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Dabur (Mr. S.K. Burman) (P) Ltd. Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1978)IILLJ151Cal
AppellantDabur (Mr. S.K. Burman) (P) Ltd. ;assam Oil Co. Ltd.
RespondentState of West Bengal and ors.;central Govt. Industrial Tribunal and ors.
Cases ReferredIn Channel Colling Company v. Ross
Excerpt:
- .....remedy ' provided for by or under ' any other law for the time being in force' really meant any remedy specifically provided for such redress and was never intended to cover general remedies like suits or appeals contemplated by article 136 of the constitution. mr. biswas appearing on behalf of the petitioner in the other writ petition has put forward the same contentions and he has strongly contended that when article 136 of the constitution confers no right of appeal the same cannot be contrued to be providing any remedy within the meaning of sub-art. (3) as above. mr. ghosh and mr. chakraborti appearing on behalf of the respondents have on the other hand contended that when sub-art. (3) speaks of any other remedy provided for by or under any other law for the time being in force.....
Judgment:

Anil Kumar Sen, J.

1. On a difference of opinion between two of the learned single Judges of this Court these two writ petitions have been referred to us. The difference of opinion is on the point as to whether in view of the amended provision of Article 226(3) of the Constitution, Article 136 of the Constitution is any other remedy to a person who feels aggrieved by an award of an Industrial Tribunal made on a reference under the Industrial Disputes Act, so as to bar entertainment of a writ petition wherein such an award is challenged. While our learned brother Roy, J, in Regent Estates Limited v. Second Labour Court, (1977) C.L.J. 401, 81 C.W.N. 777, has held that Article 136 provides for such a remedy, our learned brother Mookerji, J, is unable to share the said view. The two writ petitions having been thus referred to us, we have heard counsel for the parties on the preliminary issue as to whether on the provisions of Article 136 such writ petitions are barred or not and we propose to decide the preliminary issue by this judgment.

2. In both the writ petitions, the subject-matters of challenge are awards made by the respective Industrial Tribunals on references being made to them under the Industrial Disputes Act. The Industrial Disputes Act provides for no appeal or revision as against the awards so made nor any such remedy is specifically provided for by any other statute or statutory provision though no doubt the Supreme Court in its discretion may grant special leave to a party aggrieved by such an award to appeal to the Supreme Court against an award so made. The short question that has been debated before us and on which there is the difference of opinion between the learned Judges sitting singly is as to whether Article 136 of the Constitution which provides for such an appeal constitutes ' any other remedy ' contemplated by Article 226(3) of the Constitution so that such a remedy being provided for as an alternative remedy the writ petition challenging the award cannot be entertained before such a remedy is exhausted.

3. Article 226 of the Constitution has undergone material change by the 42nd Amendment of the Constitution. Prior to the amendment under sub-Art. (1) the High Court could issue an appropriate writ not only for the enforcement of any of the fundamental rights but also for any other purpose. After the amendment though the High Court's power to issue a writ for enforcement of the fundamental rights has been preserved, material limitations have been imposed on exercise of power to issue writs for any other purpose. Those words ' for any other purpose' are no longer there in sub-Art. (1). Instead thereof, the High Court is now authorised to issue an appropriate writ either (1) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument thereunder, or (2) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in (1) above where such illegality has resulted in substantial failure of justice. These are the added Clauses (b) and (c) of Article 226(1). A further limitation has been imposed in regard to issue of a writ for such purposes by sub-Art, (3) which provides ;

(3) No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of (1) shall be entertained if any other remedy for such redress is provided for by or under any other law for the time being in force.

4. The scope for issue of a writ if it is not for the enforcement of any fundamental right is limited to the extent as prescribed by Clauses (b) and (c) of Article 226(1) of the Constitution but at this stage we are not concerned with such limits which we shall consider only when we take up the writ petitions for consideration on merits. At this stage we are called upon only to determine the true import of the provision in sub-Art. (3) for deciding whether entertainment of the present petitions is barred on the provisions of the said sub-Art, or not. Mr. Ganguly appearing on behalf of the petitioners in one of the writ petitions has raised 3 points in support of his contention that the writ petition is not barred under the provisions of sub-Art. (3), as aforesaid. Firstly, he has contended that in order to attract the bar under sub-Art. (3), the other remedy must be provided for by or under any other law and this any other law does not include the Constitution itself. Reliance is placed by Mr. Ganguly on the decision of the Supreme Court in the case of Kesavananda Bharati v. State of Kerala : AIR1973SC1461 and particularly on the principles laid down in paragraphs 18, 40 and 41 of the reports. Next it has been contended by Mr. Ganguly that Article 136 of the Constitution does not constitute a remedy since it confers no right of appeal. The last contention of Mr. Ganguly is that in any event Article 226(3) of the Constitution when it speaks of ' any other remedy ' provided for by or under ' any other law for the time being in force' really meant any remedy specifically provided for such redress and was never intended to cover general remedies like suits or appeals contemplated by Article 136 of the Constitution. Mr. Biswas appearing on behalf of the petitioner in the other writ petition has put forward the same contentions and he has strongly contended that when Article 136 of the Constitution confers no right of appeal the same cannot be contrued to be providing any remedy within the meaning of sub-Art. (3) as above. Mr. Ghosh and Mr. Chakraborti appearing on behalf of the respondents have on the other hand contended that when sub-Art. (3) speaks of any other remedy provided for by or under any other law for the time being in force the terms are wide enough to cover the ordinary law and the Constitution. According to them though Article 136 of the Constitution confers no direct right of appeal yet it provides a remedy when the party aggrieved can move the Supreme Court for leave to appeal and the leave being granted prefer an appeal against the impugned decision. Strong reliance is placed by the learned advocates appearing on behalf of the respondents on the decision and the reasons given by our learned brother Roy, J, in Regent Estates Limited (supra).

5. So far as the first point raised by Mr, Ganguly is concerned, we are not in a position to accept the same. The decision of the Supreme Court relied on by Mr. Ganguly was with regard to interpretation of Article 13 as it stood prior to its recent amendment. It was only in the context of that provision that it was held that the term ' law ' referred to therein would not include an amendment of the Constitution itself made under Article 368 thereof. In our opinion, the said decision is no authority for holding that the term ' law ' referred to in any other provision of the Constitution would necessarily exclude the Constitution. That would be too wide a proposition. Constitution being the fundamental law would be law beyond doubt. In Clauses (b) and (c) of Article 226(1) of the Constitution reference is made to Constitution as also to other laws and if sub-Art. (3) did not expressly limit itself to such laws other than the Constitution it would not be permissible for us to accept the contention of Mr. Ganguly and hold that the term '' any other law for the time being in force' would exclude the Constitution.

6. The other two points raised by Mr. Ganguly, however, require serious consideration. The newly added sub-Art. (3) incorporates into the Constitution the rule of exhaustion of statutory remedy before a writ is to be granted. This rule was previously followed by Courts as a rule of policy, convenience and discretion rather than rule of law. Naturally, it being a rule of policy, convenience and discretion the bar was never considered absolute and various factors like adequacy, appropriateness of efficacy of the alternative remedy often entered into judicial consideration for determining whether non-exhaustion of the statutory remedy should be considered as a bar for the entertainment of a writ petition or not. This position has been changed materially by the constitutional amendment since it has now been made a rule of law. But it would be necessary to determine to what extent such a rule of policy has been made into rule of law on an interpretation of constitutional amendment. It must no doubt be acknowledged that on its text, Sub-article (3) is capable of varied interpretation when it lays down that if there exists any other remedy provided for by or under any other law for the time being in force, the High Court will not have the jurisdiction to entertain a writ petition for the same redress. There has been divergence of judicial opinion as to whether the term ' other remedy ' means and includes any remedy in law or any remedy specifically provided as such by any law. In interpreting this provision we must first remember that it should be so interpreted as would render it consistent with Sub-article (1). Secondly, it should be noted that to the extent this new sub-Article limits the jurisdiction of this Court otherwise conferred by Sub-article (1) it must be strictly construed and the restriction imposed must be limited to the limits really intended and contemplated by the new sub-article.

7. Existence of an alternative remedy had been held to bar entertainment of an application under Article 226 of the Constitution even prior to the aforesaid constitutional amendment. Indeed that is inherent in the exercise of such jurisdiction. It is necessary, however, to take note of two principles in this regard. Firstly, it had been held that the High Court will not normally exercise its jurisdiction under Article 226 when so invoked to by-pass the machinery created under a statute and will leave the party applying to it to seek resort to the machinery so set up. In other words, the High Court does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief (Than Singh v. Superintendent of Taxes : [1964]6SCR654 , Joharmal Murlidhar & Co, v. Agricultural Income-tax Officer, Assam : [1971]79ITR6(SC) , Ambalat Purshottam, etc. v. Ahmedabad Municipal Corporation : [1968]3SCR207 . Secondly, in some cases it had been held that the remedy provided for in Article 226 being a discretionary remedy it is never intended to supersede completely modes of action in a civil Court and render exercise of such jurisdiction a convenient alternative to following such modes (State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 ). These are cases where the Court finds that a suit of civil nature is the proper mode of seeking the relief claimed. In such cases the High Court refuses to exercise its jurisdiction under Article 226 not so much because he petitioner has not exhausted an alternative remedy but because the other remedy is the more appropriate remedy for the petitioner, In our view, the Parliament in enacting sub-Art. (3) of Article 226 intended to incorporate the first of the above principles into the Constitution and make it a rule of law. Such an interpretation follows from the context. Sub-article (1) in Clauses (b) and (c) authorises issue of an appropriate writ for the redress if any injury by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or any other rule, regulation, by-law or any other instrument made thereunder and Clause (c) similarly authorises issue of such a writ for the redress of any injury by reason of illegality in any proceeding under any of the laws referred to in Clause (b). Thus, the cause of action arises either from the contravention of any of such laws or out of any illegality in any proceeding under any such law. Having provided as such in Clauses (b) and (c) Sub-article (3) goes on to impose a limitation by prohibiting entertainment of a petition for such redress ' if any other remedy for such redress is provided for by or under any other law for the time being in force '. In enacting the sub-clause, the Parliament did not use the term ' legal remedies' as in Specific Relief Act, 1877, but specific emphasis is laid on the fact that a remedy for such redress is to be provided by or under the law. It follows, therefore, that the other remedy in this sub-clause necessarily means a specific remedy provided as such by law and does not include general remedies by way of a suit or by way of moving the Supreme Court to invoke the jurisdiction under Article 136 of the Constitution for such relief.

8. Our learned brother Roy, J., in the case of Regent Estate Limited (supra) and in the case of Probodh Chandra Roy v. L.I.C. of India, (1977) 1 C.L.J. 237, 81 C.W.N. 555, no doubt took the view that the term ' other remedy' is wide enough to include general remedies like suits of civil nature and invoking the jurisdiction of the Supreme Court under Article 136 but in our opinion the term ' other remedy' should not be given such a wide interpretation when read in its context.

9. We are quite conscious of a Bench decision of this Court in the case of Nanilal Roy v. Satyenda : AIR1952Cal1 , where in interpreting the term ' another specific and adequate legal remedy' in Section 45(d) of the Specific Relief Act, 1877, this Court held that the term ' specific legal remedy ' means only a remedy which would give a person the specific relief and may as well include a suit of a civil nature. In the case of Commissioner of Police v. Gordhandas : [1952]1SCR135 Supreme Court also expressed a similar view when it was held that a suit may in certain cases constitute a proper and adequate remedy within the meaning of Section 45(d) aforesaid. But such an interpretation was made in the context of the statute thereunder consideration as would appear from the above decision of this Court. Moreover, the term now under interpretation is materially different and the difference in the test of the two material provision leads us-for reasons given hereinbefore-to hold that unlike Section 45(d) of the Specific Relief Act, 1877, here in Article 226(3) the other remedy means a specific remedy provided as such by law. This view finds it support from the full Bench decision in the case of Abad Cotton Manufacturing Company v. Union of India A.I.R. 1977 Gujarat 113, where it was observed :

This alternative remedy, therefore, could never be the general remedy of a civil suit which is by way of a collateral attack and which would be available in every case for ultra vires orders unless it is specifically excluded. The amplitude of this fetter is made dependent on the existence of the other effective alternative remedy which is in terms provided whether by the specific law or under the subordinate legislation of such law. One thing is certain that such alternative remedy must be specifically provided for.

Though in our view, the specific remedy need not always or necessarily be provided by the law under which the impugned action is taken or order is made, yet we are in respectful agreement with the views expressed by the learned Judges in the above case that the remedy contemplated by Sub-article (3) is a specific remedy provided as such by the law and it never includes any general remedy by way of a suit of a civil nature or invoking the jurisdiction of the Supreme Court under Article 136 of the Constitution.

10. It should also be pointed out that the view favouring wider connotation of the terra ' other remedy' to include a suit of civil nature as taken by our learned brother Roy, J., has not been shared by our learned brothers M. M. Dutt and Sharma, JJ., in the case of Mahindra Mohan Sarkar v. I. T. O., Siliguri, 77 C.H.N. 603. On the other hand they held :

There is hardly any matter or any dispute which cannot be decided or any relief which cannot be granted in a suit of civil nature and if in all cases the suit is considered to be a remedy for redress against the injury as mentioned in Clauses (b) and (c) of Article 226(1), we are afraid no petition under Article 226 would be maintainable for redress of any injury under Clauses (b) and (c). In our opinion, by amending Article 226 the Parliament never intended to take away the jurisdiction of the High Court to issue writs.

This view well supports the view expressed by us that in order to interpret Sub-article (3) consistently with sub-Art. (1) the term ' other remedy ' must be interpreted to mean specific remedy provided for as such by or under any other law and it would not mean general remedies in law.

11. Mr. Ghosh, on the other hand, has placed strong reliance on a Full Bench decision of the Andhra Pradesh High Court in the case of Government of India v. National Tobacco Company : AIR1977AP250 . In this case, interpreting the term ' other remedy ' it was no doubt held that such remedy need not necessarily be one under any statute, ordinance, order, rule, regulation, by-law, etc., the breach of which is complained of and that it would be sufficient if that other remedy is provided for by or under any other law for the time being in force but Their Lordships went on to observe :

Therefore, if another remedy is provided either by the law the breach of which is complained of in the writ petition or under any other law in force, it would be a bar to the maintainability of the writ petition but at the same time it should be remembered that the other remedy must be capable of affording such redress as is postulated under Clauses (b) and (c). If the other remedy is not capable of giving to the aggrieved person similar redress as contemplated by Sub-clause (b) or Sub-clause (c) then it cannot be considered to be a bar. A suit by itself cannot be ruled out as another remedy available.

To the extent this decision lays down that the other remedy need not necessarily be provided for by the law the breach of which is complained of and to the extent it lays down that a suit may as well be provided for as a specific alternative remedy, it expresses nothing inconsistent with the view we have taken. But if this decision is an authority for a proposition that a general remedy by way of a civil nature may as well be other remedy contemplated by Sub-article (3) it is not consistent with the full Bench decision of the Bombay (Gujarat ?) High Court which view we respectfully prefer to follow.

12. Apart from the reason given hereinbefore there is in our opinion an additional ground to support the view that Article 136 of the Constitution provides for no such other remedy contemplated by sub-Article (3) of Article 226 as would bar entertainment of the writ petitions of the petitioners. Our learned brother Mookerji, J., has rightly pointed out that Article 136 of the Constitution provides no such alternative remedy as would debar this Court from entertaining an application under Article 226 of the Constitution. It has been pointed out by him that Article 136 does not confer any right of appeal and as such provides no remedy. This Article merely vests plenary jurisdiction in the Supreme Court to entertain and hear any appeal from any judgment, decree, determination, sentence or order passed or made by any Court or Tribunal throughout India in its discretion. In the case of A.R. Sarin v. B.C. Patil : AIR1951Bom423 , while considering the question whether a remedy provided by Article 227 of the Constitution would debar entertainment of an application under Article 226 of the Constitution, Chagla, C.J., observed :

But in order that a petition for a writ of certiorari would not lie, the petitioner must have a specific legal remedy, and specific legal remedy in this context can only mean that he must have a right to approach a court and he must have a right to a remedy if his case was just. Article 227 only deals with the powers of the High Court and not with the rights of the litigant. A litigant may approach the High Court, but he has no right to do so nor has he a right to remedy because the High Court may refuse a remedy under Article 227.

On principle there is no difference between Article 227 and Article 136 on the point now under consideration. A similar view was expressed by the Madras High Court in the case of Management of Wimco v. Industrial Tribunal, Madras A.I.R. 1958 Madras 398 where it was observed :

The right to apply for leave to appeal under Article 136, if it could be called a right at all, it cannot be equated with a right of appeal. Obviously, a High Court cannot refuse to entertain an application under Article 226 on the ground that the aggrieved party could move the Supreme Court under Article 136.

None has referred to us any decision taking any view contrary to the above principle nor do we feel that there is any scope for taking any contrary view. In Channel Colling Company v. Ross 1907] 1. K.B. 145 (148), it was observed by the Chief Justice that by using the words 'may apply' in relation to the alternate remedy by application of the inferior Tribunal, the applicant was given only an option to utilise it and the Legislature did not want to exclude the writ by such an alternate remedy. The position under Article 136 being no better, we agree with our learned brother Mookerji, J, that Article 136 constitutes no alternate remedy which on the provisions of Article 226(3) can be invoked as a bar to the entertainment of the applications under Article 226 of the Constitution.

13. For reasons aforesaid, we overrule the preliminary objection raised in these two writ petitions and we hold that they are maintainable in law.

Bankim Chandra Ray, J.

14. I agree.


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