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Malkhan Singh Vs. Union of India and Others - Court Judgment

LegalCrystal Citation
Subject Labour and Industrial
CourtDelhi High Court
Decided On
Case NumberC.W.P. No. 1081/1978
Judge
Reported inILR1981Delhi568; 1981LabIC1633; (1981)IILLJ174Del
Acts Industrial disputes Act, 1947 - Sections 2, 10, 25F and 25G; Constitution of India - Articles 14, 16 and 226
AppellantMalkhan Singh
RespondentUnion of India and Others
Cases ReferredIndia Ltd. v. The State
Excerpt:
indian railway establishment code (volume i, 1971 edition) - rule 149--scope--indian railway establishment manual paragraphs 2315 & 2318--industrial disputes act, sections 2(oo), 25f & 25g.; petitioners were working as 'substitutes' in the 'railways' for many years under paragraph 2315 of the indian railway establishment manual. the services of the petitioners were treated at par with temporary 'railway servants' the terms of paragraph 2318 of the manual. by notices dated 8-9-1978, services of the petitioners were suddenly terminated which have been challenged by virtue of instant writ petitions. it was contended for the petitioners that the order of termination amounted to retrenchment as they were workmen and the industrial disputes act was applicable to them by virtue of rule.....t.p.s. chawla, j.1. these are four petitions by four different persons seeking similar relief in almost identical circumstances. 2. each of the petitioners was employed by the railway as a 'substitute'. three of them were taken on as safaiwalas (cleaners) and one as a khalasi. they came to be so employed on different dates in the years 1971, 1972 and 1973. the exact dates are not material. all of them continued to work as 'substitutes' for many years until, by notices dated 8th september, 1978, their services were suddenly terminated. the notice were verbatim the same, except for the name employee to whom they were addressed. they read as follows : 'in pursuance of rule 149 of the indian railway establishment code, volume i, i hereby give notice to .......... s/o ........., substitute s.....
Judgment:

T.P.S. Chawla, J.

1. These are four petitions by four different persons seeking similar relief in almost identical circumstances.

2. Each of the petitioners was employed by the Railway as a 'substitute'. Three of them were taken on as safaiwalas (cleaners) and one as a khalasi. They came to be so employed on different dates in the years 1971, 1972 and 1973. The exact dates are not material. All of them continued to work as 'substitutes' for many years until, by notices dated 8th September, 1978, their services were suddenly terminated. The notice were verbatim the same, except for the name employee to whom they were addressed. They read as follows :

'In pursuance of Rule 149 of the Indian Railway Establishment Code, Volume I, I hereby give notice to .......... s/o ........., Substitute S and W. Safaiwala under CFO-DLI that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notices is served on or, as the case may be tendered to him,

Sd./- x x x

Asstt. Mechanical Engineer-IV,

D. S. Office, Delhi.

3. The petitioners maintain that his termination of their services was wholly invalid, and have moved for writs for certiorari to have these notices quashed.

4. 'Substitutes' are defined in paragraph 2315 of the Indian Railway Establishment Manual (2nd Ed.) It say that -

'Substitute' are persons engaged in Indian Railway Establishments on regular scales of pay and allowances applicable to posts against which they are employed. These posts may fall vacant on account of a railway servant being on leave or due to non-availability of permanent or temporary railway servants and which cannot be kept vacant'.

5. The 'right and privileges admissible to substitutes' are stated in paragraph 2318 of which the first sentence enjoins that :-

'Substitute should be afforded all the rights and privileges as may be admissible to temporary railway servants, from time to time on completion of six months continuous service ..........'

It is thus clear that after serving for six months a 'substitute' is, in all respects, on a par with a temporary railway servant. The railway admit, and it is otherwise obvious, that all the petitioners in the present cases had attained that that status long before their services were terminated.

6. The powers to terminate the service of a temporary railway servant by giving notice is contained in C. (1) of Rule 149 of the Indian Railway Establishment Code (Volume I, 1971 edn.) One month's notice is required if 'he was engaged on a contract for a definite period and the contract does not provide for any other period of notice' In other cases, 14 days notice is enough. Clauses (2) to (5) are not relevant But clause (5) of the Rule adds the following important rider,

'Notwithstanding anything contained in cls. (1), (2) and (4) of this rule if the Railway servant or apprentice is one to whom the provisions of the Industrial disputes Act, 1947 apply, he shall be entitled to notice or wage in lieu thereof in accordance with the provisions of the Act.'

7, In their counter-affidavits, the Railways denied that the Industrial Disputes Act 1947 applied to the petitioners. However at the hearing, counsel for the railway abandoned that contention. He very properly conceded the Act did apply to the petitioners' For, admittedly, they were employed by the Railway 'to do ...... manual ..... work ........... for reward'. And it has been held the the Railways are an 'industry' : See Somu Kumar Chatterjee and another v. The Distict Signal Tele-communication engineer and others : (1970)IILLJ179Pat thereforee, all the requirements of the definition of 'workman' in the Act were fulfillled, and there can be no doubt that it applied to the petitioners Indeed in Nand Lall v. The Union of India and another, [1978] Lab.I.C. 1967, the Railways did not even dispute that a 'substitute' cleaner was a 'workman' within the meaning of the Act.

8. The petitioners contend that, in law, the termination of their services amounted to 'retrenchment.' If that be right, the conclusion is inescapable that the termination of their services was avoide because two provisions of the Industrial Disputes Act were patently violated.

9. The first is S. 25F. It reads :

'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 :

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of services;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent of fifteen days' average pay for every completed year of continuous service or any part thereof 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.'

Since the section is drawn in the form of a probition against retrenchment 'until' what is stated thereafter has been done, the Supreme court has held that Clause (a) and (b) constitute 'conditions precedent' non-compliance with which makes the order of retrenchment invalid and inoperative. See The State of Bombay and others v. The Hospital Mazdoor Subha and others, : (1960)ILLJ251SC and M/s. Avon Services Production Agencies (P) Ltd. v. Industrial Tribunal, Haryana and others, : (1979)ILLJ1SC .

10. Accordingly, the retrenchment is null and void if the period of the notice is less than one month or wages in lieu of notice have not been paid; see Nand Lal v. The Union of India and another, and Om Prakash v. Registrar, Co-operative Societies, (1980) 40 F.L.R. 38. The result is the same if the notice does not indicate the reasons for retrenchment : See Nand Lal v. The Union of India, and another. This omission cannot be repaired by subsequently disclosing the reasons in an affidavit; see Hardayal and others v. The Union of India, New Delhi and others. (1976) Lab. I.C. 1426. Failure to pay retrenchment compensation has the like effect : See The Divisional Superintendent, Southern Railway, Madurai and others v. Sasidharan and others (1978) Lab. I.C. 1042, Mahabir v. D. K. Mital and another : (1979)IILLJ363Pat , and The State of Bombay and others v. The Hospital Mazdoor Sabha and others. Payment of the compensation after the notice of termination does not validate the retrenchment : See Somu Kumar Chatterjee and another v. The District Signal Tele-Communication Engineer and others. It appears from this last case that the only default which is considered to be venial is a failure to comply with (c).

11. In the present case, it is manifest from the notices terminating the services of the petitioners that the 'reasons for retrenchment' were not indicated. Nor were the petitioners paid compensation for retrenchment. On both these counts, the termination of their services, if it amounted to 'retrenchment' was invalid.

12. The second provision violated in S. 25G. This provides that :

'Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workman in that establishment between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.'

The underlaying idea of this section is concisely summed up in the maxim; 'last come first go'. Again, the supreme court has held that a breath of this section makes the retrenchment invalid : See Workman of Subong Tea Estate v. The Outgoing management of Subong Tea Estate and another : (1964)ILLJ333SC More so, because simultaneously Arts. 14 and 16 of the Constitution are also violated : See The Manager Govt. Branch Press and another v. D. B. Belliappa, : (1979)ILLJ156SC and The Divisional Personnel Officer, Guntakal Division, Southern Railway and another v. G. Jagadeswarareddy and others (1976) Lab. I.C. 115.

13. In the present cases, it is admitted by the Railway that many persons engaged as 'substitutes' much after the petitioners have been retained in service. No reasons have been disclosed in the counter-affidavits for departing from the principle of 25.G, except that in respect of two of the petitioners bare allegation has been made that their work was not satisfactory'. No further details have been vouchsafed. The petitioners say that their services have been terminated because they were active as members of their trade union. Though the Railways deny this allegations, they have not cared to substantiate whatever was their reason. In these circumstances. 25G stands violated. That would be another reason for holding the termination of the petitioners' services as void, if the termination constitutes 'retrenchment'.

14. These various propositions, though initially debated to some extent, were soon accepted by counsel for the Railways, He agreed that if the termination of the services of the petitioners was classifiable as 'retrenchment', it would have to be held to be void. Consequently, the real contest at the hearing was over the question whether the termination fails within the concept of 'retrenchment' or not.

15. The word 'retrenchment' has been defined in 2(oo) of the Act as follows :

'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 workmen 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

(c) termination of the service of a workman on the ground of continued ill-health.'

16. It will be observed that this definition is extremely wide. It covers termination of service of a workman 'for any reason whatsoever.' That goes far beyond the ordinary meaning of 'retrenchment'. According to the Concise Oxford Dictionary. 'retrench means' to 'cut down' or 'reduce'. From the same dictionary it appears that 'redundant' is the appropriate word to use for an 'industrial worker liable to dismissal as being no longer needed for any available job'. Hence, the phrase 'redundancy payment'. But 'retrenchment' has come to convey the same idea. In Pipraich Sugar Mills Ltd. v. Pipraich Sugar mills Mazdoor Union, : (1957)ILLJ235SC , the Supreme Court said, that 'retrenchment cannotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage ......'. It follows that termination of service for a reason other than 'redundancy' is not 'retrenchment' as commonly understood. Yet, the definition says 'for any reason whatsoever'.

17. A Bench of five Judges of the Supreme Court carefully analysed that definition in Hari Prasad Shiveshankar Shukla and another v. A. D. Divelkar and others, 1957 I L.L.J. 243. They construed the words 'for any reason whatsoever' in a narrow sense as referring to the reason for the worker being rendered 'surplus', and not in the wider sense of embracing reasons other than redundancy for termination of service. This emerges clearly from the following passage :

'We agree that the adoption of the ordinary meaning (semble of retrenchment) gives to the expression :

'For any reason whatsoever', a somewhat narrower scope; one may say that it gets a colour from the context in which the expression occurs; but we do not agree that it amounts to importing new words in the definition. What after all is the meaning of the expression 'for any reason whatsoever' when a portion of the staff or labour force is discharged as surplusage in a running or continuing business, the termination of service which follows may be due to a variety of reasons; e.g., for economy rationalisation in industry, installation of a new labour saving machinery, etc. The Legislature in using the expression 'for any reason whatsoever' says in effect; 'It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfillled, then it is retrenchment''. So, it was held - '........ that retrenchment as defined in Section 2(oo) and as used in the ordinary, accepted connotation of the word : it means that discharge of surplus labour or staff by the employer for any reasons whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and it has no application where the service of all workmen have been terminated by the employer on a real and bona fide closure of business ...... or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer .....'

The words underlined have been emphasised by italics in the judgment Concluding the discussion on this point, the Court categorically said :

'On our interpretation, in no case is there any retrenchment, unless there is discharge of surplus labour or staff in a continuing or running industry.'

Again the words underlined were put in italics by the Court,

18. It is, thereforee, not surprising that the High Courts took this judgment of the Supreme Court as ruling that the word 'retrenchment' as defined in Section 2(oo) retained its ordinary meaning. They held accordingly. This view was encouraged by the subsequent decisions of the Supreme Court in The Workmen of the Bengalore Wollen, Cotton and Silk Mills Co. Ltd. v. The Management of the Bangalore, Wollen Cotton and Silk Mills Co. Ltd., 1962 I L.L.J. 213 and Anakapalle Co-operative Agricultural and Industrial Society, Ltd. v. Workmen and others, : (1962)IILLJ621SC , which seemed to agree with and follow Hariprasad Shivshankar Shukla's case. And so the point seemed to be at rest.

19. However, in The State Bank of India v. Shri N. Sundara Money, : (1976)ILLJ478SC , a Bench of three Judges of the Supreme Court appeared to have taken a different view. They said that the words 'for any reason whatsoever' were 'very wide' and almost admitting of 'no exception'. The dictionary meaning of 'retrenchment' was held to be inapplicable as 'the definition clause furnished a different denotation'. They said : whatever the reason, every termination spells retrenchment'. So, termination by effluxion of time under a contract for a fixed period was held to be retrenchment. The observations and the decision in this case were not easy to reconcile with Hariprasad Shivshabkar Shukla's case, which, strange as it may seem, was either not cited or not noticed.

20. Precisely the same question arose again before another Bench of three Judges in M/s. Hindustan Steel Ltd, The Presiding Officer, Labour court Orissa and others, : (1977)ILLJ1SC . They followed the State Bank of India case and again held that termination resulting from effluxion of time under a contract for a fixed term was retrenchment. This time Hariprasad shivshankar Shukla's case was cited, and it was urged that the State Bank of India case, required reconsideration. But it was held that there was no conflict or inconsistency between those two cases, and the plea for reconsideration of the State Bank of India case was impliedly rejected.

21. Furthermore in Delhi Cloth and General Mills Co. Ltd. v. Sambu Nath Mukerji and others, : (1978)ILLJ1SC it was held that 'striking off the name of the workman from the rolls' for being absent without leave was 'retrenchment'.

22. Now in this state of the case-law the High Court began to take divergent views. Some of them held that redundancy was not a necessary ingredient of 'retrenchment' as defined in the Act. For example, Mahabir v. D. K. Mital and another, it was held that compulsory retirement amounted to 'retrenchment' because it has been 'interpreted' to include 'within its compass all types of termination by the employer and the reasons leading to such termination are irrelevant for all practical purposes'. (That case was decided in 1978, though reported much later,)

23. On the other hand in Mgmt. of Shri Ram Institute for Industrial Research v. N. L. Kakkar Presiding Officer, Labour Court and two others, , a Division Bench of this Court said that the decisions in the State Bank of India and the Hindustan Steel Limited cases, 'were given by a Bench of three Judges and cannot be construed to depart from the law laid down earlier as to the meaning of retrenchment by a Bench of five Judge' in Hariprasad Shivshankar Shukla's case,. It was sought to be demonstrated that both in the State Bank of India case and the Hindustan Steel Limited case the workman had in fact become 'surplus' and the Supreme Court proceeded on that premise whilst dealing with the rather different points actually argued. Thus, it was held, that 'retrenchment' means only termination of surplus staff and does not include the discharge of a workman for unsatisfactory work.'

24. In L. Robert D'Souza v. Thee Executive Engineer, S. Rly. and another : (1979)ILLJ211Ker , a Full Bench of the Kerala High Court examined all the authorities and reached the same conclusion for the like reasons. They expressly agreed with the Division Bench of this Court.

25. The present petitions were referred to a Division Bench because doubts were raised at the preliminary hearing as to the correctness of the decision in the Shri Ram Institute case. At that time, that judgment was assailed on the basis of decisions of other High Courts; but, meanwhile there has come another judgment of the Supreme Court which really concludes the matter,

26. Although M/s. Avon Service Production Agencies (P.) Ltd. v. Industrial Tribunal, Haryana and others and State of Punjab v. The Labour Court Jullunder and others. : (1981)ILLJ354SC , were also cited regarding the point under consideration, I do not think they are of any assistance. The questions canvassed in those cases were entirely different.

27. The case directly in point is Santosh Gupta v. State Bank of Patiala. : (1980)IILLJ72SC . It was decided by a Bench of two Judges. They held that 'the discharge of the workman on the ground that she did not pass the test which would have enable her to be confirmed was 'retrenchment .......'. All the relevant previous judgments of the Supreme Court were noticed. Hariprasad Shivshankar Shukla case, it was said had been misunderstood. The observations made therein had to be read in the context of the question posed and answered. And, the reference to 'discharge on account of surplusage' was illustrative and not exhaustive ........' It was emphasised that the specific exclusion made by the three clauses in S. 2(oo) indicated 'the broad interpretation to be given to the expression 'retrenchment'. If the words 'for any reasons whatsoever' were 'understood to mean what they plainly say' then' 'retrenchment' must include every termination of the service of a workman by an act of the employer'. The contention that 'notwithstanding the comprehensive language of the definition' the word 'retrenchment' retained its original meaning of discharge from service on account of 'surplusage' was unequivocally rejected. The State Bank of India and the Hindustan Steel Ltd. cases were held to 'have laid down the correct law'. The decision of the Kerala High court in Robert D'Souza v. The Executive Engineer, Rly. and another, and 'the other decisions of the other High Courts to similar effect' were expressly overruled.

28. So, obviously the decision of the Division Bench of this Court in Shri Ram Institute case must also be deemed to have been overruled, for it had taken the same view as the Kerala High Court.

29. But not daunted, counsel for the Railways urged us to follow Hariprasad Shivshankar Shukla's case nevertheless. He said, that case had been decided by five Judges, and since there was a conflict or inconsistency, it must prevail over the subsequent cases which had been decided either by three Judges or two.

30. No doubt when there is a conflict of inconsistency between various decisions or the Supreme Court, the High Court must follow the opinion of the larger Bench. That is the practice of the Supreme Court itself which has now 'crystallised into a rule of law' : see Mattulal v. Radhe Lal, A.I.R. 1974 S.C. 1956; Union of India and another v. K. S. Subramaniam, : (1977)ILLJ5SC and The State of U.P. v. Ram Chandra Trivedi : (1977)ILLJ200SC But when the Supreme Court has itself rules that there is no conflict or inconsistency, it surely cannot be open to the High Court to hold that there is : unless, of course, even on the question whether there is a conflict or inconsistency there is also a conflict, and, that between Benches of equal strength.

31. Here, in the Hindustan Steel Limited case it was held that there was no conflict or inconsistency between the State Bank of India case and Hariparasad Shivshankar Shukla's case. In Santosh Gupta's case, it was held that Hariprasad Shivshankar Shukla's case had been misunderstood and that the State Bank of India case and the Hindustan Steel Limited laid down the correct law. That implies that Court again thought there was no conflict or Inconsistency between those cases. for otherwise it would have been bound to follow Hariprasad Shivshankar Shukla's case since it was decided by a larger Bench. Thus, there is no conflict in the judgments of the Supreme Court about the question whether there is a conflict or inconsistency between Hariprasad Shivshankar Shukla's case on the hand and the State Bank of India and the Hindustan Steel Limited cases on the other. On the contrary both the Hindustan Steel Limited case and Santosh Gupta's case hold that there is none. I think we are bound by this 'exposition' of its own judgments by the Supreme Court, In The Divisional Superintendent. Southern Railway, Madurai and others v. Sasidharan and others a Division bench of the Kerala High Court took the same view. I agree with them.

32. Hence I think, it must be held that the Division Bench of this Court in the Shri Ram Institute case is no longer good law, and I hold accordingly. The inevitable result is that the termination of the services of the petitioners must be held to be 'retrenchment' and, since S. 25F and 25G have been violated, the retrenchment is invalid.

33. Nevertheless, counsel for the Railways still urged us to refuse relief. He contended that as the petitioners had not exhausted their alternative remedy under the Industrial Disputes Act, this Court should decline to exercise its extraordinary jurisdiction under Art, 226 of the Constitution. He argued that if relief had been sought by means of a reference under S. 10 of that Act, thee Railways 'would have had the right to justify' the termination of the services of the petitioners by proving the actual reason, thereforee. (That reason, he indicated off the record, was that the petitioners had secured the employment with the Railways by producing some certificates which were subsequently found to be false or forged.) In the present proceedings, he said, the Railways were handicapped in that they had no opportunity to vindicate their action on its merits. thereforee, justice required that the petitioners be compelled to seek their remedy under that Act.

34. There are many answers to this argument. It is true that it is now settled law that where an employer has filed to make an inquiry before dismissing or discharging a workman it is open to him to justify the action before the Tribunal by leading all relevant evidence before it : see Workmen of the Motipur Sugar Factory Private Ltd. v. The Motipur Sugar Factory Private Limited, : (1965)IILLJ162SC and the cases mentioned therein. But that principle can apply only if some charge was made against the workman and either there was no inquiry or it is found to be defective. When no charge whatsoever has been made against the workman, there can be no question of providing it before the Tribunal. Apart from being obvious, this proposition can be inferred from the very case just cited. One of the submissions there was that 'since no charge has been made against the workmen, it was not open to the Tribunal to hold an enquiry itself into the question of go-slow'. Although that argument was rejected by finding as a fact that a charge had been made, it is significant that the discussion contains no suggestion that had the fact been otherwise the argument would still have failed.

35. The service of the petitioners, here, were, terminated by a notice which contained no allegation against them. thereforee; even if their cases had been referred under S. 10 of the Industrial Dispute Act, the Railways would have been in no better position than they are in these proceedings. They could not have been allowed by the Labour Court or Industrial Tribunal to 'justify' the termination on a ground on which it had never been based.

36. It is also very doubtful whether the mode of redress provided to a workman by the Industrial Disputes Act can at all be regarded as a 'remedy'. In this context, the word 'remedy' normally denotes a procedure to which an aggrieved person can resort as of right. In doing so she is not dependent on the violation of some other person or authority. But under S. 10 of the Industrial Dispute Act the making of a reference is the discretion of the appropriate government. If a reference is refused, the workman cannot himself directly approach the Labour Court or Industrial Tribunal. Thus the remedy is not available as of right.

37. For this reason it has been held in Mahabir v. D. K. Mital and another, Om Prakash v. Registrar, Co-operative Societies, and The Divisional Superindent, Sothern Railway, Madurai and others v. Sasidharan and others, that the Industrial Disputes Act, does not provide an alternative remedy. In The State of Bombay and others v. The Hospital Mazdoor Sabha and others, a writ granted by the High Court was upheld notwithstanding that a reference under that Act could have been made On the basis of that decision, it was held in Somu Kumar Chaterjee and another v. The District signal-Tele-Communication Engineer and others, that 'the petitioners have a right to come before this Court ........ without raising an industrial dispute'. Of course, if a reference under that Act has already been made, a petition under Art. 226 will not be entertained : see Indian Institute of Technology. New Delhi v. Mangat Singh, : (1974)IILLJ191Del .

38. The other cases cited in argument were Mohanlal Kaul v. The State of Rajasthan and others, 1971 I L.L.J. 291 Prafulla Chandra Sharma and others v. M/s. Oil India Ltd. Duliajan and others, A.I.R. 1971 Gauhati 19; Abani Bhusan bids was v. Hindustan Cables Ltd., Burdwan and others : AIR1968Cal124 , Goshta Behari Ghose v. University of Calcutta, : AIR1972Cal61 and Basant Kumar Sarkar and others v. The Egale Rolling Mills Ltd. and others : (1964)IILLJ105SC . It is sufficient to say that in these cases this aspect of the matter was neither presented nor considered. The principles enunciated in The Premier automobiles Ltd. v. Kamelkar Shantaram Wadke and others : (1975)IILLJ445SC , are also not relevant. They are concerned with determining when a civil suit will lie in relation to an industrial dispute, and have nothing to do with the jurisdiction of the High Court under Art. 226, which is much wider. That is the ground on which that case was distinguished in The State Bank of India v. N. Sundara Money, and relief was granted.

39. Furthermore, 'there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy' : see State of U.P. v. Mohammad Nooh. A.I.R. 1958 S.C. 86 The existence of an alternative remedy is merely a factor to be taken into consideration and not a bar to relief. When there is 'manifest error' or a 'patent illegality' it is the duty of the High Court to interfere : see A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and another, : 1983ECR2151D(SC) and Hindustan Aluminium corporation Ltd. v. Controller of Aluminium and others I.L.R. (1976) Del. 336. Especially when quick relief is necessary; see Calcutta Discount Co. Ltd., v. Income Tax Officer, Companies District I, Calcutta and another : [1961]41ITR191(SC) . And after admitting a petition for hearing on merits, it is not generally fair to dismiss it on this somewhat technical ground : see C. A. Abraham v. Income Tax Officer, Kottayam and another : [1961]41ITR425(SC) L. Hirday Narain v. Income Tax Officer, Bareilly, : [1970]78ITR26(SC) and the decision of a Division Bench of this Court in S.T.R. No. 3 of 1973 entitled M/s. goodwill India Ltd. v. The State, decided on 20th April, 1979.

40. Now, applying these various propositions, how do the cases of the petitioners stand; At preliminary hearing, notice was issued to the respondents to show cause 'why rule nisi be not issued'. One of the preliminary objections raised in answer was that the petitioners had an equally efficacious alternative remedy open to them, under the Industrial Disputes Act and, hence, were not entitled to invoke the extraordinary jurisdiction of this Court under Art. 226. Dispute that objection, the petitions were admitted. It is reasonable to conclude that the objection, did not find favor with the admitting Bench. To allow this objection now after the petitions have been pending for two years, would clearly be most unjust. It may have been fair to turn away the petitioners at the threshold, but is different at this stage.

41. Besides, as I have tried to show, the so-called alternative remedy is not available to the petitioners as of right. No one can say whether the appropriate Government will make references under S. 10 of the Industrial Dispute Act if the petitioners are refused relief here. In any event, there will be much further delay and uncertainty, whereas the petitioners are in urgent need of relief. They have been out of employment for over two years. Also, the notice terminating their services are patently illegal according to the present state of the case law. And, there are no questions of fact in dispute.

42. Having regard to all these matters, I do not think it would be right or fair to refuse relief to the petitioners merely because they did not try to avail of the possible alternative remedy under the Industrial Disputes Act.

43. Accordingly, I would allow these four petitions and make no order in the nature of certiorari to quash the notice terminating the services of the petitioner in each case. Considering that the case law was in a confused state when these petitions were filed, and that the stand taken by the Railways was supported by Division Bench. Judgment of this Court, which was overruled only afterwards. I would make no order as to costs.

Per S. N. Kumar, J.

44. I agree.


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