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Munni Lal Sharma and ors. Vs. Executive Engineer, U.P. Electricity Board - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1981)IILLJ447All
AppellantMunni Lal Sharma and ors.
RespondentExecutive Engineer, U.P. Electricity Board
Cases ReferredThan Singh Nathmal v. The Superintendent of Taxes (supra
Excerpt:
.....clearly support the contention raised on behalf of the respondent that the petitioners had an alternative remedy of getting a reference made under section 6-m, and 4-k of the industrial disputes act and hence this petition is not maintainable. it is well-settled that alternative remedy is not a bar in cases where the impugned order lacks inherent jurisdiction or is passed in clear violation of principles of natural justice. since the report of the case did not indicate whether the objection of alternative remedy was raised before the high court we also looked into the judgment of the high court reported in 1971 tax law reporter page 316 and found that the objection of alternative remedy was raised before this court as well but was negatived because in the opinion of this court the..........of a preliminary objection to the maintainability of the petition, we shall first deal with it.5. learned counsel for the respondents urged that in the cases of the nature before us it is well-settled that the remedy of getting a reference made under the industrial disputes act is an adequate and effective remedy. learned counsel added that a number of writ petitions have been dismissed by this court on this ground. reference in this connection was made to the following decisions:1. civil misc writ petition no. 1034 of 1971 u.p. bijli karamchari sangh and ors. v. u.p. electricity board, decided by a division bench of this court on 5-3-1979.2. civil misc writ petition no. 2245 of 1973 intre ram sringar and others connected with civil misc writ petitions nos. 2049 and 2247 of 1977,.....
Judgment:

J.M.L. Sinha, J.

1. This is a writ petition filed under Article 226 of the Constitution assailing the order dated 11th October, 1977 by which the petitioners have been retrenched.

2. The facts giving rise to this petition can, briefly be stated as under:

The petitioners were employees of U. P. Stale Electricity Board, Harduaganj Store Purchase Division, Stage 4, Qasimpur Power Houses, Aligarh. On 11th October, 1977 they were served with a notice that their services shall stand terminated w.e.f. 15th November, 1977. The petitioners stand is that by that time, each one of them put in 12 to 15 years of services, that no regulation had been framed prescribing the age of retirement and, consequently they had a right to continue in service; that they were workmen within the meaning of that expression as defined in the Industrial Disputes Act, and the order terminating their services is illegal being in violation of Section 6N of the U. P. Industrial Disputes Act. The petitioners have accordingly prayed that the order dated 11th October, 1977 (Annexure 'I' to the writ petition) be quashed and a direction be issued to the respondents not to terminate the petitioner's services in pursuance of the aforesaid order.

3. The petition has been opposed on behalf of the respondents. Apart from the other contentions, it was also urged on their behalf that the petition is not maintainable because the petitioners had an alternative remedy of getting a reference made under Section 4K of the Industrial Disputes Act and the petitioners did not make use of that alternative remedy.

4. Since the aforesaid objection was raised by way of a preliminary objection to the maintainability of the petition, we shall first deal with it.

5. Learned Counsel for the respondents urged that in the cases of the nature before us it is well-settled that the remedy of getting a reference made under the Industrial Disputes Act is an adequate and effective remedy. Learned Counsel added that a number of writ petitions have been dismissed by this Court on this ground. Reference in this connection was made to the following decisions:

1. Civil Misc Writ Petition No. 1034 of 1971 U.P. Bijli Karamchari Sangh and Ors. v. U.P. Electricity Board, decided by a Division Bench of this Court on 5-3-1979.

2. Civil Misc Writ Petition No. 2245 of 1973 intre Ram Sringar and others connected with Civil Misc Writ Petitions Nos. 2049 and 2247 of 1977, decided by a Division Bench of this Court on 22-1-1979.

3. Second Appeal No. 29 of 1973 connected with Special Appeal No. 58 of 1975 Divisional Engineer, Head Quarter Central Railway v. Durgesh Kumar decided by a Division Bench of this Court on 27-4-1976.

4. Director of Industries and Ors. v. Kali Charan (1978) 37 F.L.R. 232 (Alld.)

and

5. Civil Misc writ petition No. 5582 of 1974 Bhagwati Prasad Trivedi v. Bank of Baroda, decided by the Division Bench of this Court on 8-2-1977. .

6. In all the aforementioned five cases, this Court consistently took the view that an alternative remedy, of getting a reference made under the Industrial Disputes Act, being available to the petitioners and the petitioners not having made use of that alternative remedy, writ petition were not maintainable. In the case of Ram Sringar and Ors. and in the case of Bhagwati Prasad Trivedi (Supra) it was, inter alia contended on behalf of the petitioners, that the provision of reference under the Industrial Disputes Act did not confer any right on any party but that the party concerned can only request the Government and it is for the Government to make or refuse to make the reference. It was urged that, consequently the provisions of reference did not provide an adequate or effective alternative remedy. In both the cases the Court. having considered the contention, repelled it.

7. Reference was also made by learned Counsel for the respondents to a decision of Gujarat High Court in the case of Anantray Jata Shanker Trivedi v. Bank of Baroda (1979) Lab. I. C. 969. In that case the punishment of withholding one increment was passed against the petitioner who was workman in a nationalised Bank. He filed a writ petition challenging the punishment. A preliminary objection was raised that the petitioner had an alternative remedy of a reference under the Industrial Disputes Act. The objection was upheld and the petition was dismissed as not maintainable.

8. Reference was next made by the learned Counsel for the respondents to a decision of the Supreme Court in the case of Basant Kumar Shanker and Ors. v. Eagle Rolling Mills Ltd. and Ors. 1964-II L.L.J. 105, In that case, in consequence of a notification issued under Section 1(3) of the Employees' State Insurance Act, the medical benefits which were being enjoyed by the petitioners, were curtailed. A writ petition was filed in the High Court of Patna assailing the constitutional validity of Section 1(3) of the Act and of the notification issued thereunder. The High Court dismissed the writ petition stating that the question as to whether the notices and circulars issued by respondent No. 1 were invalid, could not be considered under Article 226 of the Constitution but it could more appropriately be raised in the form of a dispute by the petitioner under Section 10 of the Industrial Disputes Act. The petitioner went up in appeal before the Supreme Court. The appeal was dismissed and it was, inter alia, observed that;

It was urged by the appellant before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that respondent No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by the respondent No. 1 were invalid, could not be considered under Article 226 of the Constitution, that is a matter which can be appropriately raised in the form of a dispute by the appellants under Section 10 of the Industrial Disputes Act. It is true that the powers conferred on the High Courts under Article 226 are very wide, but it is not suggested by Mr. Chatterji that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise.

9. Reference was then made to the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram 1975-II L.L.J. 445. The question for consideration in that case was whether the civil Court had jurisdiction to entertain a suit in relation to dispute which was an Industrial dispute. It was held:

To sum up, the principles applicable to the jurisdiction of the civil Court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute nor does it relate to enforcement of any other right under the Act, the remedy lies only in the civil Court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil Court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular case.

(3) If the Industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication tinder the Act.

(Italicised by us).

(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33C or the raising of an industrial dispute, as the case may be.

10. Learned Counsel for the respondent pointed out that in the instant case the petitioner relies on the rights accruing to him under Section 6-N of the U. P. Industrial Disputes Act to assail the order passed against him. Learned Counsel added that thus the petitioner's dispute relates to enforcement of a right under the Act, and in view of principle 3 enunciated above by the Supreme Court the only remedy for an aggrieved party in such a case is to move the Government to make a reference for the settlement of the dispute.

11. It cannot be gainsaid that the views expressed in the aforesaid decisions clearly support the contention raised on behalf of the respondent that the petitioners had an alternative remedy of getting a reference made under Section 6-M, and 4-K of the Industrial Disputes Act and hence this petition is not maintainable.

12. Learned Counsel for the petitioners, however, referred us to a large number of decisions in order to pursuade us to reach a contrary conclusion.

13. The first bunch of decisions consists of Mohan Coldwater Breweries Ltd. v. The Stale of U.P. (1978) Lab. I.C. 350 Har Dayal and Ors. v. Union of India, New Delhi (1976) Lab. I.C. 1426 and U.P. State Electricity Board v. Smt. Laxmi Devi Sahgal : AIR1977All499 . Learned Counsel stressed that these decisions also relate to this very Court and in all these decisions the objection of alternative remedy against the maintainability of the writ petition was rejected.

14. On a careful examination of the aforesaid cases, however, we find that they are distinguishable. In the case of Mohan Coldwater Breweries Ltd. v. The State of U.P. (supra) the Court did not entertain the objection regarding alternative remedy because the impugned order was without jurisdiction and a period of six years had already expired since the dispute had arisen. It is well-settled that alternative remedy is not a bar in cases where the impugned order lacks inherent jurisdiction or is passed in clear violation of principles of natural justice. Since the impugned order was without jurisdiction, the objection of alternative remedy was not accepted, Needless to say that in the case before us the impugned order does not lack inherent jurisdiction but according to the petitioners it is inconsistent with the provisions contained in Section 6-N of the U.P. Industrial Disputes Act.

15. In the case of Har Dayal and Ors. v. Union of India (supra) the learned single Judge, who decided the case, did not accept the objection of alternative remedy because the petitioners were employees of the Railways which is a department of the Union of India. It may be added here that in the case of Bijli Karamchari Sangh and Ors. v. U.P. Electricity Board (supra) the same learned single Judge who decided the case, sitting with another Honourable Judge, dismissed the petition on : the ground of alternative remedy.

16. Coming to the third case of U. P, State Electricity Board v. Smt. Laxmi Devi Sahgal (supra) the objection of alternative remedy was negatived for two reasons, namely, (i) that it was a case for the issue of a writ of prohibition and (ii) the Board was asking for something which it had no power to demand under the law. A writ of prohibition is issued against an inferior Court or Tribunal to prevent it from acting in excess of its legal authority, or without jurisdiction. Professor D. Smith in his book Judicial Review of Administrative Actions, Fourth Edition page 425 said.

The existence of a right of appeal to the Courts from a Tribunal's decision does not deprive the Courts of power to award prohibition to restrain the Tribunal from acting outside its jurisdiction, nor is the applicant obliged to have exhausted prescribed administrative means of redress before having recourse to the Courts.

Thus all the three decisions of this Court that have been cited by the learned Counsel for the petitioner are distinguishable from the cases that were cited on behalf of the respondents.

17. The next bunch of decision cited by the learned Counsel for the petitioners consists of The Government of India and Ors. v. The National Tobacco Co. of India Ltd. : AIR1977AP250 , Abbad Cotton Manufacturing Co. v. Union of India A.I.R. 1977 Guj. 113, Hyderabad Alloys Metal Works v. Collector of Central Excise (197S) Tax L.R. 1959 Mohd Tayam v. Union of India (1977) L.I.C. 1590, Jaggubhai Hamirbhai v. Dy. Commander (1978) L.I.C. 1191 and Hablh Jawan v. D.I.G. (C.I.D.) Kashmir and Ors. (1979) Lab I.C. 1035. In all these cases the impugned order was passed either without authority of law or in violation of principles of natural justice and hence the writ petitions were entertained. In the case of Habib Jawan v. D.I.G. (supra) there was further the circumstances that, instead of filing an appeal which was the remedy under the Rules, the petitioner had filed a representation to the relevant authority and the Court, held that it could be treated as an appeal. It will thus appear that all these cases are distinguishable and cannot apply to the facts of the present case,

18. Learned Counsel for the petitioner then referred us to the case of R.K. Gupta v. Delhi Administration (1978) Lab.I.C. 938. In this case the objection raised on behalf of the respondent was that the petitioners had alternative remedy by way of a suit to seek the same remedy. It was held by the Delhi High Court that the suit is not included within the words any other remedy occurring in Clause (3) of Article 226 of the Constitution as it stood after 42nd Amendment. It was on the ground that the plea of alternative remedy was rejected. Apart from the fact that the only other alternative remedy available in that case was that of a suit which is not always an adequate and effective remedy there is also the fact that the view taken by the Delhi High Court is inconsistent with the Full Bench decision of this Court, in the case of Bijli Cotton Mills (Pvt.) Ltd. Hathras and Ors. v. Estate Officer and Anr. Civil Misc. Writ No. 426 of 1977 decided on 10th of March, 1977. No. reliance can, therefore, be placed on that decision.

19. Yet another case cited by the learned Counsel is C. L. Raizada v. Chief Secretary (1977) Lab. I.C. 1988. In this case the alternative remedy available to the petitioner was by way of an appeal under the department rules. The objection was upheld and the petition was dismissed. Obviously, therefore, this case is of no help to the petitioner.

20. Learned Counsel also referred us to the case of Om Oils and Oilseeds v. Union of India A.I.R. 1977 Del 132. In this case the alternative remedy available to the petitioner was by way of a remedy under Section 7-B and an objection was raised on behalf of the respondents that the petition was not maintainable on that account. The Court, however, held that in the particular circumstances of that case arbitration was not necessary and it was on that account that the objection was turned down. In our opinion this case is also distinguishable and can have no analogy to the case before us.

21. Learned Counsel next referred us to a bunch of decisions consisting of the cases. Asst. Personnel Officer, S. Rly , Olovakkot v. K.T. Anthony 1978 II L.L.J. 254, D.S. Southern Railway v. Sasidharm (1978) Lab. I.C. 1042. John Fernandes v. Executive Engineer (1979) Lab. I.C. 255. Mahabir v. D.K. Mittal and Anr. 1979-II L.L.J. 363 and Sarjoo Prasad v. Regional Manager, State Bank of India (1979) Lab. I.C. 990. It must be conceded that in all these cases it was held that reference to the Labour Court under the Industrial Disputes Act is not an adequate and effective remedy because it is not the right of the aggrieved party to get a reference made, but the party concerned can only make a request to the Government and it is for the Government to decide whether or not to make the reference. The view taken in these cases, therefore, does support the learned Counsel for the petitioner. We have, however, already taken note of number of decisions of our Court in which it has been consistently held that it is an adequate and effective alternative remedy. As also mentioned earlier in the case of Ramsringhar and Ors. (supra) and in the case of Bhagwati Prasad Trivedi v. Bank of Baroda (supra) it was specifically contended that the provisions for references under the Industrial Disputes Act cannot constitute an adequate and effective alternative remedy because the option to make the reference lies with the Government and not with the party concerned. The Division Bench dealing with the two cases, however, negatived this contention and held that it does constitute an adequate and effective alternative remedy. We find ourselves in agreement with the view expressed in the aforesaid cases.

22. Learned Counsel urged that out of the five decisions of this Court cited by learned Counsel for the respondent four relate to the period when Clause (3) of Article 226 (as enacted by 42nd Amendment) existed. Learned Counsel added that under that clause xistence of alternative remedy was a complete bar and the Court had little discretion in the matter. Learned Counsel urged that since the said clause of Article 226 no more exists much reliance should not be placed on these decisions. We have anxiously considered this argument but we are unable to agree. Even before Clause (3) was inserted in Article 226, the Courts did not normally entertain a writ petition where an alternative remedy was available. This was a self imposed restriction and the 42nd Amendment only gave statutory shape to it by inserting Clause (3) in Article 226. The mere fact that Clause (3) no more exists should not lead us to abandon that self imposed limitation.

23. Learned Counsel for the petitioner I then referred us to a decision of the Supreme Court in the case of State of U. P. and Ors. v. Indian Hume Pipe Co. Ltd. : AIR1977SC1132 and urged that the decision of this Court cited earlier have now lost their force. We are once again unable to agree.

24. The only question for decision in the aforesaid case was whether Hume Pipes were sanitary fittings. A number of documents were filed by the petitioner before the Sales Tax Officer to show that they were not and those papers were not controverted by the State. The question thus required no investigation on facts whatsoever. Since the report of the case did not indicate whether the objection of alternative remedy was raised before the High Court we also looked into the judgment of the High Court reported in 1971 Tax Law Reporter page 316 and found that the objection of alternative remedy was raised before this Court as well but was negatived because in the opinion of this Court the decision was wholly arbitrary and in disregard of the evidence on record. In other words, the Court felt that the decision of the Sales Tax Officer was nullity. We may in this connection refer to the following observations contained in the judgment of this Court:

As has been pointed out by the Supreme Court in Bhopal Sugar Industries Ltd. v. Income Tax Officer Bhopal : [1960]40ITR618(SC) if the inferior officers in the hierarchy of Tribunals were permitted to ignore the directions and decision of a superior officer, it would strike at the very root of the administration of justice and would produce chaos. Such conduct on the part of the officers would contribute towards arbitrariness and perversity in assessment orders.

Then we find that the Sales Tax Officer has passed the impugned assessment orders totally disregarding the material placed by the petitioner in support of its contention. The assessment proceedings are quasi-judicial in nature and it is well settled that a quasi judicial order must be passed after taking into consideration all the materials placed on the record. If that is not done, the order can be termed as arbitrary and perverse and it is settled law that such an order can be struck down by the High Court in exercise of its jurisdiction under Article 226 of the Constitution.

When the plea of alternative remedy was reiterated in the Supreme Court it accepted the aforesaid reasoning given by the High Court in the following words.

It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perverselys it is the settled practice of the Supreme Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly In these circumstances, therefore, we would not be justified in the interest of justice in interfering in our jurisdiction under Article 136 of the Constitution to quash the order of the High Court merely on this ground after having found the order is legally correct.

The High Court and the Supreme Court also took into account the fact that the only question for consideration was whether hume pipes were sanitary fittings which required no investigation whatsoever as all the relevant material had been placed before the Sales Tax Officer and the material had not been controverted. As opposed to this in the case before us several controversies have been raised in the counter-affidavit., viz., that the Industrial Employment Standing Orders Act does not apply to the State Electricity Board, the operation of the Full Bench decision of this Court having been stayed by the Supreme Court that, in any case, Stores Purchases Division, where the petitioners were employed is not an industrial establishment that the petitioner are work charged employees and as such Section 6-N of the U. P. Industrial Disputes Act cannot apply to them that compensation had been offered to the petitioner at the time of retrenchment and Section 6-N was, therefore, substantially complied with. Whether these questions have any force and whether or not they require any investigation on facts, they have got to be answered.

25. In the context of the aforesaid facts we have no hesitation in concluding that the petitioner's case does not stand at par with the Supreme Court cases cited by the learned Counsel. We may, on the other hand refer to the case of Assistant Collector of Central Excise v. Jainson Hosiery Industries : 1979(4)ELT511(SC) and to the case Than Singh v. Superintendent of Taxes : [1964]6SCR654 . In the former case it was observed by the Supreme Court-

It is correct to say that the High Court must have regard to the well established principles for the exercise of its writ jurisdiction and unless it is satisfied that the normal statutory remedy is likely to be dilatory or difficult to give reasonably quick relief, it should be loath to act under Article 226.

26. In this case Than Singh Nathmal v. The Superintendent of Taxes (supra) best judgment assessment was made against the assessee. The appeal and revision filed by them failed to secure any relief. The petitioner could thereafter move the Commissioner to make a reference to the High Court. The petitioner, however, bypassed that remedy and filed petition under Article 226. The Supreme Court dealing with that point observed.

Where it is open to the aggrieved petitioner to move another Tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be by passed and will leave the party applying to it to seek resort to the machinery so set up.

27. Having thus made a resume of all the decisions cited before us we conclude that the petitioners have an adequate and effective alternative remedy under Section 4-K of the U.P. Industrial Disputes Act and hence the present petition is not maintainable,

28. The petition accordingly fails and is hereby dismissed, we, however, refuse to make any order as to costs.


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