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General Manager, Magma Area, Eastern Coal Fields Ltd. Vs. Gopal Chandra Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberM.A.T. No. 787/1997
Judge
Reported in[1999(82)FLR530],(2000)ILLJ456Cal
ActsConstitution of India - Articles 21 and 226; ;Industrial Disputes Act, 1947 - Section 25F
AppellantGeneral Manager, Magma Area, Eastern Coal Fields Ltd.
RespondentGopal Chandra Mondal and ors.
Appellant AdvocateAlok Banerjee, ;Subimal Mukherjee and ;Pradyot Kumar Das, Advs.
Respondent AdvocateR.N. Majumdar and ;Sudarshan Roy, Advs.
DispositionAppeal allowed
Cases ReferredGujarat University v. N. U. Ragjuru and Ors.
Excerpt:
- .....whether in respect of an industrial dispute for which remedy lies before the forum created by the industrial disputes act, 1947 (hereinafter referred to as the act), the high court should entertain a writ petition under article 226 of the constitution.2. gopal chandra mondal, respondent herein, joined the service of eastern coalfields ltd. that company along with some others was nationalised by the coal mines (nationalisation) act, 1972. as a result of the nationalisation the respondent became an employee of the coal mines authority ltd. which is a 'state' within the meaning of article 12 of the constitution of india with effect from may 1; 1973. clause 9.4.0 of ncwa iv, inter alia, provides for employment to be given to one dependent of workers disabled permanently and those who met.....
Judgment:

R.S. Dayal, J.

1. Point for decision in this appeal is whether in respect of an industrial dispute for which remedy lies before the forum created by the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the High Court should entertain a writ petition under Article 226 of the Constitution.

2. Gopal Chandra Mondal, respondent herein, joined the service of Eastern Coalfields Ltd. That company along with some others was nationalised by the Coal Mines (Nationalisation) Act, 1972. As a result of the nationalisation the respondent became an employee of the Coal Mines Authority Ltd. which is a 'State' within the meaning of Article 12 of the Constitution of India with effect from May 1; 1973. Clause 9.4.0 of NCWA IV, inter alia, provides for employment to be given to one dependent of workers disabled permanently and those who met with death while in service. The respondent and one another executed an Indemnity Bond in the year 1991 in connection with the employment of one Mahesh Kora on the ground of the death of his sister Dingle Kora declaring and undertaking that if the relationship between Mahesh Kora and his deceased sister Late Dingle Kora was found to be false, they would be dismissed from the service of E.C.L, Case of the appellants is that Mahesh Kora was provided with the employment in terms of the provisions contained in Clause 9.4.0 referred above and the aforesaid Indemnity Bond but after thorough inquiry by the Vigilance Department it was found that Mahesh Kora was not the brother of Dingle Kora and the declaration made by Mahesh Kora in the Indemnity Bond that he was the brother of late Dingle Kora was false and so the services of respondent Gopal Chandra Mondal were terminated. The termination order was challenged by the respondent by writ petition from which this appeal has arisen. In the writ petition, learned Counsel for the appellants raised a preliminary objection challenging maintainability of the writ petition, contending that the respondent ought to have approached the forum created by the Industrial Disputes Act, 1947. The learned Trial Judge held that indemnity is reimbursement and so a statement of an employee to the effect that his employer can terminate his service summarily, if it is found that a particular person has procured the employment under the same employer on the basis of a false declaration, cannot be said to be a contract of indemnity as defined in Section 124 of the Central Act because loss, if any, caused to the employer on account of wrongful employment of such particular person cannot be compensated or reimbursed by termination of service of the statement maker. The Court further observed that the respondent has right to livelihood guaranteed by Article 21 of the Constitution of India and the wrongful termination in violation of Section 25-F of the Act has resulted in deprivation of his right of livelihood which he could not barter away, as no individual can barter away the freedoms conferred upon him by the Constitution. The learned Trial Judge held that the order of termination has resulted not only in violation of Section 25-F of the Industrial Disputes Act, 1947 but also Article 21 of the Constitution and since Article 21 has been violated, the petition is maintainable. In the result, the learned Trial Judge allowed the petition, set aside the order of termination and directed the appellants herein to pay the respondent all arrears of salaries and allowances from the date of termination of his services.

3. Aggrieved by this order the appellants have come up in appeal. The appeal was listed for hearing on the application for interim order when learned Counsel for the parties submitted that hearing of the application would involve the same amount of time as the hearing of the appeal itself and, therefore, the appeal itself might be heard. Accepting the request, the appeal has been heard. We have heard Shri Alok Banerjee on behalf of the appellants and Shri R.N. Majumdar on behalf of the respondent No. 1

4. Reliance has been placed by Shri Banerjee on a Full Bench decision of the Allahabad High Court in Chandrama Singh v. U.P. Co-operative Union, 1991 (63) FLR 478. The question before the Full Bench was whether a writ petition under Article 226 of the Constitution of India should or should not be entertained by the High Court where the cause of action for the petition emanates from the retrenchment of a workman in violation of the provisions of Section 25-F of the Industrial Disputes Act, 1947 or Section 6-N of the U.P. Industrial Disputes Act notwithstanding the fact that an alternative remedy under the aforesaid Acts may be available to the petitioner. The Court took note of the fact that the Industrial Disputes Acts provide machinery and procedure for investigation and settlement of industrial disputes including the disputes regarding retrenchment and considered the various decisions on the question whether in a situation where equally efficacious alternative remedy is available, should a petition under Article 226 of the Constitution be entertained? Note was taken of K.K. Srivastava v. Bhupendra Kumar Jain, : AIR1977SC1703 , where it was held that it is well settled law that while Article 226 of the Constitution confers wide power on the High Court there are equally well settled limitations which the Supreme Court has repeatedly pointed out on the exercise of such power, one of them being that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. In Bar Council of Delhi and Anr. v. Surjeet Singh and Ors. : [1980]3SCR946 , the Supreme Court said that if the alternative remedy fully covers the challenge then it is only that remedy and that remedy alone that must be resorted to. Again it was pointed out in Gujarat University v. N. U. Ragjuru and Ors., : [1988]1SCR899 , that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities a petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Full Bench after noticing all these decisions ruled that where a complete machinery/remedy for claiming relief is provided in a statute and such machinery and remedy fully covers the grievance of the petitioner then unless, extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redressal of the grievance by the petitioner. We are in respectful agreement with the view taken in this decision that where a remedy is available before a forum created under the Industrial Disputes Act, the dispute should be adjudicated by that forum alone and the writ Court should not entertain a petition in exercise of the extraordinary jurisdiction under Article 226 of the Constitution.

5. In the present case, the respondent claims relief on account of the alleged violation of Section 25-F of the Industrial Disputes Act. Learned Counsel for the respondent No. 1 has also submitted that no disciplinary proceedings were initiated against the respondent and as such the termination order is in violation of the principles of natural justice. He also referred during arguments to Paragraph 6 of the petition where the respondent alleged that he came to learn that one Mahesh Modi impersonified himself as Mahesh Kora and was trying to enjoy the employment of Death Quota of the deceased Dingle Kora and such incident happened without any knowledge of the respondent. Point of dispute on merit is whether the services of the petitioner could be terminated lawfully in a summary manner merely on the satisfaction of the employer or whether the termination amounted to retrenchment and as such the services could not be terminated without complying with the provisions of Section 25-F of the Act. The question is whether the dispute should be decided by the writ Court or should be left to be decided by a Court created under the Industrial Disputes Act. In our view, where a petitioner seeks relief against termination on the ground of the violation of Section 25-F of the Industrial Disputes Act he should approach the forum created under that Act and not the writ Court on the ground that the termination also amounts to violation of Article 21 of the Constitution.

6. In the result, we allow the appeal, set aside the judgment of the learned Trial Judge and dismiss the writ petition. We make it clear that this judgment by itself shall not be a bar to the respondent to seek remedy in the forum created under the Industrial Disputes Act, 1947. In the circumstances, there shall be no order as to costs.

Lala, J.

7. I agree.


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