JUDGMENT
Dilip Kumar Seth, J.
In Re: CAN 6788 of 2004
The Challenge:
1. This appeal has since been preferred against an order dated 8th June, 2004 passed in WP No. 1017 (W) of 2004 (AST 389 of 2004) by the learned Single Judge. The subject-matter of challenge in the writ petition relates to a proposal recorded in the meeting held on 23rd February, 2004 objected to by the writ petitioner, allegedly in violation of the agreement evidenced in the meeting dated 15th April, 1998 and 5th May, 1998, at page 23A, where 44 hours per week as normal working hours was approved with effect from 1st January, 1998 and overtime for increasing production was extended upto 54 hours a week. This was, however, made subject to the review and revision after consultations with the unions and associations and based on the demand supply gap then prevailing. The minutes dated 5th May, 1998 records that the 54 hours per week was sought to be implemented with effect from 1st June, 1998 subject to making consumables available for smooth working. The question of the recommendation of the 5th Pay Commission was proposed to be thrashed out through representation to be made by the employees concerned to the Government. It is contended that such representation was made but the Government did not agree.
Facts :
2. On earlier occasion the working hours was increased from 37 1/2 hours per week to 44 hours per week in respect of which a notice under Section 9A of the Industrial Disputes Act, 1947 was issued on 16th January, 1988. However, no such notice with regard to the implementation of the minutes dated 15th April, 1998 and 5th May, 1998 has been shown to us. However, in his usual fairness Mr. Mitra admitted that the normal working hours is 44 hours and that there is a dispute with regard to 19% compensation for enhancement of the normal working hours from 37 1/2 hours to 44 hours per week which is yet to be thrashed out. He also admitted that single pay was allowed upto 48 hours above 44 hours per week and that above 48 hours upto 54 hours per week was on double pay.
3. However, within the scope of this writ petition, we cannot look into that aspect of the dispute between the parties. It is only the proposal pursuant to the meeting held on 23rd February, 2004 allegedly enhancing normal working hours from 44 hours to 48 hours, which is under challenge. This minute is at page 143 of the stay application. Therefrom it appears that it was proposed to reduce the present working hours from 54 hours a week to 48 hours a week with effect from 1st April, 2004. Mr. Mitra points out that though the language has been used in the said proposal conversely but in effect it cannot be reduction of working hours to 48 hours a week when admittedly normal working hours was 44 hours a week. This minute also records that the demand for 19% compensation for difference of working hours between 37 1/2 and 44 hours a week was turned down by the Ministry of Finance through its letter dated 9th May, 2001 conveyed to the union. It also records that these 48 hours a week has been fixed due to reduction of requirements pointed out by the Reserve Bank of India for 2004-05.
4. This proposal was challenged before the Bombay High Court in a writ petition being W.P. (L) No. 2261 of 2004 wherein an ad interim order was granted in terms of prayer (d) i.e., restraining the respondents from implementing/ executing the notice dated 15th March, 2004 issued by the General Manager till 19% compensation for the increased working hours between 37 / and 44 hours a week is made available. This 15th March notice was issued on the basis of the proposal dated 23rd February, 2004.
5. On a similar challenge being made before the Andhra Pradesh High Court in W.P. No. 6117 of 2004, by an order dated 27* August, 2004, the Andhra Pradesh High Court was pleased to dispose of the writ petition directing maintenance of status quo as obtaining on the date of the order since the petitioners therein were willing to work without double payment in order to enable the union to pursue its remedy before the Forum under the Industrial Disputes Act, 1947 (1947 Act), namely Conciliation Officer, where a proceeding was pending with direction to Conciliation Officer to dispose of the same expeditiously. It may be noted that this order of status quo was passed following the decision of this High Court (Calcutta) in W.P. No. 10172 (W) of 2004 out of which the present appeal arises.
6. In the said writ petition [W.P. No. 10172 (W) of 2004], by the order appealed against, the learned Single Judge was pleased to hold that the jurisdiction of this Court is not excluded by reason of Section 28 of the Administrative Tribunals Act, 1985 (1985 Act) and take a view that the writ petitioners do not come within the purview of Section 14 of the 1985 Act.
Appellant’s submissions :
7. Mr. Roy, learned Counsel for the appellant, has taken three grounds. First, that in an earlier proceeding between the parties, a learned Single Judge of this Court had taken the view in its order dated 7th January, 1991 passed in CO. No. 9523 (W) of 1988 between the parties herein that the writ petitioners are amenable to Section 14 of the 1985 Act and as such the jurisdiction of Court is excluded. The appeal against this decision was withdrawn by the writ petitioners therein (employees’ union). Therefore, this decision operates as res judicata as between the parties with regard to the question of maintainability of the writ petition before this Court.
8. The second ground he has taken is that even on a correct interpretation of Section 14 read with Section 28 of the 1985 Act, the jurisdiction of this Court stands excluded since the writ petitioners come within the purview of Section 14 of the said Act.
9. The third ground he has taken is that the question involved in this case is related to an industrial dispute between the parties. Whether the said proposal effects change in the conditions of service or not is the question, which is to be decided by this Court. There being an alternative remedy before the Industrial Tribunal which is more efficacious, this Court sitting in writ jurisdiction cannot decide the question. When it is a dispute, which can be decided on various factors dependant on certain facts to be adjudicated by the industrial forum on the justification of the policy decision adopted by the appellant, this Court cannot entertain the writ petition.
Respondent’s submission:
10. Mr. Mitra, however, points out that the decision by the learned Single Judge in the earlier writ petition between the parties would not operate as res judicata since it is purely a question of law and a question of jurisdiction. He relied on the decision in Isabella Johson v. M.A. Susain, . In the said decision, it was held that there cannot be estoppel on a pure question of law and the question of jurisdiction is a pure question of law. Therefore, the decision of the learned Single Judge would not be of any help to Mr. Roy.
When an earlier decision would not operate as res judicata :
11. The proposition of law is not in dispute. There cannot be any estoppel against statute. If the statute confers jurisdiction even if it is held that the jurisdiction is not there, the same cannot operate as res judicata provided it can be shown that the said decision is erroneous and not on fact but on the pure question of law emanating from the statute. However, such question can be decided by a larger Bench. If a coequal Bench is of different view, then the matter is to be referred to a larger Bench.
Whether Section 14 applies to attract the application of Section 28 of the 1985 Act:
12. In view of the contrary view taken by the learned Single Judge in the order appealed against from that of the decision by Hon’ble Paritosh Mukherjee, J., as His Lordship then was, in the order dated 7th January, 1991 in CO. No. 9523 (W) of 1988, we are inclined to decide the question of jurisdiction within the scope and ambit of the 1985 Act. Section 28 excludes the jurisdiction of all Courts except the forum under the Industrial and Labour Legislations and the Supreme Court in relation to matters covered under Section 14 of the 1985 Act. In order to appreciate the said question, we may look into Section 14, which provides that:
“Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court under Article 136 of the Constitution) in relation to-
a) …
(b) all service matters concerning-
(i) …
(ii) a person not being a member of All India Service or a person referred to in clause (c) appointed to any civil service of the Union or any civil posts under the Union; or
(iii) a civilian not being a member of All India Service or a person referred to in clause (c) appointed to any defence service or a post connected with defence,
and pertaining to the service of such member, person or civilian, in connection with affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government.”
* * * * * * * * *
13. Relying on this provision, it is pointed out by Mr. Abhrajit Mitra that the writ petitioners were not appointed in any civil service of the Union nor they were/are holding any civil post under the Union. They are workers within the meaning of the Industrial Disputes Act, the jurisdiction whereof has not been overlapped by the 1985 Act. Therefore, the writ petitioners are not amenable to Section 14 of the 1985 Act. As such the jurisdiction of this Court cannot be excluded. In support of his contention, Mr. Mitra had drawn our attention to Article 323A and 323B of the Constitution of India and pointed out that while the jurisdiction of the Court was excluded by reason of clause (d) of Article 323A(2) while constituting Administrative Tribunal, the Parliament did not exclude the jurisdiction of the Courts in terms of clause (d) of Article 323B(3). Therefore, the provisions of the 1985 Act is distinct and different from the 1947 Act and has to be interpreted in the spirit of Article 323A. Section 28 has not excluded Industrial Tribunal only in view of the spirit of clause (d) of Article 323A(2) so as not to include the workers coming under the Industrial Disputes Act within the scope and ambit of Section 14 of the 1985 Act. He has also drawn our attention to Article 320 of the Constitution of India in order to explain that these writ petitioners were not holding any civil posts.
14. Reference to Article 320 would not be relevant for our present purpose. Similarly, Article 323A and Article 323B would also not be relevant for our present purpose. The only question we are supposed to determine is whether the writ petitioners were holding any civil post under the Union or were appointed in any civil service of the Union. We may note that these civil service and civil post have been used in contradistinction to defence service and post-connected with the defence. This would be apparent from Section 3(k) and Section 3(p) of the 1985 Act defining the post and service respectively. The civil post and civil service has not been defined in the 1985 Act to have a different connotation than to denote the contradistinction with defence service and defence posts. In terms of Section 3(k), ‘post’ has been defined to mean “a post within or outside India” whereas ‘service’ has been defined to mean similarly “service within or outside India”. In such a situation, the word ‘civil service’ or ‘civil post’ used in Section 14(l)(b)(ii) are to be interpreted having regard to clause (iii) following where civilian appointed “to any defence service or a post connected with defence” is included. These two propositions make it clear, having regard to the definition in Section 3(k) and 3(p), that the ‘service’ and ‘post’ in clause (ii) are qualified with the word ‘civil’ only to make a distinction with those of the ‘defence’ and not for any other purpose.
15. There is no dispute that the petitioners were employed in a service pertaining to or in connection with the affairs of the Union or any local or any other authority under the control of the Government of India or a corporation owned or controlled by the Government. Thus, the application of Section 1(b)(ii) in case of the writ petitioners cannot be excluded. As such the writ petitioners come within the scope and ambit of Section 14(l)(b)(ii) of the 1985 Act. Thus, by reason of Section 28, the jurisdiction of this High Court to entertain writ petition concerning matters admittedly covered under the 1985 Act, is excluded.
16. The reference to the decision in State of Orissa v. B.N. Agarwalla, (para 5) would not help Mr. Mitra to support his contention. Inasmuch as in that case, it was a question whether the Tribunal (CAT) could entertain an application after the Industrial Tribunal had published its award covering the same dispute. It was held that the CAT not being an appellate authority in the hierarchy of the forum under the Industrial Disputes Act, it had no jurisdiction to entertain an application in respect of a matter, which was already covered by an award of the Industrial Tribunal since unaltered. In such circumstances, it was held that the Tribunal could not have jurisdiction in respect of a matter dealt with by the Industrial Tribunal.
17. But this does not exclude the jurisdiction of the Industrial Tribunal in respect of a matter where the workmen might come within Section 14 of the 1985 Act to approach the CAT without approaching the forum under Industrial Disputes Act. Inasmuch as Section 28 while excluding the jurisdiction of Courts, saved that of the forum provided under the Industrial/Labour Legislations. Therefore, though a person may be governed by the Industrial/Labour Legislations, yet if he satisfies the test of Section 14 of the 1985, in that event, he can very well approach the CAT at his option. In fact a person coming within the definition of Section 14(l)(b)(ii) has two parallel remedies, one under the Industrial/Labour Forum and the other before the CAT, which, however, are mutually exclusive of each other. But once Section 14 becomes applicable, the jurisdiction of the High Court is excluded by reason of Section 28 thereof.
18. Mr. Mitra has relied on the decision in K.P. Gupta v. Controller Printing & Stationary, . This decision, however, points out that the provisions of the 1985 Act do not exclude the jurisdiction of the Industrial/ Labour Legislations while interpreting the expression ‘corresponding law’ used in Section 28 in reference to the Industrial Legislations. Therefore, this decision supports the view that even if a person comes within the purview and Section 14 of the 1985 Act, he would still have right at his option to approach either the Forum under the Industrial/Labour Legislations or the CAT.
19. The Premier Automobiles Ltd. v. K.S. Wadke and Ors., was decided at a point of time when the 1985 Act did not come into being. It was a case in relation to the exclusion of the jurisdiction of the Civil Court in respect of a matter pertaining to the industrial adjudication. It had held that despite having remedy under the Industrial Legislation, in certain circumstances provided therein, a party had a right to approach the Civil Court as well. Therefore, this decision would not be of any help to us on the question we are supposed to answer.
20. The decision in L. Chandra Kumar v. Union of India, , relied upon by Mr. Mitra in support of his contention with regard to the question emanating from Article 323A and Article 323B, would not be of any help except that the High Court can entertain this dispute only after being routed through CAT, in the Division Bench and not without it.
21. The proposition that a person having an alternative remedy under the Industrial Disputes Act, though has a right to invoke writ jurisdiction since such alternative remedy is not an absolute bar, is being prevented from approaching the High Court since he is covered under Section 14 of the 1985 Act even if the writ petitioners ultimately choose to approach the Industrial Tribunal, does not seem to be of any consequence. If the writ petitioner approaches the Industrial Tribunal, in that event, he can approach this Court in the writ jurisdiction entertainable by a learned Single Judge against an order passed by the Industrial Tribunal/Labour Court. Inasmuch as he would be choosing a forum other than the forum under the 1985 Act due to which Section 28 read with Section 14 would not be attracted on account of its being a matter not related to the 1985 Act. But as soon he comes within the purview of Section 14 of the 1985 Act and he chooses to invoke writ jurisdiction without touching any of the forum under the 1985 Act or the Industrial/Labour Forum, his remedy without being routed through an Industrial Forum would be barred before the High Court in the Single Judge jurisdiction. He also cannot come before the Division Bench without being routed through CAT. Therefore, the jurisdiction of the High Court is closed to him, may be through different provisions. Once the writ petitioners approach the Industrial Forum, in that event, the writ jurisdiction exercisable by a learned Single Judge would be open to it, but once he approaches CAT, he has to come to the Division Bench in terms of the decision in L. Chandra Kumar (supra).
22. The other decision in Voltas Volkart Employees Union v. Voltas Limited (W.A. 1598 of 1999 and CPM Nos. 14197 to 14199 of 1999). ( 2000) cited by Mr. Mitra is also of no help to us even if Section 9A of the 1947 Act is stated to be infringed for availing of the remedy under the writ jurisdiction on the ratio laid down in paragraph 21 therein that remedy in a situation which is emergent and grave in a case where the service conditions were being altered could be entertained only in the writ jurisdiction. In the present case, we are not inclined to decide as to whether this would effect change in the conditions of service or not and at the same time having regard to the exigency of the circumstances, we are not inclined to pass any order other than what we propose hereafter.
Alternative remedy before the Industrial Forum : Not an absolute bar:
23. The other question Mr. Roy has raised is that there is an alternative efficacious remedy before the Industrial Forum. Admittedly, such remedy, though an alternative remedy, would not close the door of this Court before the writ petitioners altogether. In appropriate cases the writ jurisdiction can be invoked despite existence of this alternative remedy. In this case it is pointed out that the provision of Section 9A of the 1947 Act has not been followed. Mr. Roy has pointed out that whether the said proposal would amount to change of condition of service is a disputed question requiring decision dependant on disputed question of fact. However, we do not think that the Writ Court can enter into such disputed question. We do not want to pre-judge the issue. The fact remains that these are questions, which are dependant on question of fact disputed between the parties and can be more efficaciously decided by a forum under the Industrial/Labour Legislations, where evidence can be led, than in a writ proceedings. Therefore, even on the ground of alternative remedy, the writ petition does not seem to be maintainable.
Conclusion :
24. It is open to the writ petitioners to approach before the Industrial Tribunal/Labour Court or the CAT as they may be advised for appropriate relief. Since the writ petition cannot be entertained; and since Andhra Pradesh High Court has passed an order directing maintenance of status quo and the Bombay High Court has granted a blanket, stay; we, therefore, do not think that the case can be thrown away altogether, particularly, when the writ petition was entertained. We, therefore, are of opinion that in the interest of justice the status quo with regard to the working hours of 48 hours with single pay (above 44 hours) may be maintained similarly as directed in the order passed by the Andhra Pradesh High Court.
25. In the circumstances, this application and the appeal are being treated as on day’s list by consent of the parties, since the respective Counsel for the parties have addressed the Court on the merit of the appeal as well. After having considered the rival contentions as discussed above, we dispose of the application and the appeal holding that the writ petition cannot be entertained in this Court in writ jurisdiction in view of Section 28 of the 1985 Act on the ground that the writ petitioners do come within the scope and ambit of Section 14(l)(b)(ii) of that Act. The writ petitioners shall, however, be free to approach the Forum under the appropriate Industrial/Labour Legislations or under the 1985 Act, as they may be advised, for suitable relief.
26. However, in similar terms in respect of 48 hours a week with single pay above 44 hours be continued or maintained subject to the decision of the appropriate Forum or otherwise, as the case may be. In case the appellant requires any of the members of the writ petitioners union to work beyond or exceeding 48 hours a week, in that event, it will follow the system, which was prevalent before 23rd February, 2004; but, however, the appellant shall, at its discretion, not be bound to require any member of the writ petitioners union to work in excess or beyond 48 hours a week.
27. This appeal is, thus, allowed. The order appealed against is hereby set aside. The writ petition is dismissed as not maintainable.
28. There will, however, be no order as to costs.
29. Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
30. Xerox plain copy of the operative part of this order duly countersigned by the Assistant Registrar (Court) be given to the learned Counsel for the parties on usual undertaking.
R.N. Sinha, J.
31. I agree.