Case: State Of U.P.  Vs. U.P.Rajya Khanij Vikas Nigam S.S.

teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions. 44. It is settled law that there can be no estoppel against a statute. If the field was occupied by statutory rules, the employees could get right only under those rules. The High Court was equally bound to consider those rules and to come to the conclusion whether under the statutory rules, the retrenched employees were entitled to absorption either in Government Department or in any other Public Sector Undertaking. Statement, assurance or even undertaking of any officer or a counsel of the respondent-Corporation or of the Government Pleader of the State is irrelevant. The High Court, in our view, ought to have considered the prayer of the Corporation and decided the question if it wanted to dispose of the matter on merits in spite of availability of alternative remedy to the employees. 45. Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of the respondent-Corporation or Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48. To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. 49. It is contended on behalf of the employees that the Corporation was not right when it stated that there was no work and several projects came to be closed. It was also contended that many employees were absorbed by the Corporation and there was an element of pick and choose. The said action was arbitrary, discriminatory, unreasonable and violative of Articles 14, 19 and 21 of the Constitution. Regarding loss caused to the Corporation, according to the Samiti, it was the result of wrong and improper decisions of the Corporation and the State Government. Poor employees should not suffer on that count. 50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside.The High Court was obviously in error in passing the above order. The State and the Corporation, therefore, filed Special Leave Petition in this Court which was registered as Civil Appeal No. 5473 of 2005. It was contended before this Court that after difference of opinion between two Honble Judges, the matter was placed before a third Judge who decided it and directed to place it before a Division Bench which ought to have been done and the case ought to have been placed before a Division Bench. Even if Review was rejected against the order passed by the third Judge, proper procedure was required to be followed which was not done. The Senior Judge (Lucknow Bench) also ordered to place the matter before a Division Bench. The order passed by the Single Judge, therefore, could not be said to be legal and lawful.We have given most anxious and thoughtful consideration to the rival contentions of the parties. So far as preliminary objection raised by the Corporation before the High Court is concerned, in our considered view, the same wasand ought to have been upheld. It was urged before the High Court on behalf of the Corporation and the State Government that the writ petition was premature inasmuch as no retrenchment had been effected. Several disputed questions of fact were involved in the petition. If the contention of the Samiti was that there was illegal closure of Undertaking or there wasof wages by the employer, appropriate proceedings could have been initiated under Industrial Law. In fact, one of the Judges of the Division Bench upheld the contention and observed that the employees could have claimed closure compensation under Section 25 FFF of the Act or could have approached prescribed authority under the Payment of wages Act relying upon Section 33C(2) of the Act or Section 6H(2) of the U.P. Industrial Disputes Act. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that "the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed". (emphasis supplied).36. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the head note of All India Reporter (AIR), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court.Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by aIt has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that ais not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained aalbeit wrongly and granted the relief to the petitioner.39. On the facts and in the circumstances of the case, particularly in view of assertions by the Corporation that its work had been substantially reduced; it was running into losses; the question was considered by the Board of Directors and it was resolved to retrench certain employees, it would have been appropriate, had the High Court not entertained the writ petition under Article 226 of the Constitution. [See also Scooters India v. Vijai E. V. Eldred, (1998) 6 SCCThere is yet one more reason. In the High Court, the Corporation filed an application stating therein that regarding absorption of employees, statutory rules had been framed by the State Government in exercise of power under the proviso to Article 309 of the Constitution. A prayer was, therefore, made to allow the application to bring statutory rules on record and to consider them. The Court, however, rejected the prayer. In our opinion, the High Court was not right in rejecting such prayer. If there were statutory rules and such rules provide for absorption of employees on certain grounds and on fulfillment of some conditions laid down in those rules, it was the duty of the High Court to consider those rules and to decide whether under the statutory rules, such absorption could be ordered.43. After all, the High Court was considering the prayer of the petitioners to grant a writ in the nature of mandamus. It was, therefore, expected of the High Court to keep in view the relevant provisions of law. The High Court mainly relied upon an assurance said to have been given by the Secretary on behalf of the Corporation that excess employees would be absorbed either in the Government Department or in other Public Sector Undertakings. From the record it appears that it was the case of the Secretary of the Corporation that no such assurance was given by him to the Honble Court. But even if he had given such assurance, it was of no consequence since in the teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions.Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of theor Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48.To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party.The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable.