SCA/14320/2006 1/38 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14320 of 2006To SPECIAL CIVIL APPLICATION No. 14322 of 2006 with SPECIAL CIVIL APPLICATION NO 14404 TO 14406 OF 2006 For Approval and Signature: HONOURABLE Mr. JUSTICE H.K. RATHOD ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter 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 ? ================================================= GEMABHAI ABAHYSINH BARIA & 2 - Petitioner(s) Versus BHARAT SANCHAR NIGAM LTD., THRO' GENERAL MANAGER & 1 - Respondent(s) ================================================= Appearance : MR TEJAS M BAROT for Petitioner(s) : 1 - 3. None for Respondent(s) : 1 - 2. ================================================= CORAM : HONOURABLE MR.JUSTICE H.K.RATHOD SCA/14320/2006 2/38 JUDGMENT Date : 25/07/2006 ORAL JUDGMENT 1.Heard learned Advocate Mr. Mihir Thakor with Mr. Tejas M. Barot for petitioners in this group of petitions. This group of petitions was earlier circulated before the service bench of this Court (Coram : Hon'ble Mr. Justice D.H.Waghela,J.) on 21.7.2006. The order passed is reproduced as under: “Although there is no mention of any labour law in the cause title and the learned counsel is thoroughly confused in his submissions about the grievance and alleged violation of any particular law or rules, he asserted and insisted that these were matters under the labour laws and may be sent for hearing by the appropriate Bench. Accordingly, at the instance of the learned counsel, the office is requested to place these matters before the Court taking up labour matters. SCA/14320/2006 3/38 JUDGMENT Such practice of circulating the matter for admission and urgent orders in the form of service matter and then insisting upon its transfer to another Bench is deprecated in view of the waste of time and energy, not to mention the harmful effect likely to be caused to the unwary petitioners.” 2.Before the service bench of this Court, contention was raised by the petitioners that the present group of petitions pertains to matters under the labour laws and may be sent for hearing before the apprpriate bench. Then, this group of petitions came up before this court. In petition, in cause title nowhere it is mentioned as to whether the matter is connected with the labour laws or not. Following averment has been made in the petition : “In the matter under Article 226 of the Constitution of India; And In the matter under Article 14 of SCA/14320/2006 4/38 JUDGMENT the Constitution of India; And In the matter about order dated 30th June, 2006 seeking to illegally terminate the services of petitioners as temporary regular Mazdoor And In the matter between” It is also required to be noted that it is nowhere mentioned in the petition as to which provision of labour law has been attracted in this petition or violated by the respondents while passing the order of termination against petitioner. I have perused entire petition. Such averments have not been made in the memo of petition either specifically or generally. When the matter was opened before this Court, question was asked by this court to the learned Senior Advocate for the petitioner as to how these matters are pertaining to the matters under the labour laws because this court is having jurisdiction only in labour matters. It was answered by the learned Senior Advocate that the petitioner is temporary regular mazdoor, therefore, he is covered by the definition SCA/14320/2006 5/38 JUDGMENT of 'workman' given under sec. 2(s) of the ID Act, 1947, therefore, present petitions are labour matters. Except that, for satisfying the requirement, no other submission is made. In the present petitions, order dated 30.6.2006 – notice for removal from service is challenged by the petitionres. It is alleged against the petitioners that during the regularization as a regular mazdoor, you have furnished false information and committed grave misconduct for employment purpose and rendered unfit and unsuitable for continuing in service. Before passing this order on 30.6.2006, four notices were served upon the petitioner to show cause. Explanation given by the petitioner was not found satisfactory, therefore, notice dated 30.6.2006 for removal from service has been issued. Notice for removal from service has to be considered,therefore, it is reproduced as under: “No. Q-10/BMP/SDOT BCH/06-07 Dtd.30.6.2006 Sub : Reg. Notice of removal from the service. As per SDE (Admn.), Bharuch letter No. E- t/RM/Rectt./77 dtd. 06.08.2001 regarding regularization of TRM to RM, it had gone through the documents submitted by you and found that, SCA/14320/2006 6/38 JUDGMENT (1)You produced working days for the period of 01.01.1985 to 31.10.1985 under Shri K.M. Baria, LMT, RE Division, Baroda and countersigned by Shri MI Patel AET, RE Division Baroda. But as per the statement of Shri K.M. Baria, dtd. 29.07.2004, addressed to DE (Vigilance), O/o. GMTD, Bharuch, he was not working on the same pst w.e.f. 13.04.1985 onwards. (2) You also submitted records of working days for the period of 01.01.1985 to 28.02.1985 under Shri AI Shaikh, SIT Jambusar and countersigned by SDOT Bharuch vide MR No. 41585/7 and 41585/19 respectively. (3)The above reveals that working days certificates for the period of 01.01.1985 to 28.02.1985 from the two separate units. Thus, the said documents reveals that the working days certificate produced by you for the period mentioned above for getting employment are false. SCA/14320/2006 7/38 JUDGMENT You were given opportunities by serving notices vide this office letter No. (1) Q-BMP/01-02 dtd. 13.8.2001 (2) Q-BMP/TRM/03- 04/dtd.27.1.2004 (3) Q-BMP/TRM/03-04/dtd. 1.3.2004 (4) Q-BMP/TRM/03-04/dtd. 13.4.2004 Explanations given by you are not satisfactory as per charges framed against you and monthing is clear in your reply. Thus, during the regularization as RM, you have furnished false informations and committed grave misconduct for employment purpose and renders unfit and unsuitable for continuing in service. I, Shri KV Parmar, SDOT, Bharuch hereby giventhe notice to Shri Bharat Mathur Patel, TRM Hinglot that, is services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice served to him.” SCA/14320/2006 8/38 JUDGMENT (4)As per the contention raised by the learned Senior Advocate Mr.Mihir Thakor, the petitioners are workmen covered by the definition of workman under section 2(s) of the ID Act, 1947, and, therefore, present petitioners are the labour matters. If that is so, then, such termination can be challenged by the petitioners before the labour court/industrial tribunal under the machinery of the ID Act, 1947. Section 2(A) of the ID Act, 1947 is available to petitionres to raise an industrial dispute against such termination which can be referred to for adjudication. The Respondent BSNL is covered by the definition of industry under section 2(j) of the ID Act, 1947 and the challenge to order of termination is covered by definition of section 2(k) of the ID Act, 1947. So, all ingredients are satisfied for approaching the forum under the machinery of the ID Act, 1947 which is also SCA/14320/2006 9/38 JUDGMENT made clear in Rule 8 relied upon by the petitioner. This is the alternative equally effective statutory remedy available to petitioners and labour court/industrial tribunal can also examine the question as to whether the principles of natural justice have been violated or not and whether the departmental inquiry is necessary or not in such a case and whether the statutory rules of departmental inquiry can be enforced against respondent or not can also be examined by the labour court/industrial tribunal. It being a preliminary issue, labour court/industrial tribunal has jurisdiction to decide the same and they are competent enough to grant full relief to petitioners in case if the termination order is set aside with reinstatement, continuity of service and full back wages for intervening period but the labour court cannot grant interim relief while exercising powers under section 10(1) of the ID Act, SCA/14320/2006 10/38 JUDGMENT 1947. Non availability of interim relief cannot give any right to petitioners to contend before this court that this court must entertain petition since labour court is not having power to examine matter for interim relief. Termination order is based on misconduct. It is a settled law laid down by the apex court that merely because the forum before which the alternative remedy is available is not having power to grant interim relief, it cannot become a ground to entertain the writ petition. Here, since the petitioners can challenge the impugned action under the machinery of the ID Act, 1947, these petitions cannot be entertained. (5)Another contention raised by the learned Senior Advocate Mr. Thakor relying upon item no. 8 and 9 of the rules is that the action is also violative of the principles of natural justice. Therefore, item no. 8 and 9 of the rules are reproduced as under: “8. Despite conforment of SCA/14320/2006 11/38 JUDGMENT temporary status,the services of a casual labourer may be dispensed with in accordance with the relevant provisions of the Industrial Disputes Act, 1947 on the ground of non availability of work. A casual labourer with temporary status canquit service by giving one month's notice. 9. If a labourer with temporary status commits a misconduct and the same is proved in an enquiry after giving him reasonable opportunity, his services will be dispensed with. They will not be entitled to the benefit of encashment of leave on termination of services. “ (6)Relying upon the said clauses of the rules, it was submitted by Mr. Thakore that in case of misconduct, inquiry is necessary. This inquiry as contemplated under rule 9 cannot suggest only full flagged inquiry. Status of the petitioner is temporary regular SCA/14320/2006 12/38 JUDGMENT mazdoor. He is not a permanent employee governed by the statutory rules framed under Article 309 of the Constitution of India. Therefore, from the notices referred to herein it prima facie appears that the respondents have followed the procedure to give reasonable opportunity and to prove misconduct in inquiry. Four notices were given to the petitioner before taking the final decision. Reply given by the petitioner was considered before taking the final decision. These are undisputed facts emerging from the record, therefore, the submission made by the learned Senior Advocate Mr.Mihir Thakore that the respondents have committed breach of the principles of natural justice in passing the impugned order and, therefore, writ petition is maintainable is not correct and as such, the decision in case of UP State Spinning Company Ltd. Versus R.S. Pandey and another reported in 2005 (8) SCC 264= JT 2005 (12) SC 242 is not applicable to the peculiar SCA/14320/2006 13/38 JUDGMENT facts of this case. Learned Advocate Mr. Thakor has relied upon paragraph 11, 12 and 16 of the said decision. Same are, therefore, reproduced as under : “11.Except for a period when Article 226 was amended by the Constitution (Forty Second Amendment)Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitaiton. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy.If somebody approaches the High Court without availing alternative remedy SCA/14320/2006 14/38 JUDGMENT provided, the High Court should ensure that he has made out a strong case or there exists good grounds to invoke extra ordinary jurisdiction. 12. Constitution Benches of this court in KS Rashid and son versus Income Tax Investigation Commission, Sangramsinh v/s. Election Tribunal, Kotah, in Union of India v/s. TR Verma State of UP versus Mohd. Mooh and KS Venkatraman and Co. (P) Ltd. v. State of Madras held that Article 226 of the Constitution confers on all the High Courts a very vide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The court, in extra ordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. 16. If, as was noted in Ram and Shyam SCA/14320/2006 15/38 JUDGMENT v. State of Haryana and Ors. [AIR 1985 SC 1147], the appeal is from “Caeser to Caeser's wife the existence of alternative remedy would be a mirage and an exercise in futility.In the instant case the writ petitioners had indicated the reasons as to why they thought that the alternative remedy would not be efficacious. Though the High Court did not go into that plea relating to bias in detail, yet it felt that alternative remedy would not be a bar to entertain the writ petition. Since the High Court has elaborately dealt with the question as to why the statutory remedy available was not efficacious, it would not be proper for this court to consider the question again. When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy, this court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in First SCA/14320/2006 16/38 JUDGMENT Income Tax Officer, Salem v.M/s. Short Brothers (P) Ltd. [1966 (3) SCR 84] and State of UP and Ors. v.M/s. Indian Hume Pipe CO. Ltd. [1977 (2) SCC 724]. That being the position we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby tom ove the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. Relying upon the aforesaid decision, he SCA/14320/2006 17/38 JUDGMENT vehemently submitted that in case of violation of the principles of natural justice, normally, High Court can interfere in such matters. Here, looking to the notices of termination read with rule 9, it is not clear that it suggests full flagged inquiry which is in the mind of the learned senior Advocate Mr. Mihir Thakore. Inquiry contemplated under rule 9 is not interpreted or defined or for that,no submission is made, therefore,whatever steps being taken before coming to the conclusion by the respondents, reasonable opportunity was given. Considering the issuance of four notices before taking the final decision as referred to herein above, it cannot be said that it is a case of no opportunity. In view of the notices issued by respondents and reply given by petitioner and consideration thereof in the final order, prima facie, it cannot be said to be a case of no opportunity and, therefore, it is prima facie incorrect to contend that there is breach of the principles of natural justice. The process SCA/14320/2006 18/38 JUDGMENT undertaken may be satisfying the inquiry as mentioned in rule 9. SO, decision relied upon by Mr.Thakore in case of UP State Spinning Company Ltd. Versus R.S. Pandey and another (supra) would not be helpful to the petitioner in the facts of this case because considering rule 9 read with notices of termination, there is no prima facie breach of the principles of natural justice because opportunity was given by issuing notices and reply of petitioners were considered by respondents before taking final decision. In Binny Ltd. And anotehr v. V.Sadasivan and others AIR 2005 SC 3202, apex court observed as under in para 29, 31 and 33 : “29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or SCA/14320/2006 19/38 JUDGMENT a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsbury's Laws of England 3rd ed. Vol. 30, "a public authority is a body not necessarily a county council, municipal corporation or other local authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public SCA/14320/2006 20/38 JUDGMENT and not for private profit." There cannot be any general definition of public authority or public action. The facts of each case decide the point. 30. xxx 31.The decision of the employer in these two cases to terminate the services of their employees cannot be said to have any element of public policy. Their cases were purely governed by the contract of employment entered into between the employees and the employer. It is not appropriate to construe those contracts as opposed to the principles of public policy and thus void and illegal under Section 23 of the Contract Act. In contractual matters even in respect of public bodies, the principles of judicial review have got limited application. This was expressly stated by this Court in State of U.P. v. Bridge and Roof Co., (1996) 6 SCC 22 and also in Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 295. In the latter case, this Court reiterated that the interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a SCA/14320/2006 21/38 JUDGMENT contract is violated, ordinarily, the remedy is not a writ petition under Article 226. 33.We are unable to perceive any public element in the termination of the employees by the appellant in Civil Appeal No. 1976 of 1998 and the remedy available to the respondents is to seek redressal of their grievance in civil law or under the labour law enactments especially in view of the disputed questions involved as regards the status of employees and other matters. So also, in the civil appeal arising out of SLP (Civil) No. 6016 of 2002, the writ petition has been rightly dismissed by the High Court. We see no merit in the contention advanced by the appellant therein. The High Court rightly held that there is no public law element and the remedy open to the appellant is to seek appropriate relief other than judicial review of the action taken by the respondent company. “ [Emphasis supplied.]. Decision in case of RS Pandey (supra) relied upon by the learned Sr. Advocate Mr. Thakore is going against his submission because in that case SCA/14320/2006 22/38 JUDGMENT order passed by High Court was set aside by entertaining writ petition against the order of termination. In para 20 of said decision, it is observed as under: Para 20 “Accordingly, the conclusion is inevitable that the High Court was not justified in entertaining the writ petition. Usually when writ petition is entertained notwithstanding availability of alternative remedy and issues are decided on merits, this court is slow to interfere merely on the ground of availability of alternative remedy. But the facts of the present case have special features, which warrant interference.” Here, looking to the facts of the case on hand, special features of the case on hand are not present as prior notices were served before issuance of notice of termiantion, rule 9 of the rules, it cannot be said that there is no inquiry at all and, therefore, this case is not having such special features which warrant interference and, therefore, petitions cannot be entertained SCA/14320/2006 23/38 JUDGMENT in view of the availability of alternative remedy. In New Okhla Industrial Development Authority versus Kendriya Karamchari Sahkari Grih Nirman Samiti 2003 (3) Supreme 617, it is observed as under: “Held, A High Court is not deprived of its jurisdiction to entertain a petition merely because in considering petitioner's right to relief question of fact may fall to be determined as pointed out in Gunwant Kaur v. Municipal Committee (AIR 1970 SC 802). In a petition under Article 226, the High Court has jurisdiction to try issues of law and fact. Where, however, the petition raises complex question of fact, the court should not entertain the petition. In Mahanta Moti Das v. SP Sahid (AIR 1959 SC 942) the High Court refused to go into the question as to whether trusts were public or private trusts as the question had involved investigation of complicated facts and recording of SCA/14320/2006 24/38 JUDGMENT evidence. This view was upheld. Thus, if there is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence, it should not be decided in a writ proceedings (See Union of India v. TR Verma AIR 1957 SC 882).If disputed questions of fact araise and the High Court is of the view that those may not be appropriately tried in a writ petition, the High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit. In a petition under Article 226, the High Court has jurisdiction to try both issues of fact and law. When petition raises complex questions of fact which may for their determination require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition, the High Court should ordinarily decline to try the petition. Thus a High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the SCA/14320/2006 25/38 JUDGMENT petitioner's right question of fact may fall to be determined. Ultimately the question is one of discretion which is to be exercised in conformity with judicial principles. “ Similarly, in recent decision in Samjana M. Wig v/s. Hindustan Petroleum