IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.01.2011 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.11289 of 2000 1.N.Kothandapani 2.Tmt.M.Malliga 3.Tmt.N.Kuppu @ Kathayee 4.Tmt.N.Parvathi .. Petitioners Vs 1.The Managing Director, Food Corporation of India, Barlal Chamba Lane, Head Quarters, New Delhi. 2.The Zonal Manager (South), Food Corporation of India, 2, Haddows Road, Zonal Office, Chennai – 600 006. 3.The Senior Manager, Food Corporation of India, 5/54, Greams Road, Regional Office, Chennai – 600 006. 4.The District Manager, Food Corporation of India, District Office, Cuddalore. 5.The Assistant Manager (Depot), Food Corporation of India, Thiruvandar Koil, Karaikkal Taluk, Pondicherry District. https://hcservices.ecourts.gov.in/hcservices/ 6.K.Vasanthi 7.R.Nagamma 8.S.Parvathy 9.A.Rajalakshmi 10.B.S.Sundarmurthy (RR 6 to 10 impleaded as per order dated 15.06.2010) WP.Mp.873/09 in WP.11289/2000. .. Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus calling for the entire records relating to the impugned order passed by the fourth respondent in his order in Ref.No.HK/3/3/99-2000 dated 24.04.2000 and quash the same and consequently direct the respondents to reinstate the petitioners in service with continuity of service with all other attendant monetary benefits. For Petitioner : Mr.K.Jayaraman For RR1,4 & 5 : No Appearance For RR2 & 3 : Mr.A.S.Thambuswamy RR 6 to 10 : Mr.V. Govardhanan, M/s. Row & Reddy. O R D E R The petitioners claim that they have been working at Thiruvandar Koil Depot of Food Corporation of India for more than 24 years as temporary daily rated workers as Sweeper/Gardner. According to them, they have been working continuously till 2000. While so, the District Manager of Food Corporation of India by his proceedings in Ref.No.HK/3/3/99-2000 dated 24.04.2000 has directed the Assistant Manager(Depot), Food Corporation of India, Thiruvandar Koil to retrench the services of the seven workers with effect from 24.04.2000 including the petitioners herein. Challenging the said order, the petitioners are before this Court with this writ petition. 2.In the counter filed by the respondents, inter alia, a preliminary objection has been raised in respect of the maintainability of the writ petition. According to the respondents, the petitioners were retrenched, after following the provisions of the Industrial Disputes Act, 1947. Therefore, the petitioners, if aggrieved, should have raised an appropriate industrial dispute under Section 2A of the Industrial Disputes Act. When such an alternative remedy is available, according to the learned counsel for the respondents, this writ petition is not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 3.Since such a preliminary objection is raised, I deem it appropriate to deal with the same at first. The learned counsel for the petitioners would however, submit that the Industrial Disputes Act is not applicable to the petitioners as they would not fall within the definition of “workman” as defined in Section 2(s) of the Act. 4.In my considered opinion, the said contention cannot be accepted. As a matter of fact, two other persons by name S.Koodalingam and V.Kanniammal filed similar writ petitions before this Court and those writ petitions were dismissed by Hon’ble Justice R.Subbiah in W.P.Nos.16337 and 16338 of 2009 holding that the remedy for them is to approach the Labour Court. It is brought to my notice that as against the said order, appeals have been pending before a Division Bench of this Court. 5.In my considered opinion too, the petitioners herein do fall within the definition of Section 2(s) of the Act and therefore, the provisions of the Industrial Disputes Act are very much applicable to them. In the counter filed by the respondents, it is categorically stated that Section 25F of the Act, has been duly complied with. In the typed set of papers, the letters sent by the respondents to the petitioners along with the demand draft towards retrenchment compensation have been filed. It is not in dispute that the retrenchment compensation which was sought to be paid to the petitioners was declined to be received by them. In such view of the matter, I am of the opinion that it is for the petitioners to work out their remedies before the Labour Court. 6.The learned counsel for the petitioners would however, submit that assuming that the Industrial Disputes Act is applicable, the mandatory provisions contained in the said Act in respect of retrenchment have not been complied with and therefore, the impugned order is liable to be set aside. 7.In this regard, reiterating the stand taken in the counter, the learned counsel for the respondents would submit that in this case, Section 25F of the Act has been duly complied with. Thus, this has become a disputed question of fact. 8.The learned counsel for the petitioners would submit that several juniors who were appointed subsequent to the petitioners have been retained, but the petitioners alone have been retrenched. This again is a violation of the provisions of the Industrial Disputes Act. But the learned counsel for the respondents while reiterating the stand taken in the counter would submit that no junior to the petitioners have been retained by the respondent Corporation in service. Thus, this is also a disputed question of fact. https://hcservices.ecourts.gov.in/hcservices/ 9.In my considered opinion, whether the retrenchment is valid; whether the mandatory provisions contained in Section 25F of the Act have been complied with duly by the respondents and whether the juniors to the petitioners have been retained in service, are all disputed questions of fact which cannot be resolved by this Court in this writ petition and the same can be resolved by adducing evidence before the Labour Court. Further, without resolving these disputed questions of facts, it would not be possible for this Court to grant any relief to the petitioners by holding that the retrenchment of the petitioners is illegal. 10.The learned counsel for the petitioners would submit that when the retrenchment has been made illegally, writ petition under Article 226 of the Constitution of India is maintainable. For this proposition, the learned counsel would rely on a judgment of this Court in Alamelu v. The Managing Director, FCI (W.P.No.8657 of 2000 dated 18.02.2005 wherein, a learned single Judge of this Court has entertained the writ petition and set aside the order of retrenchment. Relying on the same, the learned counsel would submit that in the present case also, since the retrenchment is illegal, the writ petition is maintainable. In my considered opinion, there is no substance in the said argument. A perusal of the above judgment would go to show that in that case, it was not in dispute at all before the learned Judge that the mandatory provisions of the Industrial Disputes Act, were not at all complied with by the management. That was an admitted fact and so the learned Judge had no difficulty to hold that the retrenchment was illegal. But in the case on hand, there are serious disputes as to whether the mandatory provisions were complied and whether the juniors to the petitioners have been retained in service or not. It is because of the said disputed questions of fact I hold that the writ petition cannot be entertained. 11.The learned counsel for the petitioner relies on yet another judgment of Hon’ble Mr.Justice P.Jyothimani in W.P.No.8279 of 2000 dated 08.06.2007. A perusal of the said judgment would also go to show that in that case also, it was not in dispute that Section 25F of the Act was not complied with by the management. That is the reason why the writ petition was entertained by the learned Judge and has interfered with the order of retrenchment. In paragraph No.6 of the said judgment, the learned Judge has held as follows:- “6.In view of the above said factual position, without going into the issue as to whether Section 25-F of the Industrial Disputes Act was followed by the Food Corporation of India while passing the impugned order, the writ petition is disposed of by setting aside the impugned orders passed by the third respondent dated 17.04.2000 and the subsequent order dated 20.04.2000, however with liberty to the https://hcservices.ecourts.gov.in/hcservices/ respondents to follow the provisions of Section 25-F of the Industrial Disputes Act in respect of the petitioner, if they are so advised.” 12.Therefore, the said judgment also does not come to the help of the petitioners in any manner. Yet another judgment in W.P.No.10556 of 2006 dated 21.07.2006 passed by Hon’ble Mr.Justice N.Paul Vasanthakumar, on similar facts is also cited before me. The said judgment also does not come to the rescue of the petitioners. 13.The learned counsel for the petitioners further relied the yet another judgment of this Court in W.P.No.24289 of 2006 dated 27.09.2007 wherein, the Hon’ble Mr.Justice A.Kulasekaran took the view that since the petitioner therein had worked for more than 240 days in a period of two calendar years, she was entitled for regularisation. In the present case, the question of regularisation is not before this Court. This is a case relating to retrenchment and if only the retrenchment order is set aside and the petitioners are reinstated in service, then the question of regularisation would be available for this Court to consider. Since I do not find any reason to interfere with the order of retrenchment, there is no occasion for this Court to go into the question of regularisation of the petitioners. 14.It was also argued before me that the petitioners are entitled for regularisation as held in Uma Devi vs. State of Karnataka and others (2006(4) SCC 1). The learned counsel would submit that in paragraph No.53 of the said judgment, the Hon’ble Supreme Court has even directed all the Government organisations to regularise the temporary/casual employees who are working for more than 10 years if their appointments were found irregular but not illegal. In the case on hand, according to the petitioners, the appointments of the petitioners are only irregular but not illegal. But the learned counsel for the respondents would submit that the petitioners were appointed illegally, because there was ban during the relevant time to engage these casual labourers. In my considered opinion, whether the petitioners would be entitled for regularisation or not after their reinstatement in service, cannot be gone into at this stage itself. Therefore, I leave this question open to be raised after any favourable award is passed by the Labour Court. 15.The learned counsel for the petitioners would take me through some documents to show that several persons have been appointed as Sweepers and Scavengers subsequent to the petitioners at Chennai. To this, the learned counsel for the respondents would submit that they are appointed in Chennai because their services are required there, whereas in the depot at Thiruvandar Koil, there is no such requirement. The learned counsel would submit that the entire south zone of the Food Corporation of India cannot be taken as one unit for the purpose of Section 25F of the Act. According to him, each depot https://hcservices.ecourts.gov.in/hcservices/ has to be treated as one unit and the junior most needs to be retrenched under Section 25F of the Act having regard to the seniority in the said Depot. For this proposition, the learned counsel for the respondents relies on the judgment of the Hon’ble Supreme Court in Haryana State Co-operative Supply Marketing Federation Ltd., v. Sanjay (AIR 2009 SC 3155) and he would further submit that if the entire south zone is treated as one unit, in that event, the petitioners have to be transferred to various distant places. The learned counsel for the petitioners would submit that being Sweepers, that course is not possible. In my considered opinion, it is too hard to construe the entire south zone of the Food Corporation of India as one unit. Further, even this question need not be gone into by this Court in this writ petition as it is only the Labour Court which has to consider as to whether the juniors to the petitioners have been retained and whether the entire south zone is to be treated as one unit or not. Therefore, the observations which I have made above shall not in any manner influence the mind of the Labour Court, if the petitioners raise any industrial dispute 16.This writ petition was entertained in the year 2000. Unfortunately, the same has been kept pending for 10 years. If this writ petition had been disposed of long before, the poor petitioners would have atleast worked out their alternative remedy, in time. At this length of time, it is painful to dismiss this writ petition on the ground of availability of alternative remedy. I am conscious of the legal position that mere availability of alternative remedy is not a ground to reject the writ petition after having entertained the same and kept the same pending for several years. Disinclination to entertain a writ petition on the ground of mere availability of alternative remedy, is only a self imposed restriction. It is also the law that in the cases where on certain circumstances, this Court can relax the self-imposed ban and entertain the wit petition. One such situation is that pendency of the writ petition for several years after admission. But in this case, not simply on the ground of availability of alternative remedy, I am inclined to dismiss the writ petition but because there are several disputed questions of facts which cannot be resolved before this Court and the same can be resolved only by way of letting in evidence before the Labour Court. Therefore, I find no option but to dismiss the writ petition with pains however, giving liberty to the petitioners to raise appropriate industrial dispute before the Labour Court. If any such dispute is raised, the Labour Court shall consider the same by giving top priority and dispose of the same as expeditiously as possible. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ jbm To 1.The Managing Director, Food Corporation of India, Barlal Chamba Lane, Head Quarters, New Delhi. 2.The Zonal Manager (South), Food Corporation of India, 2, Haddows Road, Zonal Office, Chennai – 600 006. 3.The Senior Manager, Food Corporation of India, 5/54, Greams Road, Regional Office, Chennai – 600 006. 4.The District Manager, Food Corporation of India, District Office, Cuddalore. 5.The Assistant Manager (Depot), Food Corporation of India, Thiruvandar Koil, Karaikkal Taluk, Pondicherry District. + 1cc to Mr.K. Jayaraman, Advocate Sr.370 + 1 cc to Mr.A.S. Thambuswamy, Advocate SR.374 + 1 cc to M/s. Row & Reddy, Advocate sR.702 W.P.No.11289 of 2000 PKB(CO) Eu 1.2.11 https://hcservices.ecourts.gov.in/hcservices/