IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.3006 OF 1983 WITH SPECIAL CIVIL APPLICATION NO.4174 OF 1983 For Approval and Signature The 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? --------------------------------------------------------- SHRI SHIVSHANKAR S. PATHAK & ORS. VERSUS THE STATE OF GUJARAT & ORS. --------------------------------------------------------- Appearance: In SCA 3006/83: MR ASIM PANDYA, for the Petitioners. MR JM THAKORE, Advocate General, with MR MG DOSHIT for Respondents No.1, 2 & 3. In SCA 4174/83: MR ASIM PANDYA, for the Petitioners. MR MG DOSHIT for Respondents. --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision:03/03/1997 C.A.V. JUDGMENT As the facts and grounds which have been taken by the petitioners in these Special Civil Applications are common, the same are being disposed of by this common order. In Special Civil Application No.3006/83, the learned counsel for the petitioner made a statement before this Court that he does not press this Special Civil Application for petitioners No.2, 3, 15, 16 and 19. Writ petition on behalf of these petitioners accordingly stands dismissed. 2. The petitioners in both these Special Civil Applications were engaged as Karkoons in the irrigation scheme relating to Karjan Dam. It is admitted case of the petitioners that they were appointed on daily wages. In Special Civil Application No.3006/83, the petitioners have given the date of their employment. In Special Civil application No.4174/83, the petitioners have given their date of appointment in para-3 of the petition. These writ petitions have been filed by the petitioners challenging therein the action of the respondents to terminate their services. Challenge to the termination has been made by the petitioners in both these Special Civil Applications, on the ground that the same have been made in violation of provisions of Section 25F of the Industrial Disputes Act, 1947 (hereinafter referred to as the `Act 1947'). The next ground of challenge has been taken that the termination of services of the petitioners is arbitrary and violative of Articles 14 and 16 of the Constitution of India as the termination is stated to be made wholly on arbitrary and perverse reasons. Reply to the Special Civil Applications has been filed by the respondents wherein the details of the working of the petitioners as daily wagers at the Karjan Dam Project has been given. The Court on the last date of hearing of the matters has given a direction to the State government to file a concise statement of actual working days of the petitioners during the period from 21st June 1982 to 20th June 1983 and in compliance of the said direction, further affidavit in reply has been filed by Shri Y.I. Dhundia, Executive Engineer. In Special Civil Application No.4174/83, no such statement has been filed. From the further affidavit filed in the Special Civil Application No.3006/83, it is clear that petitioners No.1, 6, 8, 10, 13, 15, 16, 17 and 19 have completed 240 days' actual working during the aforesaid period, but as the learned counsel for the petitioner has made a statement that he does not press this petition in respect of petitioners No.2, 3, 15, 16, & 19, in Sp.Civil Application No.3006 of 1983, and the petition so far as these petitioners are concerned is dismissed, it can be said that only the petitioners No.1, 6, 8, 10, 13, & 17 have completed 240 days' actual working. The rest of the petitioners have not completed 240 days actual working during the aforesaid period. This affidavit has not been controverted by the petitioners. The learned counsel for the petitioners contended that as per the chart filed by the respondents, many of the other petitioners have completed 240 days of actual working in the year earlier to the period in dispute and as such, the provisions of Section 25F of the Act 1947 have to be complied with in their cases also. The learned counsel for the petitioners, in support of his contention placed reliance on the following decisions: 1. 1986 GLH 1024 -- P.W.D. Employees' Union v. State of Gujarat 2. 1984(II) Lab.IC 974 -- The Kapurthala Co-operative Bank Ltd., Kapurthala v. The Presiding Officer, Labour Court, Jullundur & Ors. 3. 1982 (II) LLJ 186 -- Ramasamuz Upadhyaya v. Vinubhai M. Mitra. 4. 1986 Lab.IC 98 : 1985(II) LLJ 539 -- The Workmen of American Express International Banking Corporation v. The Management of American Express International Banking Corporation. 3. On the other hand, the learned counsel for the respondents firstly raised a preliminary objection that this Special Civil Application is not maintainable as the petitioners have an efficacious alternative remedy under the provisions of the Act 1947 by way of raising industrial dispute. Carrying further this contention, the learned counsel for the respondents contended that the petitioners are challenging the validity of the termination of their services on the ground of violation of Section 25F of the Act 1947 and in such case, the petitioners have to avail of the remedy provided under the said Act and not this writ petition under Article 226 of the Constitution of India. It has next been contended that otherwise also, the provisions of Section 25F of the Act 1947 are not attracted in the present case as the construction of dam by the State Government through irrigation department are sovereign functions. It is urged that the provisions of Section 25F of the Act 1947 will be attracted only in case of those petitioners who have worked for 240 days in the twelve calendar months preceding the date of termination and not in the case of those petitioners who have not completed 240 days. It has next been contended that even if it is accepted by this Court that the provisions of Section 25F of the Act 1947 are attracted in the present case, then too the relief of reinstatement may not be granted as the project in which the services of the petitioners were engaged has already been closed in the year 1986. In support of this contention, the learned counsel for the respondents placed reliance on the following decisions of Hon'ble Supreme Court as well as this Court. 1. (1996) 2 SCC 293 -- Chief Conservator of Forests & Anr. v. Jagannath Maruti Kondhare & Ors. 2. 1993(2) GLR 1490 -- Vinodrai N. Ratnatar v. State of Gujarat 3. AIR 1996 SC 1565 -- State of Himachal Pradesh v. Suresh Kumar Verma 4. I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. 5. The learned counsel for the petitioners does not dispute the fact that other than petitioners No.1, 6, 8, 10, 13, 16, 17 and 19 the other petitioners have not worked for 240 days during the period from 21st June 1982 to 20th June 1983. It has further been admitted by the learned counsel for the petitioners that the Karjan Project on which the petitioners were engaged on daily wages has been closed after completion of work in the year 1986. 6. On the other hand the learned counsel for the respondents also does not dispute the fact that the petitioners were `workmen' and the Project on which they have been engaged was `industry' within the meaning as given to these two terminologies in the Act 1947, in case his contention that construction of the Dam is sovereign function of the State, is not accepted by this Court. 7. In the Special Civil Application No.4174/83, the petitioners have given out their total work from the date of their appointment to the date of termination to be more than 1100, 800 and 627 days. They have made further specific averment in the Special Civil Application that in this case the provisions of Section 25F have been violated by terminating their services. These facts have not been controverted by the respondents in the reply filed to the Special Civil Applications. In this case the uncontroverted position is that the petitioners have completed 240 days in the twelve calendar months from the date of joining the services. The learned counsel for the respondents in both the cases admitted that before termination of the services of the petitioners compliance of provisions of Section 25F of the Act 1947 have not been made. 8. First of all, I consider it to be appropriate to take two preliminary issues, which have been raised by the learned counsel for the respondents regarding maintainability of these Special Civil Applications. 9. Re.: Availability of alternative remedy. The action of the respondents of terminating the services of the petitioners has been challenged in both these petitions on the ground of violation of provisions of Section 25F of the Act 1947. So the petitioners are challenging the termination of their services on the ground of violation of statutory provision. It is not in dispute that this statute itself provides a form for redressal of the grievance of the nature made by the petitioners in the present case. I find sufficient merits in the contention of the learned counsel for the respondents that where the petitioners allege breach of a particular provision of statute, then the remedy provided under the said statute, for redressal of the grievances, should have been availed of. In the present case, the petitioners have alternative efficacious remedy available under the provisions of the Act 1947 and as such their approach straightway to this Court under Article 226 of the Constitution, is difficult to appreciate and accepted. In para 12 of the Special Civil Application No.3006 of 1983, the petitioners have stated that they have not other prompt, efficacious alternative remedy except by way of this petition, which is wholly incorrect. In para 6 of the Special Civil Application No.3006 of 1983 as well as in para 9 of the Special Civil Application No.4174 of 1983, the petitioners have clearly indicated that they were aware of the fact of legal position that they have alternative remedy available in the matter by way of raising industrial dispute. The reasons which have been given by the petitioners to bye pass that statutory remedy are as follows: (i) the petitioners belong to weaker section of the society; (ii) they do not have sufficient means to go for a long drawn out litigation before the authorities constituted under the Act 1947 which would take years together for disposal of their cases and further appeal and ultimate recourse to this Hon'ble Court under Article 226/227 of the Constitution of India cannot be ruled out. (iii) driving the petitioners at this particular remedy will result not only in time cost but also in terms of money cost to both the sides. (iv) in the said litigation, the petitioners have to spend more than what they may eventually gain. (v) it is a case where the statutory provisions have been breached by the respondents and as such, the petitioners are absolutely justified in bringing this petition before this Court in order to get all things right by intervention of this Hon'ble Court. 10. In case the reasons which have been given by petitioners are taken to be sufficient and adequate to bye pass or circumvent the statutory remedies provided then in all the cases the statutory alternative remedy provided would render nugatory. The remedy provided under the Act 1947 are cheaper and meant for speedy adjudication of the industrial disputes. I fail to see any justification given, not to avail the alternative remedy, by the petitioners on the ground that they belong to weaker sections of the society. It is not the question to which section of society the petitioners belong. It is a question where statutory remedy is provided for adjudication of industrial disputes with which the petitioners have come up before this Court and as such, the said remedy has to be availed of. The Parliament in its wisdom has considered the remedies provided in the Act 1947, a cheaper and speedy remedy for the labourers (workmen) and the petitioners are unable to give out how that remedy is onerous or costly. Another reason that the petitioners do not have sufficient means to go for a long drawn out litigation before the authorities constituted under the Act 1947 which would take years together for disposal of their cases, is also hardly of any relevance and substance. In the Labour Court and Industrial Tribunal to which reference of industrial dispute is made, cheaper remedy is provided because there the advocates are not allowed to appear and cases of workmen are to be dealt with either by themselves or through their representatives who may be the office bearers of the workers' Union. It is not the case that the remedy of writ petition is provided free of costs. On the contrary the litigation by way of writ petitions before this Court is costly as the advocates charge fees as well as the other expenses are also heavy in comparison to the litigation before the Labour Court and Industrial Tribunals. Another justification given that the Labour Court or Industrial Tribunal takes years together for disposal of the cases and their decisions are further subject to appeals and ultimate recourse to this Court under Article 226/227 of the Constitution is hardly of any substance. The litigation here in this Court also equally takes long time in disposal thereof. The present cases themselves are example of that. The petitions have been filed in the year 1983 and the same have come up for hearing in the year 1997, i.e. after about 13 years. It is understandable that in case this Court is able to dispose of the matters within few months or within a year, then there may be some justification in the aforesaid saying of the petitioners, but where this Court itself takes years together to decide the matters, how far it is justified for the petitioners to approach this Court directly under Article 226 of the Constitution in case where efficacious alternative remedy has been provided to them under statute. It is not that where the petitions of the year 1983 only are pending before this Court, but still the petitions of the year 1970s and 1980s are pending before this Court. Another grievance that the decision of the Labour Court or Industrial Tribunal is subject to appeal and ultimate recourse to this Court under Article 226 or 227 of the Constitution is concerned, it is suffice to say that the decision of this Court in the petition filed under Article 226 or 227 of the Constitution is also subject to appeal, i.e. L.P.A. and then further appeal before the Hon'ble Supreme Court. Apart from this, merely because decision of an authority is subject to appeals, the statutory remedies providing alternative remedies cannot be allowed to be bye passed or circumvented. The legislature would have been aware of the position of law that the decision given by the Labour Court or Industrial Tribunal may be subject to appeal or ultimate recourse to this Court under Article 226/227 of the Constitution or the Hon'ble Supreme Court under Article 136 of the Constitution and still a specific provision has been made providing a redressal forum for adjudication of industrial disputes under the Act 1947. The other reason given is equally of without any substance. The petitioners have come up with the case that they have to spent in the said litigation more than what ultimately or eventually they would gain, but nothing material has been produced on this point nor it is understandable how this impression, the petitioners are carrying. As stated earlier, the remedy provided under the industrial legislation is cheaper and effective comparing to other remedies provided by way of civil suit or petition under Article 226 of the Constitution. Naturally the Act 1947 has been enacted by Parliament for the benefits of low paid workmen and that remedy has been provided though other remedies were available, knowing well in its wisdom that it is cheaper and speedy remedy for this class of persons. 11. Normally this Court would not interfere directly in the writ jurisdiction resorted by the petitioners without having recourse to alternative remedy available under the statute. In such case, this Court directs the parties to have recourse to the alternative remedy available under the statute. Where adequate remedy can be read in statute, plea of resorting to writ remedy under Article 226 or 227 of the Constitution must be discouraged. Reference in this respect may have to the decision of Hon'ble Supreme Court in the case of Shyam Kishore v. Municipal Corporation, Delhi, reported in 1993(1) SCC 22. For adjudication of the dispute regarding violation of Section 25F of the Act 1947, alleged to be made while terminating the services of the petitioners, the effective remedy is by way of raising of industrial dispute and a reference thereof to the Labour Court or Industrial Tribunal. That remedy is more effective and lesser time consuming and cheaper. There the parties have sufficient opportunity to produce the evidence on the question of facts in the form of oral and documentary evidence. There are many questions of fact in such matters which can only be adjudicated by taking evidence of the parties. In the writ jurisdiction this Court does not take the evidence nor the disputed questions of facts can be gone into by this Court under Article 226 of the Constitution of India. 12. In the matter where the grievance has been made that the retrenchment has been made of the workmen without making compliance of the provisions of Section 25F of the Act 1947, is a question of fact and since in order to arrive at a conclusion or for recording a finding, some investigation/enquiry that has to be embarked upon, would be beyond purview of Article 226 of the Constitution of India. In the case of K.D.Rashid v. Income-tax Investigation Commission and others, reported in AIR 1954 SC 207, the Apex Court has observed that the remedy provided for in Article 226 of the Constitution is a discretion remedy and the High Court has always t....R that the aggrieved party can have an adequate or suitable relief elsewhere. The next case to be referred is Union of India v. T.R. Verma reported in AIR 1957 SC 882. In this case the service of the respondent therein was terminated and challenge has been made to the order of termination of services by the respondent by filing a writ petition under Article 226 of the Constitution before the Punjab High Court. The High Court has accepted the Special Civil Application. The Union of India appealed to the Hon'ble Supreme Court and the judgment of the High Court was set aside by the Apex Court on the ground of availability of alternative remedy and in this connection, I would like to refer to the observations made by Apex Court. ...T......T.......T.......T...J....T.......T.......T...T......T......T... It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, 1950 SCR 566 (AIR 1950 SC 163)(A) "the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Artic IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII are good grounds therefor." 13. In the case of State of U.P. v. Mohammed Nooh, reported in AIR 1958 SC 86, the Apex Court has observed that "the fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decision of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any." 14. The case of Basant Kumar Sarkar and other v. Eagle Rolling Mills Ltd. and others, reported in AIR 1964 SC 1260, also relate to an industrial dispute and as such, I would like to refer to the facts giving rise to this case. In the said case, the validity of Section 1(3) of the Employees' State Insurance Act, 1948 was challenged before the Patna High Court by the workmen of the Company on the ground that the aforesaid section was violative of Article 14 of Constitution and suffers from the vice of excessive delegation. Certain notices were issued to the workmen curtailing their benefits. The validity of the Act was upheld but the Apex Court held that the proper course for the workmen was to challenge the notices and the circulars under Section 10 of the Industrial Disputes Act or under Sections 74 and 75 of the Employees' State Insurance....R connection, I would like to refer to the following observations of the Apex Court: "Before we part with these appeals, there is one more point to which reference must be made. We have already mentioned that after the notification was issued under S.1(3) by respondent No.3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent No.1 issued notices giving effect to the State government's notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by them under the relevant provisions of the Act. It was urged by the appellants before the High Court that these notices were invalid and should be struck down. The argument which was urged in support of this contention was that the respondent No.1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quantitatively to the benefits under the Scheme which had been brought into force under the Act. The High Court has held that the question as to whether the notices and circulars issued by the respondents No.1 were invalid, could not be considered under Article 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under S.10 of the Industrial Disputes Act. It is true that the powers conferred on the High Courts under Article 226 are very wide, but it is not suggested by Mr.Chatterjee that even these powers can taken in within their sweep industrial disputes of the kind which this contention seeks to raise. Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible under Ss. 74 and 75 of the Act." 15. The remedy provided for violation of Chapter 5A of the Act 1947 in the Act itself is effective and efficacious remedy. The other contention is that it is a discretion of the State Government to make reference or may not make a reference under Section 10 of the Act 1947, and