra) the maintainability of the writ petition cannot be declined on this particular defence. 44. Another limb of the respondents stand is that the petitioners had based their claims on the settlement under the Act. Mr. Ghosh submitted that since the ultimate prayers of the petitioners centre round the claims associated with the money and the benefits derived under the said Act it should be adjudicated by a labour court and no other forum. Not even the High Court has any jurisdiction to decide the same. According to Mr. Ghosh, it should be improper to view it as a case of an alternative remedy. On the contrary, it is ultimately a question of jurisdiction. If the labour court has the jurisdiction to decide the case High Court must not assume jurisdiction in a writ petition. According to the respondents since the Act requires such a dispute to be adjudicated in a labour court that is the forum to be approached. 45. Mr. Ghosh reiterated a very well-settled principle that if law requires a certain thing to be done in a certain manner it should be done in that manner or not at all. According to the respondents since the Act requires such a dispute to be adjudicated in a labour court that is the forum to be approached. 45. Mr. Ghosh reiterated a very well-settled principle that if law requires a certain thing to be done in a certain manner it should be done in that manner or not at all. Prabhashankar Dube v. State of MP, reported in (2004) 2 SCC 56 , Kunwar Pal Singh (Dead) by LRS. v. State of UP and Others, reported in (2007) 5 SCC 85 , Ramchandra Murarilal Bhattad and Others v. State of Maharashtra and Others, reported in (2007) 2 SCC 588 and Ram Phal Kundu v. Kamal Sharma, reported in (2004) 2 SCC 759 are some of the authorities on the proposition of law that if power is given to an authority to do a certain thing in a certain manner that thing must be done in that manner or not at all. The point is so very wellsettled for about last eight decades that it needs no elaboration. 46. Relying on the case of General Manager, Sri. Siddeshwara cooperative Bank Ltd. and Another v. Ikbal and Others, reported in (2013) 10 SCC 83 . Mr. Ghosh next argued that the petitioners ought to have first exhausted the statutory remedy. In that case, the Supreme Court had held that alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. But by now it is wellsettled that where a statute provides for efficacious and adequate remedy High Court will do well not to entertain a petition under Article 226 of the Constitution of India. On misplaced consideration, statutory procedure cannot be allowed to be circumvented. With reference to the facts of that case, the Supreme Court held that there was no justification whatsoever for the High Court to allow the borrower to bypass the efficacious remedy provided in the concerned Act and invoke extraordinary jurisdiction in his favour when he had disentitled himself to such relief by his conduct. The single Judge was clearly in the error in invoking his extraordinary jurisdiction under Article 226 of the Constitution of India in the light of the particular facts indicated in that petition and the Division Bench also erred in affirming the erroneous order. 47. The single Judge was clearly in the error in invoking his extraordinary jurisdiction under Article 226 of the Constitution of India in the light of the particular facts indicated in that petition and the Division Bench also erred in affirming the erroneous order. 47. The jurisdiction of the writ court to entertain a dispute or a claim arising out of any settlement with regard to wages is not maintainable, Mr. Ghosh argued. In the case of Kerala State of Electricity Board and Another v. Kurien E. Kalathil and Others, reported in (2000) 6 SCC 293 it has been held that a writ court is not ordinarily the proper forum for the resolution of a dispute arising out of the terms of a contract with statutory bodies. The interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment is not a question of construction of contract. If a term of a contract is violated ordinarily the remedy is not a writ petition under Article 226 of the Constitution of India. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. The dispute relating to interpretation of terms and conditions of a contract cannot be agitated in a writ petition. Whether any amount is due and, if so, whether refusal of the company to pay is justified or not, are not matters which could have been agitated and decided in a writ petition. 48. As a pure proposition of law and if one proceeds logically this argument of Mr. Ghosh is perhaps impregnable. If the age of superannuation in respect of all the units of the respondent company is 58 years, there is no reason for the Rupnarayanpur unit to make it an expectation. The petitioners have not been able to provide any reason why the Rupnarayanpur unit alone was made an exception. 49. That apart, Mr. Ghoshs submission on the point of alternative remedy is also a very substantial one. Ms. Sengupta relied on the settlement arrived between the parties. The petitioners have not been able to provide any reason why the Rupnarayanpur unit alone was made an exception. 49. That apart, Mr. Ghoshs submission on the point of alternative remedy is also a very substantial one. Ms. Sengupta relied on the settlement arrived between the parties. S. 36A of the Act provides that in the case of any difficulty or doubt as to the interpretation of any provision of an award or settlement, the appropriate Government may refer the question to such labour court, tribunal or national tribunal as it may think fit and the said court or tribunal shall decide such issue after giving the parties an opportunity of being heard. Therefore, when the issue raised in the writ petition is with regard to a dispute touching on interpretation of the settlements i.e., whether the enhanced scale of pay should be given to the employees retiring at the age of 60 years, it should have been raised before the appropriate Government to be referred to the labour court. If the appropriate Government declined to refer the matter to a labour court, as submitted by Ms. Sengupta, it was open to the petitioners to challenge the same to the higher forum. The Unions themselves having raised an industrial dispute cannot subsequently put upon it a different hue. 50. Moreover, if the claim of the petitioners is the violation or breach of the terms of settlement S. 29 of the Act is immediately pressed into service and the case of the petitioners in substance being violation of the terms of settlement also gives jurisdiction to the labour court to deal with it. 51. Again the submission of Ms. Sengupta does not appear to be very entirely tenable that a writ petition once admitted cannot be dismissed on the ground of availability of alternative remedy. The old view on the point has undergone a very substantial change in more recent times. In the case of State of Uttar Pradesh and Another v. Uttar Pradesh Rajya Khanij Vikash Nigam Sangharsh Samity and Others, reported in (2008) 12 SCC 675 , the Supreme Court observed that it is not a legal proposition that once a petition is admitted it cannot be dismissed on the ground of alternative remedy. 52. Thus from the standpoint of pure law and absolute logic the petitioners ought to have approached an industrial forum. 53. 52. Thus from the standpoint of pure law and absolute logic the petitioners ought to have approached an industrial forum. 53. However, the petitioners not having done so it may operate rather harshly against them to dismiss the writ petition at the final stage of hearing. After all, it cannot be glossed over that while admitting the writ petition the question of maintainability was not kept open. It is true that the Supreme Court had observed, as mentioned above, that it is not a legal proposition that once a petition is admitted it cannot be dismissed on the ground of alternative remedy. But it has also not been laid down as an inflexible proposition that the existence of an alternative remedy must necessarily lead to the dismissal of a writ petition irrespective of the nature of dispute, the stage of the proceeding and the issues involved in the lis. 54. There is one more factor which the respondents could not successfully dislodge. A Division Bench Judgment in favour of a set of employees similarly circumstanced must tilt the fate of the case in favour of the petitioners. Many former employees of the concerned unit of the respondent company had moved a writ petition ventilating an identical grievance as with the present one. The appellate Bench of this Court by an order dated September 13, 2011 in FMA 1715 of 2011 (Dhirendranath Mondal and Others v. Union of India and Others) had given the relief as prayed for in favour of those writ petitioners. 55. Mr. Ghosh has argued that the said order does not operate as a binding precedent inasmuch as the issues raised in this writ petition were not before the Division Bench in that appeal. In other words, the order of the Division Bench cannot be read to be a decision on the points taken by the respondents in the present writ petition. 56. While this argument is factually substantial, it is equally to be borne in mind that the order of the Division Bench approached the issue from a point and with facts which equally apply to the present case. 57. In the earlier case, several office orders were issued by the competent authority of the respondent company relating to the retirement of employees on attaining the age of superannuation. 57. In the earlier case, several office orders were issued by the competent authority of the respondent company relating to the retirement of employees on attaining the age of superannuation. The court observed that the employees were allowed to retire with effect from particular dates as mentioned in respective office orders and, therefore, were entitled to receive admissible salaries and allowances till the date of retirement. The Division Bench further held that since no industrial court was agitating the issue relating to the age of retirement the employees who had already retired pursuant to the respective office orders could not be deprived of their retiral dues. The appellate Bench in that case on the basis of the documents issued by the respondent company directed it to calculate and disburse the admissible dues to the employees. 58. Unsuccessful Special Leave Petitions and subsequent review applications before the Supreme Court were followed by an intimation given by the respondent company that it had approached the Union of India for the requisite fund for release of the arrear salaries and allowances of those employees for the period of service between 58 and 60 years. By a letter dated August 13, 2013, written by the Manager (P&A and Legal) of the respondent company to the Under Secretary, Ministry of Heavy Industries & Public Enterprises, Department of Heavy Industry, Government of India, the respondent company had requested the Head Office of the company to arrange for Rs. 14.66 corers for payment to those ex-employees as per the direction of the court. And, therefore, the addressee of the said letter was requested to provide financial assistance to the tune of Rs. 14.66 corers for making the said payment. 59. The reason that weighed with the Division Bench in passing the order was the existence of office orders fixing the date of retirement of the employees involved in the said appeal at the age of 60 years. From the Supplementary Affidavit filed by the petitioners, it appears that for the present set of petitioners similar office orders were issued and their dates of retirement were fixed only upon attaining the age of 60 years. Although the Division Bench in the said appeal did not very specifically spell out it appears to have proceeded on the doctrine of estoppel by conduct on the part of the respondents. 60. Although the Division Bench in the said appeal did not very specifically spell out it appears to have proceeded on the doctrine of estoppel by conduct on the part of the respondents. 60. It is true that the issues raised by the respondents in this writ petition were not argued before the Division Bench. But it is truer that these issues certainly could be raised while defending a case with identical fact situation. Since parties to two proceedings are different the doctrine of constructive res judicata will not apply; but the respondents will most certainly be hit by the principle analogous to issue estoppel. 61. If in one case in respect of 241 employees estoppel by conduct, if not admission of their entitlement to receive their dues till the age of 60 years, was the principal causative factor for passing an order in their favour, in respect of other set of employees it will not be very fair to send them to an industrial forum at the concluding stage of the present proceeding. Technical legalese must give way to larger issues of equity and parity of treatment between two identically circumstanced groups of employees. Thus, when one set has got the relief from court on the ground of existence of certain circumstances, the existence of those circumstances must be said to be a clinching factor in favour of the other set of employees as well. If by the order of a court certain benefit has been extended to some employees the other group of employees cannot be deprived of the same in a subsequent proceeding, if other factor remain unaltered. 62. That is what the principle of a case decided, commonly known as a precedent, is all about. Prof. R. W. M. Dias in his classic text Jurisprudence (London, 1964) described it in the briefest possible nutshell: "The ratio decidendi of a case, like every proposition of law, contemplates some situation of fact, and its determination therefore involves ascertaining the material facts to which it applies. Needless to say, the choice of these facts by the deciding judge is important, though it does not conclude the matter." (p. 50). Thus when a decision of a higher authority is rendered on point A, other factors being common in a subsequent proceeding the existence of A must be reckoned to be the binding ratiocination for the latter case. 63. Thus when a decision of a higher authority is rendered on point A, other factors being common in a subsequent proceeding the existence of A must be reckoned to be the binding ratiocination for the latter case. 63. In more recent times Prof. Paton in A Text Book of Jurisprudence (4th Edition, Oxford; 1st Indian Edition, 2004) also admitted, "If the same question arises in subsequent proceedings in a subordinate court, they will bind the court to decide the question in the same way. This involves the very core notion of a precedent system: that questions ought to be decided today in the same way as they were decided yesterday simply because they were decided that way yesterday" (p. 211). 64. Any view different from the same apart from being contrary of the age-old process of judicial decision making, is likely to offend Article 14 of the Constitution and violate the fundamental rights of the petitioners to be treated alike with similarly circumstanced employees. 65. I venture not to risk either. 66. I thus, allow the writ petition and direct the respondent company to take necessary steps for payment of admissible dues to the petitioners who have already retired from service and to release the unpaid salaries and allowances to the petitioners who are still in service and to go on paying the same till they attain the age of superannuation. Such steps are to be taken within a period of ten weeks from the date of the communication of the order. 67. Needless to mention, if necessary, the respondent no. 1 shall provide the requisite financial assistance to the respondent company for making necessary payment to the writ petitioners in terms of this order if the respondent no. 1 is otherwise obliged to bear the financial burden of the company in this regard. 68. There shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities. Later:- After the delivery of Judgment Mr. Ghosh, the learned Advocate for the respondent nos. 2 to 4 prays for stay of the operation of the order. Since 10 weeks time has already been granted to the respondents for implementation of the order, the prayer is rejected.