IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2397 OF 1987 For Approval & Signature: Hon'ble MR.JUSTICE S.K.KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether their lordships wish to see the fair copy of the judgment ? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Civil Judge? --------------------------------------------------------- KHUNGALA LABHUBHAI APPABHAI VERSUS RAJKOT MUNICIPAL CORPORATION & ANR. --------------------------------------------------------- Appearance: MR JJ YAGNIK for petitioner MR NIKHIL KERIL for Respondents --------------------------------------------------------- Coram: MR.JUSTICE S.K.Keshote,J Date of decision:26/11/1999 C.A.V. JUDGMENT #. The petitioner, by this writ petition under Article 226 of the Constitution of India, is praying for directions to the respondent to treat its impugned action of not regularising his services and terminating his services as illegal, unjust, arbitrary, discriminatory, unconstitutional and non-est in the eye of law and to direct the respondent to treat the petitioner in continuous services of the respondent from the date of his initial appointment in services. Second prayer has been made for directions to the respondent to regularise the services of the petitioner with all consequential benefits. #. It is not in dispute that the services of the petitioner were terminated by respondent much before the date on which interim relief was granted by this Court. A point is raised that the respondent has committed contempt of the Court in terminating the services of the petitioner. However, from the special civil application itself, and particular prayer made in paragraph-10(A), it is clearly borne out that as per the petitioner's own case, his services were terminated by respondent before he approached to this Court. Be that as it may, the matter has to be considered on merits. #. The learned counsel for the petitioner contended that termination of services of the petitioner is made by respondent in violation of provisions of Section 25-F, 25-G, and 25-H of the Industrial Disputes Act, 1947. It is next contended that the action of respondent to continue the petitioner as daily wager and not to regularise his services and to give him all the benefits of services which are being given to permanent employees is wholly arbitrary and unjustified. #. The petitioner, as per his own case, was appointed as a daily wager driver and he has not stated very specifically on which date he was employed as such. However, during the course of arguments, the learned counsel for the petitioner made reference to the pleadings made by petitioner in sub-para 3 of paragraph 6 wherein it is stated that the petitioner was working continuously with respondent-authority since 1983 and that he has completed 240 days in a year. #. In this case, the respondent has not filed reply thereto. #. The learned counsel for the respondent orally contended that this writ petition is not maintainable as it is not admitted case of the respondent that the petitioner has completed 240 days in twelve calendar months immediately preceding the date of termination of his services. It is a disputed question of fact and for which only adequate and appropriate remedy for the petitioner is to raise an industrial dispute. It has next been contended that the petitioner has come up with the case that the respondent has terminated his services in violation of provisions of Section 25-F, 25-G and 25-H of the Industrial Disputes Act, 1947 and for this complaint he shall to avail of the remedy provided under the very Act itself. It is contended that the petitioner was appointed as a daily wager as and when there was temporary increase of work of driver and he has no right to hold the post and not acquired any right of regularization of his services. Recruitment to the post of driver is regulated under the recruitment rules framed by the Corporation and in case daily wagers are made permanent or their services are regularised, then this will become a source of recruitment which otherwise is not provided under the recruitment rules of the Corporation. Not only this, the learned counsel for the respondent contended, that if such course is adopted and this Court has also given direction to the respondent to regularise the services of the petitioner then, it may be in violation of provisions of Articles 14 and 16 of the Constitution of India. The petitioner was engaged as a daily wager and that engagement was not made after making selection in accordance with the provisions of Articles 14 and 16 of the Constitution of India. Next, it is contended that the daily wager has no right to the post and the respondent-Corporation, when the work was not available for the petitioner, has all the right to terminate his services. Lastly, it is contended that termination of the services of the petitioner from services is legal and valid and no question does arise of regularising of his services. #. Mr.J.J.Yagnik, learned counsel for the petitioner, in rejoinder contended that this special civil application has been admitted and after so many years of its admission, at this stage, this Court may not relegate the petitioner to the alternative remedy. It has next been contended that it is a settled law that after admission of the special civil application, normally, this Court may not dismiss the same on the ground of availability of alternative remedy. Lastly, it is contended that there is no bar under the Constitution for maintainability and entertainment of the special civil application under Article 226 of the Constitution of India by this Court, even in the cases where the petitioner, against the impugned action of respondent has an alternative remedy. On merits, again the learned counsel for the petitioner reiterated his submissions which he earlier made. #. I have considered the rival submissions made by learned counsel for the parties. First of all I consider it to be apropriate to deal with the the preliminary objection raised by learned counsel for the respondent, reg.: maintainability of the writ petition. The power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provisions of the Constitution of India. This Court having regard to the facts of the case has discretion to entertain or not to entertain a writ petition. There are certain self=imposed restrictions one of which is that if an effective and efficacious remedy is available, this Court would not normally exercise its jurisdiction in the matter. However, as consistently held by the apex Court, alternative remedy available in a given case may not operate as a bar in at least three contingencies, namely where writ petition has been filed for enforcement of any of the fundamental rights or where there has been a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or vires of the Act is challenged. The present one is not the case where vires of any Act or Rule framed thereunder has been challenged by petitioner. It is also not the case where this writ petition has been filed for enforcement of any of the fundamental rights. The action of the respondent to discontinue the services of a daily wager cannot be said to be wholly without jurisdiction. The principles of natural justice are also not violated in the present case. So this case does not fall under any of the exceptions carved out by the apex Court in the cases where direct writ petition may be entertained by this Court. #. In this case, twofold grievances are being made by petitioner. Firstly, that his services were terminated in violation of provisions of the Industrial Disputes Act, and secondly, that his services would have been regularized. The issue of maintainability of a writ petition under Article 226 of the Constitution of India where efficacious alternative remedy is available is no more res-integra and there can be no doubt regarding the legal position that a party should ordinarily avail the statutory remedies instead of approaching Writ Court however, the alternative remedy is an adequate, efficacious, speedy and not of burdensome or onerous in character. Reference in this respect fruitfully may have to the following decision of the Apex Court. (i) Himmat Lal Hari Lal Mehta v. State of Madhya Pradesh & Ors. - AIR 954 SC 403 (ii) State of Bombay v. United Motors India Ltd. - AIR 953 SC 252 (iii) State of U.P. v. Mohd. Nooh - AIR 958 SC 86 (iv) K.S.Rashid & Sons v. Income Tax Investigating Commissioner - AIR 954 SC 207 (v) A.B.Venkateswaran, Collector of Customs, Bombay v. Ram Chandra Shobraj Wadhwani - AIR 96 SC 506 (vi) Calcutta Discount Company Ltd. v. Income Tax Officer - AIR 1961 SC 372 ##. So far as the matter pertains wherein an issue of industrial dispute is concerned, the Constitution Bench of the apex Court in the case of Basant Kumar Sarkar v. M/s.Eagle Rolling Mills, reported in AIR 1964 SC 1260, considered the matter from the point of view of availability of alternative remedy as under; "The High Court has held that the question as to whether the notices and circulars issued by the respondent No.1 were valid, could not be considered under Article 226 of the Constitution; that is a matter which can be appropriately raised in the form of dispute by the appellants under Section 10 of the Industrial Disputes Act ..... We would confirm the finding of the High Court that the proper remedy, which is available to the appellants to ventilate their grievance in respect of such notice and circulars is to take recourse to Section 10 of the Industrial Disputes Act....." In the case of U.P.Jal Nigam v. N.S.Mathur, reported in (1995)1 SCC 21, the apex Court observed as under: "Where a statutory Tribunal has been constituted specially to look into the grievance of the Government servant, it is a statutory obligation on the part of such government servant first to avail those of the statutory remedies. in case they are aggrieved against the order passed by the Tribunal, the remedy under Article 226 is always available to them.....Under these circumstances.....it was wholly unjustified in entertaining the writ petition." This view has been reiterated by the apex Court in the recent judgment in the case of Commissioner of Income Tax, Lucknow v. U.P.Forest Corporation & Ors., reported in (1998)3 SCC 530. In the case of Scooters India Ltd. v. Vijai E.V.Eldred, reported in (1998)6 SCC 549, the apex Court has held as under: "The above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the determination of disputed questions of facts, for which remedy under the Industrial Law was available to the workman." Reference may also have fruitfully to the decision of the apex Court in the case of Life Insurance Corporation of India v. D.J.Bahadur reported in AIR 1980 SC 2181: "In determining whether a statute is special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. In law, we have a cosmos of relativity, not absolutes-so too in life. The I.D. Act is a special statute devoted wholly to investigation and settlement of industrial disputes which provides definitionally for the nature of industrial disputes coming within its ambit. It creates an infrastructure for investigation into, solution of an adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the I.D. Act has one special mission - the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen. Therefore, with reference to industrial disputes between employers and workmen, the I.D. Act is a special statute and the L.I.C. Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such are beyond the orbit of and have no specific or a special place in the scheme of the L.I.C. Act. And whenever there was a dispute between workmen and management, the I.D. Act mechanism was resorted to." ##. In the case of termination of services of workmen and more so where grievance has been made that termination has been effected in violation of the provisions of the Industrial Disputes Act, 1947, normally, rule of an employee should be to avail remedy provided under the Industrial Disputes Act, 1947 and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting remedies should be with great care and caution and in very exceptional cases. In the case of Tin Plate Co. of India Ltd. v. State of Bihar, reported in AIR 1999 SC 74, the apex Court said that, "it is no doubt true that when an alternative and equally efficacious remedy is open to a person, he should be required to pursue that remedy and not to invoke extraordinary jurisdiction of the High Court under Article 226 of the Constitution and where such a remedy is available, it would be sound exercise of discretion to refuse to entertain the writ petition under Article 226 of the Constitution". Again, in the case of Sheela Devi v. Jaspal Singh, reported in (1999)1 SCC 209, the apex Court has taken same view. It is therefore no more res-integra and in fact it is a settled proposition of law that where adequate remedy can be read in the statute, plea of resort to remedy under Article 226 / 227 of the Constitution must be discouraged. Reference may have in this respect to two decisions of the apex Court in the case of Shyam Kishore v. Municipal Corporation of Delhi, reported in AIR 1992 SWC 2279 and in the case of Mohan Pandey v. Smt.Usha Rani Rajgaria, reported in (1992)4 SCC 61. ##. So from the ratio of these decisions it is very clear that normally direct writ petition may not be entertained by this Court under Article 226 of the Constitution of India where alternative and efficacious remedy is available to the litigant. Approach of litigants directly by circumventing alternative remedy available, to this Court is to be discouraged, more so, in cases where complaint has been made by litigant for violation of some provisions of law in making of the action impugned in the writ petition. If the efficacious alternate remedy is available in the Statute itself,it has to be availed of . However, in exceptional cases and more so where the case falls in one of the exception as carved out by Hon'ble Supreme Court, a writ petition can be directly entertained but not as a rule or right. Substance of the matter is that question of having bar in the writ jurisdiction to entertain petition directly where alternative remedy is available may not arise as it is a settled proposition of law that judicial review in writ jurisdiction is permissible of the order of quasi-judicial authority or even of administrative order of the State Government with certain limitations which have been explained from time to time by various High Courts as well as Hon'ble Supreme Court and recently, the Hon'ble Supreme Court has said in the case of Whirlpool Corporation v. Registrar of D.M.Trade Marks, Mumbai, reported in (1998)7 SCC 243 as under: "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But an alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, (i) where the writ petition has been filed for the enforcement of any of the fundamental rights; or (ii) where there has been violation of the principles of natural justice; or (iii) where the order or proceedings are held without jurisdiction or the vires of the Act is challenged." ##. It is equally correct that holding an absolute bar to entertain writ petition in respect of industrial dispute may tantamount to the Court not having competence of judicial review in the order impugned in the writ petition. Judicial review of quasi=judicial, judicial or administrative orders is a basic feature of the Constitution and normally it cannot be allowed to be taken away by interpretations. Thus, it cannot be laid down or accepted as absolute rule that this Court under Article 226 of the Constitution has no power to entertain directly a writ petition in the matter where against the impugned action or order, alternative efficacious remedy is available. But self=imposed restrictions where it does not warrant exercise of such powers in the cases where statutory remedy is provided for, this Court is perfectly legal and justified in its approach not to entertain writ petition directly. Similarly, where disputed question has to be gone into or disputed questions of fact are involved for adjudication, this Court may not entertain writ petition directly. As a rule, writ petition directly cannot be entertained by this Court though there is no statutory bar but it is a self=imposed restriction to have judicial discipline as well as to see that first the parties avail efficacious alternative remedy available. ##. The question of entertainment directly of writ petition in the category of cases to which this case belongs is normally discouraged for three reasons. Firstly, the petitioner is making grievance of violation of the provisions of Industrial Disputes Act, 1947, by respondent in taking of the action to terminate the services of the petitioner, and in such case, for redressal of this grievance, statutory remedy of raising industrial dispute under the Industrial Disputes Act, 1947, is provided. Secondly, it is a question of fact whether the petitioner has completed 240 days in twelve calendar months preceding the date of termination of his services or not. It is not an admitted fact that he had completed 240 days in twelve calendar months preceding the date of termination. To give any relief to the petitioner, the Court has to decide on this question of fact and this adjudication normally is not resorted to by this Court. So where the disputed questions of fact are there, direct writ petition should be discouraged. Whether the conditions prescribed under Section 25-F of the Industrial Disputes Act, 1947, for retrenchment of workman have been fulfilled or not in a given case is a pure question of fact and since in order to arrive at a conclusion or for recording finding, some investigation/ inquiry has to be embarked upon, this question would be beyond the purview of Article 226 of the Constitution of India. In such matters, alternate remedy may be efficacious and adequate. Lastly, raising of industrial dispute in such matters is also in favour of respondent. In such matters even if it is found that the conditions prescribed under Section 25-F of the Industrial Disputes Act, 1947, for retrenchment of workman have not been fulfilled by the employer, still the respondent has all the right to satisfy that it is not the case where the award of reinstatement with full backwages may be passed in favour of workman. This is also a pure question of fact and to arrive at a conclusion or for recording finding, certainly, investigation and/or inquiry has to be embarked upon and it is beyond the purview of Article 226 of the Constitution of India. In such matters, if directly writ petition is entertained, it will cause serious prejudice to the respondent also. It is not the law that this aspect of the matter has to be considered only with reference to the petitioner but the Court has to consider also while directly entertaining writ petition in a matter where alternate statutory remedy is available, as to whether entertaining writ petition directly will cause any prejudice to the respondent or not. Where it is satisfied that it causes prejudice to the respondent, then it it also equally a good ground not to entertain writ petition directly. ##. Remedy provided under the Industrial Disputes Act, 1947, are not only efficacious and effective remedy but it is also a cheaper remedy. I fail to see what incentive and charm the litigants are having to approach this Court directly almost in all the matters where statutory remedies are available. It is true that there are certain exceptions which have been carved out and in those cases, this Court may relegate its self-imposed limitations in entertaining direct writ petition but in those cases also, insistence of this Court should have been to avail of the alternative remedy except in exceptional cases. Alternative remedy in this case is a cheaper remedy and secondly after decision given by the Labour Court, it is open to the party aggrieved of the decision to approach this Court. In the Labour Court or Industrial Tribunal, remedy is not only cheaper, but it is also speedy. It is not unknown to the litigants and the persons concerned with the Courts that this Court because of heavy pendency of litigations is not able to dispose of matters for years together. One of the reasons for the heavy pendency of matters may be that the parties are directly approaching this Court even in the cases where efficacious and effective alternative remedies are available. It is not gainsaid that in case the litigants come to this Court by exhausting alternative remedy, certainly it may reduce number of litigations before this Court. Out of hundred cases decided by alternative redressal forums in the State, at least in some percentage of cases the parties may be satisfied with the decision and in this way, to that extent litigation will not come before this Court. This approach of litigants to directly come to this Court in cases where statutory alternative remedies are provided is to be curbed and it is also in the larger interest of the litigants. By this indiscriminately filing of writ petition directly before this Court even in the matters where efficacious, effective alternative remedies are available results in deprival of speedy justice to those persons who have come before this Court after exhausting alternative remedies. Though at one point of time, disposal of this special civil application would have been there but this Court could not stand to the expectation of dispensing with the speedy justice of litigants for which, as said earlier, one of the cause may be of indiscriminately filing of writ petitions before this Court by litigants even in cases where statutory remedies are available. ##. The learned counsel for the petitioner failed to give out any justification to approach this Court directly by this writ petition in the matter where a complaint has been made that termination of services has been made in violation of provisions of Section 25-F of the Industrial Disputes Act, 1947. Having heard the learned counsel for the petitioner and going through the contents of the special civil application, I am satisfied that otherwise also, this case does not fall under any of the exceptions carved out by the