JUDGMENT
D.K. Seth, J.
The relief sought for:
1. In this case the Union has approached this Court in writ jurisdiction for implementation of Clause 8(iii) of the Bipartite Settlement dated April 3, 1996 (Annexure “P-4”), in view of the fact that in terms of the said Clause by virtue of certain agreement, certain amount was paid by the employer to the employees of the Braithwaite Burn & Jessop Construction Co. Ltd. (BBJ), which sought to recover the said advance at the time of retirement, as is apparent from Annexure “P- 12” of the writ petition.
Preliminary objections by BBUNL:
2. Mr. P.S. Sengupta, learned counsel for the respondent BBUNL, a holding company, has raised three objections to the maintainability of the writ petition. The first one is that the claim that has been lodged herein, is a subject matter of a disputed question of entitlement, which can only be decided by an Industrial Tribunal and not by this Court. The second ground was that even if, it is not a disputed question, it can be recovered under Section 33-C(1) of the Industrial Disputes Act, 1947, since the claim is founded on a Bipartite Settlement, which does not stand on a footing higher than that of an award, which has no statutory force to be enforced through writ jurisdiction. Therefore, the writ jurisdiction cannot be invoked in the present case. The third question raised is that the said question is a subject matter of conciliation proceeding. Thus having resorted to the alternative remedy, the petitioner cannot come before this Court to seek the self-same remedy.
Petitioners contention:
3. Mr. Bikash Bhattacharyya, learned counsel for the petitioners, contends that the claim has not been founded on any disputed question. On the other hand, at every point of time the BBJ has assured the Union that payment would be made as soon as the approval of BBUNL would come and in anticipation of such approval, advance amounts were paid. But, at the time of retirement, this was sought to be deducted from the terminal benefits. It is not a disputed question of fact. It is an existing right. The same right is being allowed to every category of staffs. Therefore, the same cannot be denied in so far as the sub staffs are concerned. Therefore, all these three grounds that have been taken cannot be sustained. He further contends on merit that the respondents had allured the union to wait by pointing out to the approval of BBUNL and even to the extent of giving advance, by reason whereof the union did not take any steps to approach the authority under the Industrial Disputes Act and, therefore, they cannot turn round and question the same. He had relied on a decision of this Court in the Workmen represented by West Bengal Medical and Sales Representatives Union v. Indian Drugs and Pharmaceuticals Limited, 2002 (92) FLR 78 and Mackinnon Mackenzie & Co. Ltd. v. Audrey D’Costa and Anr., in support of his contention.
Submission of BBJ:
4. The learned counsel for the BBJ had relied on its affidavit and pointed out to Annexure “P-l” and contended that as on June 26, 2001, the conciliation is pending, in respect of the subject matter, which is involved in this petition and adopts the submissions of Mr. Sengupta and contends that in view of the pendency of the proceedings, this writ petition cannot be maintainable.
Submission of BBUNL:
5. Mr. Sengupta in reply contends that this claim does not flow from any admitted proposition, for which no adjudication is necessary. On the other hand, it is a disputed question. BBJ has no authority to pay the same without the approval of BBUNL. The agreement, that was arrived at, was subject to the approval of BBUNL. The moment it is so subjected, it cannot be a question of an admitted claim, in respect whereof the decision cited by Mr. Bhattacharyya can be applied. Mr. Sengupta had relied on a few decisions to which reference should be made at an appropriate stage.
Facts:
6. I have heard the respective counsel at length. In order to appreciate the situation the facts may be referred to.
On July 26, 1995, the Ministry of Industry had issued a memorandum, which provided:
“…..The new Dearness Allowance (DA) formula as indicated in Annexure III of below Board level Office Memorandum (OM) would also be applicable to the unionised staff workers of Public Sector Enterprises (PSEs) where the agreements for revision of wages have already been concluded by the management on the basis of the guide line issued by DPE vide OM dated April 12, 1993 and January 17, 1994 on the same conditions …..”
There was a settlement between the Union and BBJ before the said memorandum was issued, namely on December 16, 1988. The Union had submitted the Charter of Demand in 1990. Pursuant to the said Charter of Demand, a Bipartite Settlement was arrived at on April 3, 1996. The said Bipartite Settlement contained a Clause 8(iii), which provided as follows :
“(iii) Any change in the Variable DA as per M 2(50)/86/BPE/WC dated July 26, 1995 from DPE in this regard will be implemented simultaneously (as shown in Annexure-II) as and when the same is implemented for other categories of employees in the establishment subject to approval of Authorities.”
After this agreement, several correspondences were exchanged between BBJ and the Union The main thrust of BBJ was to maintain a congenial harmonious peaceful industrial environment by requesting the Union to await the approval of BBUNL as contemplated in Clause 8(iii) above, for implementation of the said Clause in respect of the sub staffs. Admittedly, BBUNL did not grant the approval in terms of the said Clause 8(iii). Though, the said Clause 8(iii) was implemented in respect of other categories of staffs, as is apparent from the letter dated August 31, 1999, issued by BBJ, but that in respect of sub staffs could not be implemented on account of the constraint, namely the approval of BBUNL not being forthcoming.
In the circumstances, ultimately, the matter was brought before the Assistant Labour Commissioner, which was titled as implementation of the VDA as per Bipartite Agreement of 1996, as is apparent from Annexure “P-9”. It appears from Annexure “P-9” that the Assistant Labour Commissioner had requested BBJ to implement the said Clause in respect of sub staff in the line of the staff members and to confirm the same. This request was made by the Deputy Labour Commissioner after several joint conferences aimed at. resolving the dispute in the process of conciliation. But the BBJ could not agree with the same. On the other hand, by its letter dated November 29, 1999, informed the Union that it could not implement the said Clause in respect of sub staff on account of the constraint (sic), which is known to the Union itself. But, another letter dated March 25, 2000, the BBJ pointed out that the Bipartite Agreement dated April 3, 1996 covered the period from October 1, 1990 to September 30, 1995.
Clause 8 of the said agreement was related to Industrial Dearness Allowance (variable). The terms covered under the Clauses 8(i) and 8(ii) were implemented after signing of the agreement, the implementation of Clause 8(iii) was kept in abeyance with the consent of both the parties to be implemented along with other categories of employees in the establishment subject to approval of authority. There has been a series of threadbare discussions and negotiations at different forums at different times over the implementation of Clause 8(iii) when it was implemented for officers in November 1997. On Unions long standing agitation and deputation, VDA for only the staff in BBJ was implemented w. e.f. August 1, 1999 in line with BWT on special consideration taking the approval from authority, but that was not implemented with respect to sub-staff. A serious thought was being given by BBJ management, BBUNL and Union for the interpretation of Clause 8(iii), which remains lacking some clarity. The matter was finally referred to BBUNL for its decision on the subject.
In the above backdrop, the decision of BBUNL received by BBJ was communicated to the Union pointing out that BBJ has no alternative than to abide by the same, requesting the Union to comply with the decision of BBUNL. The decision of BBUNL, however, is not available on record. Be that as it may, it appears that BBUNL did not grant its approval for implementation of Clause 8(iii) so far as the sub staffs are concerned. In these circumstances, at the time of retirement, certain amount paid, as advance, in anticipation of the approval of BBUNL, was sought to be deducted from the terminal benefit of the respective employees. It was stated in paragraph 4(vi) of the writ petition.
Right or entitlement?
7. It appears from the Memorandum dated July 26, 1995 that it relates to the period of April 1, 1992 till April 1, 1995. As such the said question has to be read in the line of the expression used in the said memorandum itself It proceeds to prescribe that it could be applicable in respect of the agreement, where revision of wages have already been concluded by the management, according to the guidelines issued on the same conditions. Whereas the Union is claiming in respect of payment for a period from October 1, 1990 till September 30, 1995 and beyond, and that too in terms of a settlement,- which was concluded after July 26, 1995. Thus, it appears that this Bipartite Settlement does not come within the purview of the memorandum dated April 26, 1995. That apart the said Clause 8(iii) was made subject to the approval of BBUNL. Therefore, it was not a concluded agreement. It was subject to. approval of BBUNL. Until it is approved no claim could be materialized so far as the Union is concerned.
The BBUNL was not a party to the bipartite settlement. Whether it would agree to approve or not or whether it might have justifiable reasons to refuse the approval, are altogether questions different from the questions involved in the bipartite settlement, it is absolutely the discretion of the BBUNL. There is no material before this Court to examine the justifiability of the ground of reservation of BBUNL with regard to the terms contained in Clause 8(iii) above. Therefore, this Court cannot examine the same. Be that as it may, the question does not appear to be one, where it can be said that under the said Clause, the Union is entitled to the benefit, for which compelling them to approach the authority under the Industrial Disputes Act would be an onerous task. As soon as the question becomes a disputed question, this Court cannot enter into the same. The decision cited by Mr. Bhattacharyya in Indian Drugs and Pharmaceuticals Ltd. (supra) is distinguishable on facts. Inasmuch as, there the claim was not in dispute, where it was held that the workmen should not be driven to resort to Section 33-C(2). Whereas, in the present case, the question is a disputed one. It is a question of entitlement. This Court cannot determine the question of entitlement.
That apart, there is no prayer for issuing direction upon the BBUNL to grant approval or otherwise. The examination of the prayer will show that the entire claim is as against the BBJ. There is nothing, which appears from the prayer that the BBUNL is refusing approval on any ground, which is not available to it or is mala fide or arbitrary. Therefore, this Court also cannot undertake such an exercise to direct BBUNL to grant approval.
Be that as it may, the question being disputed one, the decision in Mackinnon Mackenzie & Co. Ltd. (supra) also cannot be applied in the case, where the very foundation of the claim is in dispute, and which requires determination.
Apprehension : Remedy
8. Mr. Bhattacharyya, had apprehended that there is a policy of disinvestments. Therefore, the Union would be non-suited if this Court does not interfere. This, contention is based on the apprehension that a remedy by way of the procedure provided in the Industrial Disputes Act would be prolonged one and, therefore, the writ jurisdiction should be invoked.
I am afraid that such a contention can be accepted, where this Court, if at all, could propose to grant relief upon determining the entitlement of the Union to the amount claimed in terms of Clause 8(iii). That apart, by reason of disinvestments, BBJ may be out of the definition of state within the meaning of Article 12 of the Constitution of India and may not be amenable to writ jurisdiction, but till then it will be subject to the remedies provided under the ID Act. We may now examine whether the relief asked for could be granted in exercise of writ jurisdiction.
In the letter dated March 25, 2000, it has been pointed out that Clause 8(iii) is lacking some clarity. Therefore, it is also a question of interpretation of the said Clause, which is to be adjudicated. This Court cannot do so. Admittedly, it is not in dispute that the agreement is a bipartite settlement within the meaning of Section 18. If there is any dispute with regard to the interpretation thereof, in that event, the remedy is provided under Section 36-A of the I.D. Act. Therefore, this Court, in exercise of writ jurisdiction, cannot purport to interpret the said provision, particularly, when it contains a Clause that such a condition is subject to approval by the BBUNL.
If it is accepted that the claim is admitted one, in that event, it can be recovered under Section 33-C(2) or Section 33-C(1), as the case may be, through an appropriate proceedings. In that event, this question, as has been said to be disputed, has to be examined having regard to the question as to whether this is incidental to such determination or not. This is also a question of determination of disputed question of facts, which in exercise of writ jurisdiction, this Court cannot undertake. The fact remains that though BBUNL was not a party to the agreement, in fact, it is being asked to grant its approval in respect of an agreement between BBJ and the Union. This Court cannot direct BBUNL to do so.
The extraordinary writ jurisdiction in the High Court can be invoked for establishing a legal right. Such legal right must be an existing right. Whether such legal right is an existing or not, if disputed, can very well be examined by the High Court when it is raised in a proceeding under Article 226. But that question of examination is confined to the extent of finding out as to whether the legal right exists or not. But it never empowers the High Court in exercise of writ jurisdiction to determine the entitlement to such legal right. The examination may be incidental to its exercise of jurisdiction, but it can never be a primary one. It can also extend to the concept of lifting the veil or piercing the curtain if it is a hidden one. But, at the same time, the High Court must remind itself that in the garb of lifting the veil or piercing the curtain, it cannot undertake the exercise of determining the entitlement to the legal right, which requires determination of disputed question of fact. However, it depends on the facts of each individual case. It has to be decided on the basis of the merit of each case, having regard to the facts and circumstances and the materials placed before the Court. The Writ Court cannot usurp the jurisdiction of the Courts or Tribunals, which primarily exists for determining such question by entering into the facts and taking evidence.
The scope of writ jurisdiction: Disputed question of fact:
The jurisdiction of the High Court while exercising writ jurisdiction does not permit it to determine disputed question of fact and/or take evidence with regard thereto. The Court is supposed to avoid determination of such facts. The jurisdiction under Article 226 is a discretionary jurisdiction; normally the jurisdiction exercised under Article 226 is in the nature of summary proceeding, it does not require detailed examination of evidence. D.L.F Housing v. Delhi Municipal Corporation, , Moti Das Mahant v. S. Sahi, : as may be had in a Suit Union of India v. Mohammed Ghaus, , Bokaro and Ramgur Ltd. v. State of Bihar, ; Gunwant Kaur v. Municipal Committee, ; Indu Bhushan Gupta v. State of U.P., . The object of Article 226 is the enforcement and not the establishment of right Sohan Lall v. Union of India, or title Amar Singh v. State of Rajasthan, ; N.S.E. Works v. Union of India, . This principle is also extended even to mixed question of facts and law Venkateswara Firm v. C. T. O., AIR 1968 SC 784 (788); MadhuLimaye, in re., ; D.D.A. v. Lila D. Bhagat, . A disputed question of fact is not investigated in a proceeding under Article 226. This is, however, a rule of discretion and of exclusion of jurisdiction. Hence the Court is not, in a proceeding under Article 226, incompetent to decide an issue of fact, which can be determined from the materials on record Century Spinning & Mfg. Co. v. Ulhasnagar Municipal Council, . Hence, the Court cannot dismiss in limine a Petition under Article 226, merely observing that it raises a question of fact, without determining whether the question can be decided on the materials on the record, whether the Petitioner has an efficacious alternative remedy and whether the case is otherwise fit for exercise of the writ jurisdiction, Om Prakash v. State of Haryana, (1970) U.J.S.C. 481; Jagdish Prasad Sastri v. State of U.P., e.g., that it raises important constitutional questions Hanif v. State of Assam, . It follows that the Court should not reject a petition under Article 226 on the ground that it raises a question of disputed facts, where the question can be determined from the materials on the record Chaudhury L.G. v. Secy., Govt. of Bihar, . However, the question may be different, where it involves infringement of Fundamental Rights. In the present case, we are not concerned with infringement of Fundamental Rights, but of legal rights as such we may not deal with the said proposition.
In the present case, on the principle referred to above, we may now examine the facts and materials placed before it, in order to ascertain, as to how far in the present case this Court can interfere. Admittedly, the right that is claimed, is flowing from a Bipartite Settlement between BBJ and the Union. BBUNL was not a party to it. The term contained a clause that it was subject to approval by BBUNL. BBUNL declined approval. An agreement, which was not a concluded one, an agreement, which was depending on the grant of approval by a third party, does not create an enforceable legal right under the agreement. As pointed out earlier, on July 26, 1995, memorandum related to the period between April 1, 1992 and April 1, 1994 in respect whereof, wage revision settlement is already concluded. Whereas the Union is claiming for the period between October 1, 1990 and September 30, 1995 and beyond, and in respect of which the settlement with regard to revision of wages was arrived at bipartite level on April 3, 1996. Thus, these are questions, which do not bear out a case in support of the existence of an enforceable legal right. That too the interpretation of the relevant clause was stated to be lacking clarity. In any event, the disagreement to grant approval by the BBUNL is not the subject matter of the present writ petition.
Can the Bipartite Settlement be enforced through writ jurisdiction?
9. In fact, in the present case, the relevant clause of the Bipartite Settlement is being sought to be enforced through writ jurisdiction. It is a well-settled proposition now that writ jurisdiction cannot be utilized for the purpose of execution of an award of the Tribunal under the I.D. Act, since an award has no statutory force, though it might be treated to be a decree, and for which adequate provision has been made for execution or implementation thereof.
A Bipartite Settlement cannot be treated at a level higher than that of an award. A Bipartite Settlement has no statutory force. Neither it has the force of a decree. It is nothing more than a contract between the parties. It is binding between the parties under Section 18 of the I.D. Act. But, it has to be enforced through the machinery provided under the I.D. Act. If there is any doubt or dispute with regard to its interpretation, in that event, it can be resolved by resorting to Section 36-A of the I.D. Act. The Writ Court cannot assume the jurisdiction to do so.
The decisions cited:
Mr. Sengupta had relied on the decision in I. J. Filip v. State Bank of Travancore and Ors., 1987 FLR 863. He relied on paragraph 18 of the said decision, where it was held that the Bipartite Settlement entered between the parties cannot be enforced through Article 226. He also relied on a decision in K. M. Mukherjee v. Secretary and Treasurer S.B.I, and Ors., 1969- I-LLJ-50 (Cal), where this Court had held that an award cannot be enforced by the High Court and a settlement does not stand in a footing higher than that of an award. As such it cannot be enforced through the writ jurisdiction. In the said decision, it was held that an award of an Industrial Tribunal has no more statutory force than that of a decree of a Civil Court. It can be executed or otherwise implemented in the manner laid down by law. It cannot be enforced by prerogative writ of Mandamus.
Having regard to the facts and circumstances of the present case and the materials as are available here, it does not make out a case of lifting the veil or piercing the curtain. Mr. Bhattacharyya has not addressed the Court on the said principle. His argument was based on Article 14 and 16 of the Constitution of India. He contended that the same benefit was accorded to the staffs but denied to the sub-staffs. According to him, this is discriminatory. He contended that such discrimination is arbitrary and as such the Writ Court should invoke its jurisdiction.
I am afraid that such a question can be gone into in the present case. The parties had entered into an agreement at bipartite level. It had agreed that such term would be subject to approval of BBUNL. Therefore, the Writ Court cannot cross the barrier. A class was deprived of a particular benefit, while another class was allowed. But there is no material before this Court to enter into such question. Neither this was the scope of this writ petition.
Whether BBUNL has justifiable reason or not, is a question, which cannot fall for adjudication within the jurisdiction of the Writ Court. The question that requires adjudication is the question of entitlement to the legal right. Until the entitlement is adjudicated, one cannot claim to have an enforceable legal right based on such entitlement, which is yet to be adjudicated. In exercise of writ jurisdiction, the Court may enforce legal right, but it cannot determine entitlement. The scope of writ jurisdiction is confined to the enforcement of fundamental or legal right. But where the very right is in dispute and in order to enforce such right, an exercise is required to be undertaken to determine the entitlement to such right, the writ jurisdiction cannot be invoked for undertaking such an exercise.
Effect of availing or resorting to alternative remedy:
10. Alternative remedy is not an absolute bar for invoking writ jurisdiction, is a settled proposition of law. But where alternative remedy is resorted to before approaching the writ Court, in such a case, the writ Court cannot interfere.
It appears that the question is pending before the Conciliation Officer, who is in seisin of the matter, as would he appearing from Annexure “P-1” to the affidavit-in-opposition of BBJ, Since the Union had adopted the alternative remedy and Authority under the said Act is in seisin of the matter, I do not think that this Court can interfere with the matter.
Mr. Sengupta has also relied on Dropad Mittal v. M. Blika Vidyalaya, 1994(3) SLR 182 (Allahabad) to support his contention. In the said case, it was laid down that without exhausting the efficacious alternative process, one cannot approach the Writ Court. He also relied on Ganesh Nayak and Ors. v. Land Acquisition Collector and Ors. 65 CWN 908. In the said decision, it was held that if there is an alternative remedy and if the party had chosen to adopt such alternative remedy, in that event, this Court should dismiss such application in limine.
Order:
11. For all these reasons, this writ petition fails and is dismissed. However, this will not prevent (sic) the Union from espousing its cause before the appropriate forum under the Industrial Disputes Act, as the case may be. The apprehension that the disinvestments will non-suit them, is wholly unfounded in view of the fact that by reason of transfer of shares, the company will not be dissolved. It will no more remain a state within the meaning of Article 12 of the Constitution, but an industry. If the Union has any claim, in that event, that can be enforced through the machinery provided under the Industrial Disputes Act.
12. There shall be no order as to costs.
13. Xerox certified copy of this Judgment be made available to the parties on an urgent basis, if applied for.
14. All parties concerned are to act on operative part of this Judgment and Order on the usual undertaking.