G.S. Singhvi, J.
1. The petitioner has prayed for issue of a writ of mandamus to the respondents to comply with the award dated May 24, 1993 passed by the Industrial Tribunal-cum-Labour Court, Gurgaon, in Reference Case No. 284 of 1989. Another prayer made by the petitioner is for issue of a direction to respondent No. 1 to sanction prosecution of respondent Nos.2 and 3 for non-compliance of the award of the Industrial Tribunal-cum-Labour Court.
2. In short, the case of the petitioner is that while he was serving as a Helper on daily wages in the service of the Haryana Tourism Corporation Limited, the employer terminated his service with effect from November 30, 1988 without holding a proper and fair enquiry in accordance with the principles of natural justice, He raised a dispute against the termination of his service. The Government made a reference to the Industrial Tribunal-cum-Labour Court, Gurgaon. After considering the rival cases, the Industrial Tribunal-cum-Labour Court held that the termination of the service of the workman (Petitioner) was illegal and unjustified and that he was entitled to be reinstated in service with continuity of service and full back wages. The petitioner submitted his joining report on July 23, 1993 before the Divisional Manager and prayed for being allowed to discharge his duties. When respondent Nos. 2 and 3 did not comply with the award, he made an application before the Labour Inspector, Rewari, for getting the award implemented. He also filed a compliant before the Labour Commissioner to sanction prosecution of respondent Nos.2 and 3. Petitioner has stated that all his efforts to secure implementation of the award have proved futile and, therefore, appropriate directions be issued by this Court.
3. In his reply, respondent No. 1 has pleaded that the allegation of the petitioner to the effect that respondent No. 1 has not taken any step for compliance of the award is not correct. In fact, he had written letter (Annexure R.1) dated March 29, 1994, to implement the award immediately. In their separate reply, respondent Nos. 2 and 3 have stated that office order dated April 18, 1994 has been issued for compliance of the award dated May 24, 1993. It has also been stated that on account of availability of alternative remedy under Section 33C(2) of the Industrial Disputes Act, 1947 (for short, 'the Act of 1947) as also under Section 29 of the said Act, this Court should not entertain the petition.
4. A replication to the reply of respondents Nos.2 and 3 has been filed by the petitioner wherein he has stated that the respondents have not taken steps for his reinstatement on his old post and have not paid him full back wages.
5. Learned counsel for respondent Nos. 2 and 3 has raised a preliminary objection to the maintainability of the writ petition by arguing that when alternative remedy is available to the petitioner under Section 29 of the Act of 1947 as well it should not exercise its jurisdiction under Article 226 of the Constitution. Learned counsel argued that if the award passed by the Industrial Tribunal-cum-Labour Court was not complied with by respondent No. 2 and 3, the petitioner was entitled to seek their prosecution and at the same time make an application under Section 33C(2) of the Act of 1947 for payment of wages. Learned counsel placed reliance on a decision of this Court in Mahabir Prasad v. Naresh Kumar and Ors. 19930) S.L.R.138.
6. After having given my most anxious and thoughtful consideration to the argument of the learned counsel for respondent Nos.2 and 3, I find no substance in it. Admitted facts, which have come on record, show that after contest by respondent Nos. 2 and 3, the Industrial Tribunal-cum-Labour Court, Gurgaon, upheld the claim of the petitioner about the invalidity of the action taken by the employer for termination of his service. The Industrial Tribunal-cum-Labour Court unequivocally held that the termination of service of the petitioner was neither justified nor legal. On the basis of this conclusion, the Industrial Tribunal-cum-Labour Court directed reinstatement of the petitioner with continuity of service and full back wages. This award was: published on August 6, 1993. The employer did not challenge this award before the High Court under Article 226 or before the Supreme Court under Article 136 of the Constitution of India. Thus, the award passed by the Industrial Tribunal-cum-Labour Court acquired finality. This final award conferred a legal right in favour of the petitioner to be reinstated in service with benefit of continuity of service and back wages. At the same time, a corresponding obligation was imposed on the employer (respondent Nos 2 and 3) to take steps for fruitifying the rights which vested in the petitioner by virtue of Annexure P-1. Failure or respondent Nos.2 and 3 to implement the award for a period of one year and total absence of any justification for this negligence on the part of the respondents are sufficient to draw a conclusion that Respondent Nos. 2 and 3 have failed to carry out their duty and this has resulted in clear infringement of legal right of the petitioner. Therefore, the petitioner has a right to seek a writ of mandamus against the respondents.
7. Moreover, once the award passed by the Industrial Tribunal-cum-Labour-Court, Gurgaon, acquired finality it become law and it was the bounden duty of respondent Nos. 2 and 3 to not only act in accordance with the award and fulfil their obligation under the award but also to take all necessary steps to translate the award into reality. This the respondent Nos. 2 and 3 have admittedly not done. Therefore, in my opinion, the respondents are not entitled to raise the plea of availability of alternative remedy and they are not entitled to plead that the petitioner should be non-suited for his alleged failure to avail the alternative remedy.
8. In addition to the conclusion recorded hereinabove, namely that respondent Nos. 2 and 3 are not entitled to seek non-suiting of the petitioner on the specious plea of availability of alternative remedy, I am further of the view that neither of the so- called remedies available to the petitioner under Sections 29 and 33C(2) of the Act of 1947 cannot be construed as equally efficacious alternative remedy which would be made a ground to deny relief to the petitioner under Article 226 of the Constitution.
9. Sections 29 and 33C(2) of the Industrial Disputes Act, 1947 read thus:-
'29 Penalty for breach of settlement or award- Any person who commits a breach of any term of any settlement or award, which is binding on him under this Act, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both, and where the breach is continuing one, with a further fine which may extend to two hundred rupees for every day during which the breach continues after the conviction of the first and the Court trying the offense, if it fines the offender, may direct that the whole or any part of the fine realised from him shall be paid by way of compensation, to any person who in its opinion, has been injured by such breach.
'33C(2). Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months;
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.'
10. A perusal of the above quoted provisions shows that failure to implement the award passed by a competent Court can result in punishment of the defaulting party. An employee in whose favour the award has been passed by the Competent Court (Labour Court or Industrial Tribunal) can make an application before the Government for issue of sanction to prosecute the person, who is guilty of non-compliance of the directions given in the award. However, mere prosecution of the defaulting party or even his conviction does not give any tangible relief to the workman. Moreover, the Government may in a given case sanction the prosecution of the defaulting party and in another case, it may refuse to sanction the prosecution and in yet another case it may not pass any decision or pass order on the application filed by the workman in that event, the workman will have to seek a writ of mandamus from the High Court by filing a petition under Article 226 of the Constitution for issue of a direction to the Government to decide his application. It is, thus, evident that the workman cannot avail any remedy as a matter of right so far as Section 29 of the Act of 1947 is concerned. It is also to be noted that even if the employer is prosecuted and ultimately convicted on the charge of non-compliance of the award, the workman does not get any real relief because the Act of 1947 does not vest power in the Court, which can punish an employer under Section 29, to order reinstatement of the workman in compliance of the award.
11. Likewise, the only relief which the workman can get by making an application under Section 33C(2) of the Act 1947 is in the form of an order for payment of his wages. While exercising the power under that Section, the Labour Court cannot force the employer to take the employee on duty. That apart, if at all the workman succeeds in getting an order under Section 33C(2) of the Act, there is no guarantee that such order will be implemented with a sense of urgency. If that order is not complied with, maximum which the Labour Court can do is to send the order for recovery of money in the form of land revenue. It will then be for the administrative authorities to take steps for enforcing the recovery. Any unscrupulous employer will easily manage non- execution of the recovery orders. Once again the poor workman shall have to knock the doors of the High Court under Article 226 of the Constitution.
12. This all shows that the so-called remedy by way of punishment under Section 29 depends on the proper exercise of the discretion by the Government. The very vesting of the discretion in the administrative authorities to sanction the prosecution considerably reduced the efficacy of the so-called remedy. It is legitimate to take judicial notice of the tardy and long procedure which has to be undergone before an application under Section 29 is decided. An employee has to pass through various channels of the Government before he can persuade the competent authorities to spare their time for consideration of his request. The negative attitude adopted by the Labour Department of the Government even in making reference of the disputes and the time consuming procedure are the two factors which reduce the so-called remedy under Section 29 to a farce. Similarly, mere making of an order under Section 33C(2) of the Act of 1947 does not by itself give relief to the workman. An effective remedy is one by means of which a right of the workman can be enforced and violation of that right can be prevented. If availing of remedy depends on the discretion of others, it can hardly be termed as a remedy in real sense. Therefore, I am clearly of the opinion that the so-called remedies available to the workman under Sections 29 and 33C(2) of the Industrial Disputes Act, 1947, cannot be termed as equally efficacious alternative remedies so as to entitle the Court to deny relief to an aggrieved workman.
13. Here I may also take note of the general principles to be applied by the High Courts for exercise of jurisdiction under Article 226 of the Constitution. The Court has to bear in mind that the rule of not entertaining the writ petition under Article 226 in a case where equally efficacious alternative remedy is available is a rule of self-imposed restraint and a rule of caution; it is not a rule of law nor it is a rule of thumb, which can be applied in every case to non-suit a petitioner irrespective of the nature of his grievance. Therefore, whenever an objection is raised by a respondent to the maintainability/entertainability of alternative remedy, the Court must find out as to what is the nature of grievance made by the petitioner and what type of remedy is available to him. The Court cannot be too oblivious to its constitutional duty towards the citizens. Time has come when the people have started feeling that they have been let down by the two organs of the State and they look upon the Courts with a ray of hope. Common man's faith in the system of dispensation of justice still exists. However, failure of the Courts to undo injustice done to the citizens will shake the confidence of the people. The Courts will have to be more vigilant in the discharge of their duty to safeguard the legal and fundamental rights of the individual. The degree of anxiousness demonstrated in the judgments of the Courts to protect the right to property, the right to freedom of speech and expression, the right to trade and business will have to be reflected with greater sense of urgency for protecting the right of life and livelihood. The proliferation of the Government activities has affected the lives of people in a larger volume than it used to be in the pre-independence era and for ten years after independence. Enlargement of the field of State activities has resulted into its direct impact on the lives of the people. Recent times have seen an accelerated increase of arbitrariness in the State actions. The worst is that the public authorities and particularly the administrative authorities have developed an attitude of total insensitiveness towards the needs of the people. This has naturally compelled the people to look upon the Courts for solace and redressal of injustice. No doubt, this has led to an immense increase in the volume of litigation but that should not threaten the courts and there is no need to accept the specious argument or evolve methodologies to non-suit those who are really aggrieved by State action or arbitrariness of public authorities. The Courts have to guard themselves against the allegation of being protector of haves in the society. Denial of relief to the poor and small man on the grounds like availability of alternative remedy will not do any good to the system but will encourage people like Mr.P.Shiv Shankar who criticized the Courts by saying:-
'Madhadhipatis like Keshavanda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper's case AIR 1970 SC 564, anti-social elements i.e FERA violators, bride burners and a whole horde or reactionaries have found their haven in the Supreme Court, '(Reference to P.N. Dua v. P.Shiv Shankar, AIR 1988 SC 1208).
14. In this context another important aspect of the matter which deserves to be remembered is that right to livelihood has been recognised as a part of right to life guaranteed by Article 21 of the Constitution of India. Upto 1991 stray observations were made by the courts but in Delhi transport Corporation v. DTC Mazdoor Congress and others (1991-I-LLJ-395), a Constitution Bench of the Supreme Court has in no uncertain terms recognised the wider parameters of the concept of life used in Article 21. P.B.Sawant, J.observed in his judgment:- (p. 459):
'The employment under the public undertakings is a public employment and a public property. It is not only the undertakings but also the society which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service conditions, both discipline and devotion are endangered, and efficiency is impaired. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is the sole source of income the right to work becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the limbo of undefined premises and uncertain applications. That will be a mockery of them'
K.Ramaswamy, J.expressed himself in these words:-(p. 471):
'The right to life, a basic human right assured by Article 21 of the Constitution comprehends something more than mere animal existence i.e. dignity of the individual, Field, J. in Munn v. Illinois 94 US 113, 154 (1876), held that by the term 'life' as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The deprivation not only of life but of., if its efficacy be not fettered away by judicial decision. In Kharak Singh v. State of U.P., A.I.R. 1963 SC 1995, this Court approved the definition of life given by Field, J. in his dissenting opinion, in Olga Tellis v. Bombay Municipal Corporation 1986 AIR SC 180 this Court further laid that an equally important facet of the right to life is the right to livelihood because no person can live without the means of livelihood. If the right to livelihood is not treated as a part of constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation... That, which alone can make it possible to live, leave aside which makes life liveable, must be deemed to be an integral component of the right to life. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is the struggle for life. So unimpeachable is the nexus between life and the means of livelihood. Right to life does not only mean physical existence but includes basic human dignity, vide Menaka Gandhi v. Union of India 1978(2) SCR 621.'
In D.K.Yadav v. J.M.C.Industries Ltd., (1993-II-LLJ-696) the Apex Court again declared that right to life includes right to livelihood. The Court observed, (p. 701):
'Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. The order of termination of the service of an employee /workman visits with civil consequences of jeopardizing not only his/her livelihood but also career and livelihood of dependents. Therefore, before taking any action putting an end to the tenure of an employee/workman fair play requires that a reasonable opportunity to put forth his case is given and domestic inquiry conducted complying with the principles of natural justice.'
In Olga Tellis v. Bombay Municipal Corporation (supra) a Constitution Bench gave a new meaning to the word 'life' used in Article 21 and recognised rights to the pavement dwellers. Their Lordships held:-
'The right to life includes the right to livelihood. The sweep of the right of life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because no person can live without the means of livelihood, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as part of the right to life. That, which alone makes it possible to live, leave aside what makes life liveable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life.'
15. It is significant to note that in State of Maharashtra v. Chandrabhan Tale (1983-11-LLJ-256), their Lordships of the Supreme Court had declared (Varadarajan, J.) that public employment is property of the nation which has to be shared equally. In that very judgment. Chinnappa Reddy, J. held that public employment opportunity is a national wealth in which all citizens are equally entitled to share.
16. Having given this wider meaning to the term 'life', the Courts cannot shirk from its responsibility to protect the right to livelihood of the individuals. The Court cannot shut its eyes from the reality that in our country public employment is an important source of livelihood to individuals and the service jurisprudence which has developed during last four decades has perhaps no parallel in the world. If the Courts have safeguarded the right to speech and expression, the right to business, the right to property , the right to form association, it cannot be oblivious and ignorant of the rights of millions who are deprived of the source of livelihood by arbitrary, capricious and whimsical actions of State and its agencies. The Court cannot throw out a petition merely because it has been filed by a small man by declaring that he has an alternative remedy. So called sacrosanct rights which are treated as basic rights even by Universal Declaration of Human Rights of 1948, will remain mere paper rights if the man is not in a position to sustain himself and his family. It is, therefore, of vital importance for the Court as well as for the citizens that right to livelihood has to be protected. In the words of Chinnappa Reddy, J, (LIC of India v. Escorts Ltd. and Ors. (1986) 1 SCC 264, the Courts will have to devote more time and attention to the little citizens of this country. His Lordships started the decision in that case with the following words:-
'Problems of high finance and broad fiscal policy which truly are not and cannot be the province of the court for the very simple reason that we lack the necessary expertise and, which in any case, are none of our business are sought to be transformed into questions involving broad legal principles in order to make them concern of the Court. Similarly, what may be called the 'political' process of 'corporate democracy' are sought to be subjected to investigation by us by invoking the principle of the Rule of Law, with emphasis on the rule against arbitrary State action. An expose of the facts of the present case will reveal how much legal ingenuity may achieve by way of persuading courts, ingenuously, to treat the variegated problems of the world of finance, as litigable public right questions. Courts of Justice are well tuned to distress signals against arbitrary action. So corporate giants do not hesitate to rush to us with cries for justice. The court room becomes their battle ground and corporate battles are fought under the attractive banners of justice, fair play and the public interest. We do no deny the right of corporate giants to seek out aid as well as any Lilliputian farm labour or pavement dweller though we certainly would prefer to devote more of our time and attention to the latter. We recognise that out of the dust of the battles of giants occasionally emerge some new principles, worth the while. That is how the law has been progressing until recently. But not so now. Public interest litigation and public assisted litigation are today taking over many unexplored fields and the dumb are finding their voice.'
17. Thus, I hold that there is no substance in the argument of the learned counsel for the respondent that the petition should be dismissed on the ground of availability of the alternative remedy. The judgment of this Court in Mahabir Parshad v. Naresh Kumar (supra) on which reliance has been placed by the learned counsel bas no application to the facts of this case. That was a case in which award was made by the Labour Court in favour of the workman. The workman filed a petition under Section 12 of the Contempt of Courts Act, 1957, before the High Court . A learned Single Judge held that the non-petitioners were guilty of contempt of Court and sentenced them to simple imprisonment. Learned Single Judge repelled the contention that the Industrial Tribunal is not a Court subordinate to the High Court. While reversing the judgment of the Single Bench, the Division Bench held that the Labour Court is not a Court subordinate to the High Court for the purpose of Contempt of Courts Act. This judgment does not show that the Court has at all considered the scope of Sections 29 and 33C(2) of the Act of 1947 in the context of the objection which the learned counsel for the respondents has raised in this case.
18. Having rejected the preliminary objection of the learned counsel, now I shall consider the merit of this case. Admittedly the respondents 2 and 3 did not implement the award till they received the notice of this writ petition. Respondent Nos. 2 and 3 demonstrated total disregard to the award passed by the Labour Court. It took them almost one year to pass order (Annexure R-1) in the purported compliance of the award. Moreover, having perused that order, I am fully convinced that Annexure R-1 is nothing but a mere show of compliance of a part of the award. Though by Annexure R-1, the petitioner has been reinstated as Helper on daily wages, he has now been shown as Helper posted at Red Bishop Tourist Complex, Panchkula. Either respondent Nos. 2 and 3 are totally oblivious of the direction given by the Labour Court or they have deliberately or with an ulterior motive posted a daily-wage employee at a far distant place from his earlier place of posting. It has to be noted that the petitioner was working at Faridabad at the time of termination of his service. Posting him at Panchkula is clearly an act intended to frustrate the award because it will be impossible for the petitioner to make his both ends meet and he will be compelled to leave the job. A real and sincere compliance of the award would have been by reinstatement of the workman at Faridabad. I am of the opinion that Annexure R-1 is nothing but an attempt to rub salt in the wound of a low-paid employee and is a poor apology for compliance of the award. Therefore, a direction deserves to be issued to respondent Nos 2 and 3 to pass an order for posting of the petitioner at Faridabad as a daily wage employee.
19. Apart from re-instating the petitioner, the respondents have not placed any material on record to show that remaining part of the award, namely, payment of back wages, has been implemented by them. Therefore, a further direction is required to be issued to the respondents to pay back wages within two months.
20. Consequently, the writ petition is allowed. The respondents are directed to implement the award (Annexure P-1) within a period of two months by issue of an order of reinstatement of the petitioner within the district of Faridabad. The petitioner shall be paid back wages in terms of the award within two months. If back wages are not paid within two months, the petitioner shall get interest on the arrears of the back wages at the rate of 12 per cent per annum from the date of award. Petitioner shall get costs of the petition, which is assessed at Rs. 1,000/- (Rupees one thousand)
21. Before concluding, I wish to mention that the present case paints a grim picture of the working of the Labour Department of the Government of Haryana. The Officer, who wrote letter dated March 29, 1994 (enclosed as Annexure R-1 to the reply of respondent No. 1) is either totally unaware of the provisions of law or has no regard in the spirit with which the Industrial Disputes Act, 1947, had been enacted. After almost ten months of the passing of the award and after five months of making representation (Annexure P-5) by the petitioner, the Labour Commissioner wrote to the Managing Director requesting him to implement the award as if the Labour Commissioner felt that he is subordinate of the Managing Director, Haryana Tourism Corporation, and he has no guts to issue direction to the latter to implement the award . Total lack of the urgency shown by the Labour Commissioner speaks clearly of the perception with which the officer concerned has discharged his duties of the office which be holds. It is hoped that the officers of the Labour Department of the Government of Haryana would wake up from their slumber and discharge their functions in the true spirit expected of them while administering the provisions of the Industrial Disputes Act, 1947.