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2017 DIGILAW 1266 (ALL)

RAMBALI SINGH v. FOOD CORPORATION OF INDIA

2017-05-11

MAHESH CHANDRA TRIPATHI, V.K.SHUKLA

body2017
JUDGMENT : Petitioner-appellants who are 64 in number are before this Court, assailing the validity of the order dated 10.03.2017 passed by the learned Single Judge in Civil Misc. Writ Petition No. 9379 of 2017 (Ram Bali Singh and 63 others v. State of U.P. and others) wherein learned Single Judge has proceeded to negate the challenge so made against the order passed terminating their services as workman, working with Food Corporation of India. 2. Brief facts of the case in brief are that the Food Corporation of India has various warehouses. One such warehouse is at Kosi Kala, District Mathura wherein petitioner-appellants claim to have been performing and discharging their duties. Mention has been made that for carrying out work at Kosi Kala, District Mathura practise that has been prevailing was that labours were engaged through contractors and said practise in question had been prevailing since several year and ultimately in 1994, the contract labour system was abolished in that particular unit leading to dispute raised by the various labours Union to the effect that all those labours who have been performing their duty on contract basis should be re-employed by the Food Corporation of India under direct payment system and be regularised with the Food Corporation of India. In this direction, it appears that bipartite settlement dated 16.05.1994 was entered resulting into final Memorandum of Settlement in between FCI as well as F.C.I. Workers Union to re-employee 250 workers on 28.06.1995, and in this direction the Union was endeavouring that the list submitted by them of such workman, working on contract basis be accepted. In this regard exercise was required to be undertaken to identify genuine labourers employed by earlier contractor, for the purposes of being offered appointment. As there has been serious issue on the said score, and there has been no consensus arrived at upon the list so prepared by the Food Corporation of India, list of labourers had been prepared. Said list has been subjected to challenge in writ petition being Civil Misc. Writ Petition No. 22652 of 1998 by F.C.I. Mazdoor Sangh. Said writ petition was finally decided by this Court vide judgement dated 09.09.1998 asking the Assistant Labour Commissioner (Central), Kanpur to enquire into the genuineness of the labours, who were actually engaged with the Food Corporation of India on contract basis after considering the claim of all concerned. Writ Petition No. 22652 of 1998 by F.C.I. Mazdoor Sangh. Said writ petition was finally decided by this Court vide judgement dated 09.09.1998 asking the Assistant Labour Commissioner (Central), Kanpur to enquire into the genuineness of the labours, who were actually engaged with the Food Corporation of India on contract basis after considering the claim of all concerned. Said order has been subjected to challenge in various Appeals, leading one being Special Appeal No 873 of 1998 and Division Bench of this Court while hearing the bunch of writ petitions, refrained themselves from interfering with the judgement of learned Single and re-affirmed the view taken by the learned Judge asking the parties to appear before the Assistant Labour Commissioner with regard to genuineness of labours, who were actually working on contract basis earlier under the contract system. The period of appearance before the Assistant Labour Commissioner were extended on 30.11.2006. Pursuant to the aforesaid judgement in question, Assistant Labour Commissioner finalised the list of 166 genuine labourers who were earlier engaged on contract basis vide order dated 20.06.2007 and mention has been made that only those labours were genuine labours, who were employed with Food Corporation of India on contract basis. 3. There has been claim and counter claim, as initially list in question was settled for 316 and ultimately on negotiation being made the workers Union arrived at a number of 250. Out of 250, 210 were handling labours and 40 ancillary labours. Assistant Labour Commissioner based on inquiry conducted by him, concluded that these 166 Labours alone were genuine labours. 4. Record in question reflects that Civil Misc. Writ Petition No. 46672 of 2007 had been filed challenging the competence of Assistant Labour Commissioner to decide the matter on the ground that the time period provided in the order dated 30.11.2006 of the Division Bench had expired and therefore the Assistant Labour Commissioner (Central) ceased to have any authority to decide the matter. This Court vide order dated 11.02.2009 disposed of the aforesaid writ petition No. 46679 of 2007 with a direction to the Labour Commissioner to examine as to whether the Assistant Labour Commissioner had travelled beyond the direction given by High Court. The Labour Commissioner was further directed to decide the matter within one month and ensure compliance within one month thereafter. The Labour Commissioner was further directed to decide the matter within one month and ensure compliance within one month thereafter. Regional Labour Commissioner (Central), Kanpur passed an order dated 01.05.2009 whereby the objections raised by the respondents were rejected and the report dated 20.06.2007 of the Assistant Labour Commissioner (Central), Kanpur was upheld. Thereafter respondents F.C.I. preferred Writ Petition Nos. 27550 and writ petition No. 27549 of 2009 on 21.05.2009 against the order dated 01.05.2009 passed by the Regional Labour Commissioner (central) Kanpur, with a further prayer for issuance of a writ of mandamus commanding the RLC not to implement its own order. The High Court vide order dated 27.05.2009 dismissed the aforesaid writ petition No. 27550 of 2009 and 27549 of 2009, holding the same being devoid of merits. In the year 2009 the respondent no.1 corporation preferred a Special Appeal No 1115 of 2009 against the order dated 27.05.2009 passed by the learned Single Judge in Civil Misc. Writ Petition No. 27550 and Writ Petition No. 27549 of 2009 on the ground that the Assistant Labour Commissioner (Central) had passed ex-parte order as the FCI had not appeared before the ALC (C) and further that the FCI had moved a recall application with a prayer to decide the matter on merits. Vide order dated 09.09.2009 the Division Bench of this Court disposed of the special appeal. On 24.11.2009 the Assistant Labour Commissioner (Central), Kanpur rejected the claim of the FCI as to the pendency of any recall application. In fact the ALC (C) found that there was no recall application on the record. In the year 2010 the respondents filed Civil Misc. Writ Petition No. 4604 and 4608 of 2010 against the order dated 24.11.2009 passed by the Assistant Labour Commissioner (Central), Kanpur whereby the claim of the FCI to the effect that the restoration/recall application filed by the FIC was pending and the same deserved first to be decided, was rejected. Vide order dated 03.02.2010 the learned Single Judge of Allahabad High Court dismissed the aforesaid writ petitions No. 4604 and 4608 of 2010, holding the petitions devoid of any merits as the Assistant Labour Commissioner (Central), Kanpur had rightly dismissed the claim of the FCI as no recall application was found by the ALC (C) on record. Vide order dated 03.02.2010 the learned Single Judge of Allahabad High Court dismissed the aforesaid writ petitions No. 4604 and 4608 of 2010, holding the petitions devoid of any merits as the Assistant Labour Commissioner (Central), Kanpur had rightly dismissed the claim of the FCI as no recall application was found by the ALC (C) on record. The High Court, however, granted liberty to the FCI to take appropriate legal measures as may be advised to it or move any further application which may be considered proper. Pursuant to the grant of liberty by the High Court vide order dated 03.02.2010 the respondents moved an application on 20/21.01.2011 before the Assistant Labour Commissioner (Central), Kanpur requesting the aforesaid authority to take necessary action in the restoration application already filed by the FCI. The Assistant Labour Commissioner (Central), Kanpur dismissed the application dated 20/21.01.2011 of the FCI, holding the same to be wholly misplaced. Vide order dated 11.05.2011 the High Court was pleased to dismiss the writ petition No. 26953 of 2011 filed by the FCI against the order dated 14.03.2011 of the ALC. In the year 2011 the respondent preferred a special appeal No. 1558 of 2011, challenging the order dated 11.05.2011 of the Single Judge of Allahabad High Court. However, the vide order dated 06.05.2014 the Division Bench dismissed the special appeal No. 1558 of 2011. The order dated 06.05.2014 passed by the Division Bench was challenged by the respondents by way of SLP No. 15849 of 2014 in the Apex Court. However, the Apex Court vide order dated 03.11.2014 dismissed the aforesaid S.L.P. 5. However, the vide order dated 06.05.2014 the Division Bench dismissed the special appeal No. 1558 of 2011. The order dated 06.05.2014 passed by the Division Bench was challenged by the respondents by way of SLP No. 15849 of 2014 in the Apex Court. However, the Apex Court vide order dated 03.11.2014 dismissed the aforesaid S.L.P. 5. After all these proceedings have been undertaken, this much is reflected that show cause notice has been issued to the petitioner appellants informing therein that the order dated 20.06.2007 passed by Assistant Labour Commissioner (Central), Kanpur has been upheld by this Court as well as the Apex Court and since petitioner-appellants are not the member-workmen of F.C.I. Mazdoor Sangh in the list of workmen/labours, identified by ALC(C), Kanpur, petitioner-appellants are not genuine labour and your engagement/appointment at the initial state is illegal and unjustified in the eye of law and your services are liable to be terminated forthwith and petitioner-appellants in their turn submitted their reply and thereafter, order has been passed by the Area Manager mentioning therein that as petitioners-appellants were not a member of the Food Corporation of India Majoor Sangh in the list of workmen/labours, identified by ALC, Kanpur and accordingly the services in question are terminated. 6. At this juncture, petitioner-appellants came to this Court by preferring Civil Misc. Writ petition No. 9397 of 2017 and the learned Single Judge in his wisdom has proceeded to non suit the claim of the petitioner appellants and mention has been made that dispute so raise is industrial dispute which can suitably be dealt with under U.P. Industrial Dispute Act, 1947 and feeling dis-satisfied with the aforementioned dismissal, present Special Appeal is before us. 7. 7. Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri Yogesh Kumar Sinha, Advocate and Sri Chandan Kumar, Advocate, learned counsel for the petitioner-appellants contended with vehemence that in the present case order of termination of service is in breach of provision as contained under Industrial Disputes Act, 1947, inasmuch as Section 25-N of the U.P. Industrial Disputes Act, 1947 prescribes certain condition preceding to be fulfilled by the employer before retrenchment of workman, and in the present case without complying with the pre requisite terms and condition, disengagement order has been passed and as such order of retrenchment so passed, is illegal and void ab-initio, and accordingly as said order has direct live connection with the livelihood of the petitioner-appellants, as such action taken on its face value is clearly violative of Article 21 of the Constitution of India, in view of this, Special Appeal deserves to be allowed. 8. Sri S.K. Mishra, Advocate as well as Sri Vinay Kumar Pandey, learned counsel for the respondent no. 4 and respondent No.1 respectively on the other hand contended that dispute in question is primarily an Industrial Dispute, and in the present case whatever action has been taken, same is consequential action qua the action that has already been approved by Apex Court and petitioner-appellants cannot claim as a matter of right then when the list of workman stood finalised by Apex Court even then they should be permitted to continue, and once disputed question of fact involved, qua the status of petitioner-appellants to be a workmen then remedy of petitioner-appellants is to approach the Industrial Court and such a writ petition has rightly not been entertained. 9. After respective argument has been advanced, factual situation on which there is no dispute that show-cause notice has been issued to the petitioner-appellants to show cause and thereafter in reference to each one of the petitioner-appellants, order dated 31.01.2017 has been passed. For ready reference one of such order is being extracted below :- FOOD CORPORATION OF INDIA DISTRICT OFFICE-572, RAMGHAT ROAD ALIGARH, U.P.-202001 No. FCI/ALG/Kosikalan/Termination-Induction/2015-2016 Order Whereas Sri/Smt. Rambali Singh Designation: Sardar (old Gang No. 06) presently posted as FSD Durg who was inducted into FCI on an agreement between Food Corporation of India and FCI Workers Union in 16.05.1994, However, the controversy had arisen to identify the genuine labours. FCI Majdoor Sangh filed Writ C No. 22652 of 1998 challenging the communication dated 22.06.1998 in the Allahabad High Court. While disposing the writ petitions, the High Court vide order dated 09.09.1998 directed the Assistant Labour Commissioner (Central), Kanpur to identify the genuine labours, within two months. The order dated 09.09.1998 was challenged in the Special Appeal by FCI Majdoor Sangh and FCI Workers Union in respect of two depots namely Kosikalan and Quarshi Depot of FCI. The Division Bench of the High Curt in the Special Appeal upheld the order dated 09.09.1998 vide its order dated 30.11.2006, but extended the time for identification of the labours up to 10.03.2007. Ultimately, the ALC(C), Kanpur vide ex-parte order dated 20.06.2007 identified the old and genuine labourers, who were working and entitled for engagement. The order was challenged by FCI before the Allahabad High Court by filing writ petition No. 46679 of 2007, which was decided with the liberty to the FCI to approach to Labour Commissioner(Central), Kanpur, who shall examine the objection of FCI. The RLC(C) Kanpur vide order dated 01.05.2009 rejected the objection raised by the FCI and upheld the order dated 20.06.2007. The FCI again approached the Allahabad High Court challenging the order of 2009, but the High Court vide order dated 27.05.2009 dismissed the aforesaid writ petition. The FCI further challenged the judgement and order dated 27.05.2009 passed by the High Court Allahabad by filing Special Appeal No 967 of 2009. Special Appeal was also dismissed with the direction to the ALC(C), Kanpur that if any restoration application is pending before him, as claimed, he shall dispose of the same expeditiously, preferably within 2 months. The ALC(C), Kanpur rejected the application filed by FCI. FCI again challenged the ex-parte order dated 20.06.2007 passed by ALC)C), Kanpur and subsequent orders dated 14.01.2011 and 14.03.2011 by filing Writ C No.26953 of 2011. This writ petition was also dismissed vide order dated 11.05.2011. Special Appeal CC No. 1558 of 2011 was preferred by FCI against the order dated 11.05.2011 but the same was also dismissed by the High Court, against which Special Leave Petition No. 15849 of 2014 preferred by FCI had also been dismissed by Supreme Court, which had also been dismissed. Thus, the order dated 20.06.2007 passed by the ALC(C), Kanpur had been upheld by the High Court and the Supreme Court. Thus, the order dated 20.06.2007 passed by the ALC(C), Kanpur had been upheld by the High Court and the Supreme Court. On seeing the above mentioned series of litigation, it is evident that your induction at initial state is not genuine and accordingly a show cause notice dated 09.01.2016 was issued to you. Your reply against SCN has been received and examined by undersigned and so contentions mentioned in your reply have been addressed as under :- On reviewing reply, contentions mentioned by you is not relevant at this juncture as the matter has already been decided by Supreme Court vide its order dated 03.11.2014 and order dated 20.01.2015 which infers that a list of workers finalised by ALC, Kanpur vide his order dated 20.06.2007 is the genuine workers in the eyes of law and upheld the said order. Also order dated 30.11.2006 by Division Bench of High Court had been given opportunity to all claimant in the matter before ALC(C), Kanpur to represent their say, but during the proceedings held by ALC(C), Kanpur, you had not represent your claim for genuineness which was neither in person nor by you union. Since the matter was under litigation from year 1998 and FCI participated and fought the matter up to Supreme Court leave, now it is liability for FCI to implement the orders passed by Hon'ble Court. Also there is pendency of contempt petition namely 385 of 2012 in the matter for compliance of such orders passed in the matter. Hence, by saying the contention that dismissal from Supreme Court does not imply to implement the order dated 20.06.2007 is nor acceptable and liable to reject. In view of the above series of litigation FCI had taken all required and suitable steps to safeguard the position of yourself at all Forums and Courts of Judicature, so by saying concealment of litigation has never been a party in the matter does not justify your contention and liable to be rejected. Hence in view of above, all contentions raised in hour reply are found irrelevant and not satisfactory to consider you plea in the light of litigation in the matter. Hence in view of above, all contentions raised in hour reply are found irrelevant and not satisfactory to consider you plea in the light of litigation in the matter. As you are not the member/workman of the FCI Majdoor Sangh in the list of workmen/labourers, identified by ALC(C), Kanpur and therefore not a genuine labour and you engagement/appointment at the initial stage is illegal and unjustified in the eye of law and you services are liable to be terminated. Since you induction was under this office by delegation of power's to Area Manager, Aligarh, by exercising the same power's, you are hereby terminated from the services of Food Corpora tin of India in compliance to the orders passed by courts and Forums. I, Shamsherul Haque, Area Manager, FCI Do Aligarh being, the Competent Authority, hereby terminate the services of Sri Rambali Singh from the service of Food Corporation of India with immediate effect. The terminal benefit Gratuity is being forfeited in view of above position. Receipt of this order may be acknowledged. Sigh illegible (Shamsherul Haque) Area Manager. 10. Perusal of order quoted above along with all other similarly worded order would go to show that each one of the petitioner-appellant has worked under contract labour system and thereafter petitioner-appellants claim to have been inducted into F.C.I. on an agreement between Food Corporation of India and F.C.I. Workers Union on 28.06.1995. Petitioner appellants own case is that 210 workers out of 318 who were earlier working under contract labour system, were brought under Direct Payment System and list of 210 workers inclusive of petitioner-appellants was initially submitted. Such an action has been subjected to challenge on the ground that F.C.I. in connivance with F.C.I. workers Union took decision to appoint wrong set of person. In the challenge so made, pursuant to directive issued by this Court, identification exercise for identifying genuine labour has been undertaken, and in said proceeding, when the list has been so finalised, name of petitioner-appellants is not at all there. The challenge to list finalised, has failed up to Apex Court level. The order in question that has been so passed by the Food Corporation of India is not an individual order, rather fact of the matter is that a full fledged exercise has been undertaken for identification of labour and ultimately old and genuine labourers have been identified who were entitled for engagement. The order in question that has been so passed by the Food Corporation of India is not an individual order, rather fact of the matter is that a full fledged exercise has been undertaken for identification of labour and ultimately old and genuine labourers have been identified who were entitled for engagement. In such a situation, this much is reflected that identical show cause notice dated 09.01.2016 has been issued to the petitioner-appellants to which they have proceeded to submit their response, and mention has been made in this background that petitioner-appellants are not genuine labour and their engagement-appointment at initial state is illegal in the eye of law and accordingly services are liable to be terminated. Order impugned in writ petition are clearly fall out of earlier exercise that has been so undertaken and that has been ratified up till the Apex Court, in view of this, if consequential action has been taken on the spot, the same in this peculiar backdrop cannot be faulted. 11. Much emphasis has been laid on the fact that full fledged mechanism has been provided for retrenchment under Industrial Disputes Act, 1947 but same has not at all been ad-hered to; Under Section 2(oo) of Industrial Disputes Act, 1947 "retrenchment" has been defined as under :- "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')" 12. Under Section 25F of the Industrial Disputes Act, 1947 conditions precedent to retrenchment of workmen have been provided; Section 25F of the Industrial Disputes Act is being quoted hereunder for the kind perusal of this Hon'ble Court. "25F. Conditions precedent to retrenchment of workmen. Under Section 25F of the Industrial Disputes Act, 1947 conditions precedent to retrenchment of workmen have been provided; Section 25F of the Industrial Disputes Act is being quoted hereunder for the kind perusal of this Hon'ble Court. "25F. Conditions precedent to retrenchment of workmen. 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. (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman ha been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part there of in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette). 13. Based on these provisions, it has been contended that once case in hand was one that of retrenchment, in such a situation as provisions of Section 25-F of Industrial Disputes Act, 1947 has not at all been complied with therefore, retrenchment bringing termination, was void ab-initio and accordingly, declaration in this regard should be made, and consequential benefits be extended. Based on these provisions, it has been contended that once case in hand was one that of retrenchment, in such a situation as provisions of Section 25-F of Industrial Disputes Act, 1947 has not at all been complied with therefore, retrenchment bringing termination, was void ab-initio and accordingly, declaration in this regard should be made, and consequential benefits be extended. Mention on the other hand has been made by F.C.I. before us that in the backdrop of present case, as the very entry of the petitioner-appellants has been found to be doubtful and declaration has already been made in this regard as in the of genuine members that list has been approved upto the Apex Court name of petitioner-appellants is not at all there, then consequential action so taken cannot be assailed and fact of the matter is that case in hand is one wherein petitioner-appellants intend to get them included in the list of genuine member and in such a situation once petitioner-appellants are not at all workmen of the establishment concerned, the provisions of Section 25-F was not at all liable to be complied with in the facts of case and accordingly petitioner appellants should first get declaration from Industrial Court, that they are workmen of the establishment concerned, and accordingly, remedy of petitioner-appellant was to approach the Industrial Court instead of being before this Court. 14. From the side of petitioner-appellants reliance has been placed on judgement rendered in the case of Jai Kishun and others, etc. v. U.P. Cooperative Bank Ltd. Lucknow and others, etc. (1989) 2 UPLBEC 144. Relevant paragraph nos. 50 and 51 are as follows :- 50. In several decisions cited in the earlier part of this judgement, the Hon'ble Supreme Court has been pleased to observe that the order terminating the cases of a workman in contravention of the provisions contained under Section 25-F of the Industrial Disputes Act is void. If an order is null void, it has no existence in the eyes of law. For this reason too, we feel that an alternative remedy would be no far in entertaining a petition. In this connected, we may refer to a case reported in AIR 1987 SC page 2186; 1987 UPLBEC 734 (SC) Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others. For this reason too, we feel that an alternative remedy would be no far in entertaining a petition. In this connected, we may refer to a case reported in AIR 1987 SC page 2186; 1987 UPLBEC 734 (SC) Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur and others. In this case, the Hon'ble Supreme Court was pleased to observe that it is well settled that an alternative remedy is not an absolute bar to the maintainability of a petition. It was also found that the order passed by the Vice Chancellor was without any authority of law and was a nullity. Such an order can very well be challenged in the High Court and the High Court was not justified in dismissing the writ petition on the ground of alternative remedy. We are, therefore, of the opinion that if an order is void and the petition does not involve controversial questions of facts, the High Court may not refuse to exercise its jurisdiction. In the case of Olga Tellis and other v. Bombay Municipal Corporation and others, reported in AIR 1986 SC 130, the Hon'ble Supreme Court has held that Article 21 of the Constitution which protects life and liberty of a citizen, also protects his right to livelihood. If a person is deprived of his livelihood against the procedure prescribed, it will offend Article 21 of the Constitution of India. In the resent cases, admittedly while bring about the cessation of the employment of the petitioners, the employer socialites did not follow the procedure established under the law, namely, the UP. Industrial Dispute Act. 51. On the question of alternative remedy, we may refer to yet another judgment of the Hon'ble Supreme Court in the case of Dhari Gram Panchayat v. Saurashtra Mazdor Mahajan Sangh and another, reported in (1997) 4 SCC 213, in which it has been held that if the High Court finds any action to be mala fide it can directly interfere with the action and grant relief under Article 226 of the Constitution of India notwithstanding that the remedy is available under the Industrial Act. The order of retrenchment was found to be malafide. The order of retrenchment was found to be malafide. The observation is ......" On the finding that the action of the Panchayat was mala fide, the High Court could have directly interfered with the retrenchment of the workman under Article 226 of the Constitution if the workman had straightway approached the Court without raising an industrial dispute." We have cited the above case only to indicate that it is not necessary that a workman must always resort to the provisions of the Industrial Disputes Act for redressal of his riddance against his retrenchment. There may still be cases where it will be appropriate to exercise jurisdiction under Article 226 of the Constitution. In yet another case reported in 1985 UPLBEC page 789 Dr. Surendra Kumar Shukla v. Union of India and others, a Division Bench of this Court observed that an order passed in contravention of Article 25-F of the Industrial Disputes Act is null and void and as such an action offends the rights of a workman protected under Article 21 of the Constitution of India. In these circumstances, it was thought appropriate to entertain the writ petition and not to throw it out on the ground of alternative remedy. 15. From the side of Food Corporation of India insistent has been made to relegate the matter to the Industrial Court by placing reliance on judgement rendered by Apex Court in the case of U.P. State Bridge Corporation Ltd and others v. U.P. Rajya Setu Nigam S. Karamchari Sangh (2004) 4 SCC 268 has held. Relevant paragraph nos. 11, 14 and 15 are as follows :- 11. We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent-Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well the UPIDA, 1947. The rights and obligations sought to be enforced by the respondent-Union in the writ petition are those created by the Industrial Disputes Act. In The Premier Automobiles Ltd. v. Kemlekar Shantaram Wadke 1976 (1) SCC 496 , it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act. In The Premier Automobiles Ltd. v. Kemlekar Shantaram Wadke 1976 (1) SCC 496 , it was held that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the claimant is to get adjudication under the Act. This was because the Industrial Disputes Act was made to provide "a speedy, inexpensive and effective forum for resolution of disputes arising between workmen and their employers. The idea has been to ensure that the workmen do not get caught in the labyrinth of civil courts with their layers upon layers of appeals and revisions and the elaborate procedural laws, which the workmen can ill afford. The procedure followed by civil courts, it was thought, would not facilitate a prompt and effective disposal of these disputes. As against this, the courts and tribunals created by the Industrial Disputes Act are not shackled by these procedural laws nor is their award subject to any appeals or revisions. Because of their informality, the workmen and their representatives can themselves prosecute or defend their cases. These forums are empowered to grant such relief as they think just and appropriate. They can even substitute the punishment in many cases. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the High Court under Article 226 as also to the jurisdiction of this Court under Article 32, but they are extraordinary remedies subject to several self-imposed constraints. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created by the Act and not in a civil court. That is the entire policy underlying the vast array of enactments concerning workmen. This legislative policy and intendment should necessarily weigh with the courts in interpreting these enactments and the disputes arising under them". 14. Finally, it is an established practise that the Court exercising extraordinary jurisdiction under Article 226 should have refused to do so where there are disputed questions of fact. In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. Admittedly, when the matter was pending before the High Court, there were 29 such projects under execution or awarded. According to the respondent-workmen, they were appointed as regular employees and they cited orders by which some of them were transferred to various projects at various places. In answer to this the appellants' said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always under compulsion to engage local people of the locality where work was awarded. There was as such no question of transfer of any workman from one project to another. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent-workmen. 15. There was also a dispute as to the nature of the absence of the respondent-workmen. Correspondence said to have been exchanged between the parties with regard to the demands raised by the respondent-Union has been relied upon by the respondent in support of the submission that the absence was really on account of a strike. It is also submitted that the correspondence indicated that notice of the strike had been given. To counter the statement made in the writ petition by the respondent that the workmen were on strike, the appellants had said that no notice of strike had been given and, therefore, the strike, if any, was illegal. Significantly, the High Court has not relied upon the correspondence nor has it come to any decision on the question whether the strike was illegal or legal. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of the respondent workmen from work was because they were on strike. 16. In fact the High Court has proceeded on the basis that it was the accepted case that there was no notice given by the workmen that they were on strike. It cannot, therefore, be said, without more, that the absence of the respondent workmen from work was because they were on strike. 16. Apex Court in the case State of U.P. and another v. U.P. Rajya Khanij Vikas Nigam S.S. and others 2008 (12) SCC 675 has held. Relevant paragraph nos. 50, 51, and 52 are as follows :- 50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside. 51. For the foregoing reasons, the appeal deserves to be allowed and the order passed by the High Court is liable to be set aside and is accordingly set aside. 52. Since we are of the view that one of the Hon'ble Judges of the Division Bench of the High Court which decided the matter at the initial stage was right in relegating the petitioners to avail of alternative remedy under the Industrial Law and as we hold that the High Court should not have entertained the petition and decided the matter on merits, we clarify that though the writ petition filed by the petitioners stands dismissed, it is open to the employees to approach an appropriate Court/Tribunal in accordance with law and to raise all contentions available to them. It is equally open to the Corporation and the State authorities to defend and support the action taken by them. It is equally open to the Corporation and the State authorities to defend and support the action taken by them. As and when such a course is adopted by the employees, the Court/Tribunal will decide it strictly in accordance with law without being influenced by the fact that the writ petition filed by the writ petitioners is dismissed by this Court. 17. Apex Court in the case of K.K. Saksena v. International Commission on Irrigation and Drainage and others (2015)4 SCC 670 has held. Relevant Para no. 50 is as follows :- 52. It is trite that contract of personal service cannot be enforced. There are three exceptions to this rule, namely: (i) when the employee is a public servant working under the Union of India or State; (ii) when such an employee is employed by an authority/body which is a State within the meaning of Article 12 of the Constitution of India; and (ii) when such an employee is 'workmen' within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and raises a dispute regarding his termination by invoking the machinery under the said Act. In the first two cases, the employment ceases to have private law character and 'status' to such an employment is attached. In the third category of cases, it is the Industrial Disputes Act which confers jurisdiction on the labour court/industrial tribunal to grant reinstatement in case termination is found to be illegal. 18. On the parameter of judicial pronouncement that has been extracted above, in normal course of business, the petitioner-appellants who are claiming themselves to be workman and further claim to have been retrenched without following the provisions of Section 25-F of Industrial Disputes Act, 1947, and the F.C.I. in its turn is clear and categorical that they are not genuine workmen then is learned Single Judge right in relegating the petitioner-appellants to invoke the forum of Industrial Court ?. In exceptional situation, when the action taken is backed by malafide, notwithstanding that remedy is available under Industrial Disputes Act, relief can be accorded under Article 226 of the Constitution of India, See Dhari Gram Panchayat v. Saurasthra Mazdoor Mahajan Sangh 1987 (4) SCC 213 . In exceptional situation, when the action taken is backed by malafide, notwithstanding that remedy is available under Industrial Disputes Act, relief can be accorded under Article 226 of the Constitution of India, See Dhari Gram Panchayat v. Saurasthra Mazdoor Mahajan Sangh 1987 (4) SCC 213 . Similarly in cases where no disputed question of fact are involved, violation of statutory provisions under Industrial Dispute Act is complaint of, in appropriate case, it is for the Court exercising authority under Article 226 to take a call, as to whether it would be appropriate in the facts of the case to entertain the writ petition and not to throw out on the ground of alternative remedy as ordinarily all such issues raised, on the basis of evidence led, has to be answered by Industrial Court. In this backdrop, we are proceeding to examine the case in hand, as to whether in the facts of case, this Court should have entertained the writ petition or the petitioner-appellants have been rightly relegated to avail the alternative remedy, provided for under Industrial law. 19. Here in the present case, it would be much more appropriate for the petitioner-appellants to avail the remedy provided for under Industrial Disputes Act for the reason that highly disputed question of facts are required to be decided as to whether petitioner-appellants are genuine/bona fide labourers, inasmuch as the list of bona fide/genuine labours that have been finalised upto the Apex Court, does not contain the name of petitioner-appellants. Petitioner-appellants claim that they have been brought under Director Payment System and are continuing since last two decade. In the reply submitted to the show cause notice mention has been made that incumbent has been brought under No Work No Pay system in F.C.I., F.S.D. Kosikalan in the year 1994 itself, and has been brought under Direct Payment System on 20.06.1998. Petitioner-appellants emergence on the scene is during the disputed period, when large scale complaint has been received of genuinety and ingenuity of workman, and as the luck of petitioner-appellants has been their name is not at all there in the list of genuine workers so identified, whereas initially it was there, but on subsequent exercise being undertaken same has been left out. Before one proceeds to claim benefit of retrenchment provision, one has to show and substantiate that he/she is a workmen. Before one proceeds to claim benefit of retrenchment provision, one has to show and substantiate that he/she is a workmen. Once there is serious dispute on this score, and in pith and substance petitioner-appellants also intend that their name should be there in the list, and the impugned order recites fact that induction of petitioner-appellants has been ingenuine, then petitioner-appellants will have to get declaration of their induction at initial stage being legal. Once appointments itself have been declared illegal and unjustified in the eyes of law, in such backdrop as to whether still procedure of retrenchment, has to be adhered, has to be answered by Industrial Court. Cancellation of engagement/appointment at the initial stage itself being illegal is a different connotation vis-a-vis the provisions contained holding field of retrenchment under Industrial Disputes Act wherein status of workmen is not supposed to be under dispute. 20. In such a situation and in this background, once name of petitioner appellants is not at all included in the list of bona fide/genuine labourers, and based on the aforementioned finding as their entry has been found to be illegal and consequently the inevitable fall out of the same is that services has been disengaged, then as already mentioned above, as to whether it could be considered as retrenchment, are all essentially question of fact, same can be answered by the Industrial Court at the point of time when evidence can be adduced in that behalf. It may be true that learned Single Judge when he has proceeded to ask the petitioner-appellants to avail the remedy has over reached the definition of retrenchment by terming the order in question as punishment, whereas fact of the matter is that said order is not at all punishment order, rather on its face value it is consequential order to the earlier action that has been so taken i.e. identification proceedings undertaken by the Assistant Labour Commissioner for finalising the list of workman. 21. In view of this, even if, some observation made by the learned Single Judge may be of the mark but conclusions arrived at are just and proper then there is no reason for us to interfere with the challenge made as all such actions can be examined appropriately, on the basis of evidence adduced by the Industrial Court. 22. With the above, Special Appeal stands dismissed. 22. With the above, Special Appeal stands dismissed. However, dismissal of the Special Appeal will not come in the way of petitioner-appellants to pursue their remedy before the Industrial Forum provided for, and it is always expected that Industrial Forum would decide the matter on its own merit in accordance with law.