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D. C. M. Chemical Employee's Lokhit Congress Union and others Vs. Delhi Administration and others (26.04.1982 - DELHC) - Court Judgment

LegalCrystal Citation
Subject Labour and Industrial
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 494 of 1981
Judge
Reported in1982(3)DRJ276
ActsIndustrial Disputes Act, 1947; Industrial Establishment (Standing Orders) Act; Industrial Employment (Standing Orders) Act, 1946 - Sections 13A; Constitution of India - Articles 12 and 226
AppellantD. C. M. Chemical Employee's Lokhit Congress Union and others
RespondentDelhi Administration and others
Cases ReferredSohan Lal v. Union of India
Excerpt:
.....the performance of a legal duty by one against whom it is sought.;-c- industrial employment (standing orders) act, 1946. validity of domestic enquiry. ; the high court acting under writ jurisdiction, can not look into the validity of domestic enquiry. the industrial employment (standing orders) act, 1946, provide a remedy for breach of provisions of this act.; -d- alternative remedy : as a bar to issuance of writ.;the remedy provided under indl. employment (standing orders) act, 1946 is adequate alternative remedy. high court declined to interfere, on facts of case. a - - 2. these petitions have to fail on the short ground that the relief claimed against respondents no. 1 and 2 stands already satisfied and the respondents 3 and 4 are not amenable to the writ jurisdiction..........the said paragraph is as follows : '21. that as the management has been deliberately violating its standing orders in a hasty manner with a clear view to victimise the poor workers for their only crime of forming the union against the wishes of the management hence the petitioners had no other alternative but to approach the government machinery provided under the industrial disputes act, 1947, and industrial establishment (standing orders) act for reference of the disputes as to the interpretation of the standing order to the proper labour court for proper adjudication. the union was constrained to write a letter to the secretary, labour, which is the certifying authority of the standing orders applicable to the concerned establishment in the letter dated october 22, 1980, the copy of.....
Judgment:

1. This judgment will also dispose of C.W. No. 401 of 1982, as the questions involved in the two petitions are identical. The only additional relief claimed in Writ Petition No. 401 of 1982 is prayer (f) with which I shall deal separately.

2. These petitions have to fail on the short ground that the relief claimed against respondents No. 1 and 2 stands already satisfied and the respondents 3 and 4 are not amenable to the writ jurisdiction of this Court. The allegations against respondents 1 and 2 are contained in paragraph 21 of the petition. The said paragraph is as follows :

'21. That as the management has been deliberately violating its Standing Orders in a hasty manner with a clear view to victimise the poor workers for their only crime of forming the Union against the wishes of the management hence the petitioners had no other alternative but to approach the Government machinery provided under the Industrial Disputes Act, 1947, and Industrial Establishment (Standing Orders) Act for reference of the disputes as to the interpretation of the standing order to the proper Labour Court for proper adjudication. The Union was constrained to write a letter to the Secretary, Labour, which is the certifying authority of the standing orders applicable to the concerned establishment in the letter dated October 22, 1980, the copy of which is enclosed as annexure I. The Union has requested the competent authority to inform the Union as to which of the learned Labour Courts is competent to hear the dispute as to the complaints of the workmen relating to the implementation of the standing orders. In this letter, it was made very clear to the competent authority, as, in one of the old cases of Rajbir Singh the learned court refused to exercise its power in the Industrial Establishment standing orders on the plea that it is not a specified court for this purpose. In this letter, the Union made it very clear, as in case of one of its members, namely, petitioner No. 3, the management was deliberately violating its own standing order, there was an urgent need to have information as to which court was competent to give a decision with respect of the dispute as to the interpretation of the standing orders.

That is spite of the service of the said order the Secretary Labour Room No. 1 has not cared to reply to the said representation. Another letter was sent to respondent No. 1 on the above subject. Copy enclosed as annexure 'O'.'

The claim of the petitioners in the aforesaid paragraph was, no doubt, well founded as under S. 13A of the Industrial Employment (Standing Orders) Act, 1946, it is incumbent on the appropriate Government to specify the Labour Court to which the question regarding the interpretation of standing orders has to be referred. But, this relief is no longer available to the petitioners because, admittedly, the appointment of the Labour Court stands already made and an application for the interpretation of the certified standing orders stands filed before the said Labour Court under the provisions of the Act. The Labour Court will proceed with the application in accordance with law.

3. The only other grievance made in the petition against respondents Nos. 1 and 2 is that the petitioners had moved the conciliation machinery for redressal of the grievances and for seeking protection but the conciliation officer by misconstruing and misquoting the provisions of law stated that the petition was premature and told the petitioner that the remedy of conciliation was available only when the concerned person was dismissed from service.

4. The learned counsel for the petitioner has failed to point out any provision of law under which the Conciliation Officer can be compelled to intervene before any dispute has arisen between the parties. It is well settled that the condition precedent for the issue of a mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. In the present case, there is no legal duty cast on the Conciliation Officer to intervene in the matter till some action is taken against the workman and the workman has a grievance to that effect.

5. In addition to the relief against respondents 1 and 2, the petitioners have sought to raise a controversy regarding the validity of the domestic enquiry into the charges leveled against the petitioners regarding the subsistence allowance and other incidental matters. The specific prayer against the management is to the following effect :

'Issue writ in the nature of mandamus or any appropriate writ, direction or order directing respondents Nos. 3 to 4 to pay the subsistence allowance to the petitioner for the entire period of suspension immediately and alternatively direct the respondents 1 to 2 to get implementation of Standing Orders enforced by the respondents 3 to 5 immediately so far the payment of subsistence allowance by the respondents 3 to 4 to the petitioners 2 and 3 is concerned immediately.'

Indirectly, it has also been prayed that the respondents 1 and 2 be directed to restrain respondents 3 to 5 by way of a writ, order or direction from acting in any manner on the basis of illegal, ultra vires, enquiry, proceedings held till to-date, alternatively to quash the entire enquiry proceedings held, conducted in clear violation of statutory rules and regulations against petitioners 2 and 3.

6. The law as it stood till the case of International Airport Authority, : (1979)IILLJ217SC , was that the writs could issue to the Government, statutory bodies and authorities under Art. 12 of the Constitution of India. The scope was enlarged by their Lordships of the Supreme Court in the case of International Airport Authority, (supra), and later in the case of Ajay Hasia v. Khalid Mujib Sehravardi, 1981 1 L.L.J. 103. In the said two cases it was held that where a Corporation is an instrumentality or agency of the Government, it must be held to be an 'authority' within the meaning of Art. 12 and hence subject to the same basic obligation to obey the Fundamental Rights as the Government. Certain tests were laid down in the later case, but it was not disputed by the learned counsel for the petitioner that in spite of these two cases he would not be covered by either of the tests laid down. He, however, relied on the judgment in the case of Praga Tools Corporation v. C. V. Imanual. : (1969)IILLJ479SC for the proposition that a writ could issue to any person who was vested with the obligation to perform statutory duties.

7. I have carefully considered the said judgment and I am of the opinion that the judgment is clearly against the petitioners inasmuch as it was held in that case that the mandamus can issue for instance to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfillling public responsibilities. The contention of the learned counsel for the petitioners was that the Standing Orders being statutory, the management was under an obligation to act in accordance with the said Standing Orders and in case they violate, a writ could issue restraining them from acting in violation of the said Standing Orders. This contention obviously cannot be accepted for the simple reason that the management, namely, respondents 3 and 4 are neither statutory bodies nor public officials and are not called upon to perform any public duty. It is provided in the Act itself that the manager has to act in accordance with the Standing Orders and for violation of the same, the penalty is provided under the rules itself.

8. Reliance was placed on the case of Sohan Lal v. Union of India, 9195 7 S.C.R. 738, wherein it was held that in certain circumstances a writ may issue to a private person if it could be shown that the said person had colluded and the transaction between him and the Union of India was merely colourable, entered into with a view to deprive another person. There is no such allegation in the present case and, as such this case is also of no help to the petitioners.

9. After the Labour Court has been specified by the Government under S. 13A of the Industrial Employment (Standing Orders) Act, the only controversy which survives in the petition is in relation to the domestic enquiry and incidental questions relating to the charge-sheet issued to the petitioners 2 and 3 and the domestic enquiry which has been held into the same and the disciplinary action which may be taken by the management on the basis of the findings of the Enquiry Officer. The petitioners, in any event, have adequate alternate remedy according to the ordinary law, i.e., under the Industrial Employment (Standing Orders) Act and under the Industrial Disputes Act. I do not think that this is a fit case for exercising extraordinary jurisdiction under Art. 226 of the Constitution.

10. For the reasons recorded above, I am of the opinion that the petition as against respondent 1 and 2 has since become infructuous and has to be dismissed as such. As against the other respondents, it has to be dismissed on the short ground that the same is not maintainable. Accordingly, the rule is discharged and the parties are left to bear their own costs.

11. As regards, the additional relief in C.W. No. 401 of 1982, prayer (f) is to the following effect :

'To set aside/quash the order dated December' 23, 1981, passed by the Court of Shri O. P. Singla, Presiding Officer of the Labour Court.'

12. It is alleged that along with the main petition the petitioner had filed an application for interim stay. The ex parte interim order was declined and a notice was issued to the management. The said petition is still pending in spite of the fact that more than three months have elapsed. The counsel for the parties have undertaken not to ask for any further adjournment and have stated that the said application is fixed for arguments on April 29, 1982, and they would request the Presiding Officer to dispose of the application on that date. I have no doubt that in this situation, the Presiding Officer would dispose of the application on April 29, 1982, itself and if for any reason it is not possible to do so on the same day, it will be done shortly thereafter. In view of this no directions to that effect are necessary.


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