JUDGMENT
S.S. Sandhawalia, C.J.
1. The two
meaningful issues that came to the fore in this set of cases referred for an authoritative decision by the Full Bench may well be precisely formulated in the terms following : –
1. Whether the statutory reference of a dispute under Section 10 of the Industrial Disputes Act, 1947 is an adequate and efficacious legal remedy for the enforcement of rights created
under the said Act?
II. If so, whether such an alternative remedy and similar remedies under the Act should be exhausted before seeking the relief in the writ jurisdiction under Article 226 of the Constitution?
2. The relevant facts and issues of law are admittedly common and identical in these 13 writ petitions ant! learned counsel for the parties therefore, are agreed that this judgment will govern all of them. The representative matrix of fact may be take from Civil Writ Jurisdiction Case No. 5724 of 1983, Ram Moban Chaudhary v. Chairman, Mithila Kshetriya Gramin Bank, Darbhanga- The writ petitioner therein claims to have been temporarily appointed as a cleric by the Chairman of the respondent Mithila Kshetriya Gramin Bank, Darbhanga, and, thereafter performed his duties from the 17th July, 1981 till the 5th October 1981. His services were apparently terminated thereafter, but it is claimed that by several subsequent appointment letters the petitioner served in the same capacity for varying periods commencing from the 17th July 1981 to the 20th July 1982. It is sought to be claimed that the petitioner has rendered 336 days of continuous service within the meaning of Section 25B of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), and on these premises, is entitled to the benefit under Section 25F of the said Act. Apprehending that the petitioner’s services would be terminated, he institued a title suit being Title Suit No. 65 of 1982 in the Court of the First Munsif, Darbhanga and secured a temporary injunction restraining the defendant Bank from terminating the petitioner’s services. Against this injunction, the respondent Bank filed a miscellaneous appeal before the District Judge of Darbhanga, which was allowed and the injunction granted was vacated. Consequent thereto the respondent Bank (vide Annex. ‘1’), by a wholly non-stigmatic and innocuous letter terminated the writ petitioner’s services as these were no longer required. Thereafter, the petitioner chose to withdraw the title suit and he preferred the present writ petition, claiming the relief wholly under Section 25F of the Act.
3. At the very threshold stage of
addmission. the learned counsel for the petitioner had asserted that the remedy under Section 10 of the Act was not an adequate remedy and, consequently the writ petitioner was entitled to invoke the writ jurisdiction straightway without resorting to or exhausting the statutory remedy admittedly available to him under the Act. In view of the significance of the matter involved, the case was referred fur an authoritative decision by a Full Bench.
4. In the counter-affidavit filed on behalf of the respondent Mithila Kshetriya Gramin Bank, it has been categorically averred that the writ petitioner has not put in continuous service of 336 days within twelve calendar months and instead has worked for certain periods with several breaks under several appointment letters, and, as such his case is not covered by Section 25B of the Act. It is further staled that the appointment letters of the petitioner were under an agreement, which in terms specified the date of termination of service and he was not entitled to even a notice before his termination, in view of the proviso to Section 25-F(a). It is reiterated that the order of termination of the petitioner was a removal simpliciter without any stigma attached thereto. The averments with regard to the petitioner having preferred a civil suit are admitted. The categoric stand taken by the respondent Bank is that the petitioner is not entitled to come directly to the High Court without first agitating the matter before a hierarchy of tribunals provided under Act which provides an adequate and efficacious remedy to him for the enforcement of his alleged right.
5. On the aforesaid re’sume’ of representative facts, two significant issues noticed at the outset arose for consideration. Yet before coming to grips with question No. 1 aforesaid, it is necessary for the purpose of terminological exactitude to clarify as to what is said to be indicated by a ‘legal remedy’ therein. Now in order to be labelled as a remedy in the eye of law it must be capable of providing adequate redress to the claimant and to rectify the wrong of which he is aggrieved. It is now well settled that any purported remedy, which is illusory in its nature and is unable to provide adequate relief with reasonable efficacy is in strictitude no remedy at all This has been so held authoritatively even during the emergency
when by the Forty-second Amendment a constitutional bar was sought to be erected against the exercise of the writ jurisdiction where any other remedy was available. By Section 58(2) of the Constitution (Forty-second Amendment Clause (3) has been inserted in Article 226, which read as follows : —
“No petition for the redress of any injury referred to in Sub-clause (b) or Sub-clause (c) of Clause (1) shall be entertained, if any other remedy for such redress is provided for by or under any other law for the time being in force”.
The question and true import of the words “any other remedy”, which posed a constitutional bar to the exercise of the writ jurisdiction had come up for pointed consideration before many of the High Courts. A Full Bench of five Judges in Ahmedabad Cotton Mfg. Co. Ltd. v. Union of India, AIR 1977 Guj 113 took the view that the constitutional fetter on the jurisdiction of the Court has to be construed very strictly and ‘any other remedy’ would mean not merely an illusory remedy but one which is in essence real and capable of redressing the injury effectively. The same conclusion was arrived at by the Full Bench in Wahidi Begum v. Union of India, AIR 1980 Punj & Har 291 in the following words : —
“Thus as a result of the aforesaid discussion. I hold that the words ‘any other remedy’ occurring in Article 226(3) would mean a real remedy capable of affording relief for the injury envisaged in Sub-clause (b) and (c) of Clause (1) of Article 226”.
To the same tenor are the observations of the Full Bench in Govt. of India v. National Tobacco Co. of India Ltd., AIR 1977 Andh Pra 250 and a Division Bench of our own Court in Ranchi Club Limited v. State of Bihar, AIR 1978 Pat 32. Consequently at the very threshold it must be made clear that hereinafter whenever a reference is made to a remedy what is intended is a legal remedy capable of affording adequate and efficacious redress to the suitor and not merely one which is illusory in nature,
6. Having cleared the ground as above, one may proceed to notice the representative attack on behalf of the writ petitioners spearheaded by their counsel Mr. T. K. Jha. He submitted with his usual vehemence that the statutory reference under Section 10 of
the Act is no remedy in the eye of law because it is dependent on the opinion of the Government to refer or not to refer the industrial dispute to a Board, a Labour Court or a Tribunal. In essence the argument is that the statutory reference suffers from the serious handicap and is hedged in by the discretion of the Government in making a reference or otherwise and, therefore it cannot be classified as a legal remedy at all. In sum, it was submitted that it is a misnomer to construe Section 10 as providing a remedy at all, far from the same being adequate or efficacious. Firm reliance was placed on Hari Rai v. Union of India, 1978 BBCJ (HO 350, which in turn, has been followed in Hirdai Mahto v. Union of India, 1978 BBCJ (HO 459 and Mahabir v. D. K. Mital, 1980 Lab IC 119 (Pat).
7. As would be manifest hereinafter I am inclined to take the view that the issues herein are concluded by the binding precedent in the Premier Automobiles Ltd. v. Kamalakar Santaram Wadke, AIR 1975 SC 2238, which, in turn stands reiterated forcefully in Rohtas Industries Ltd. v. Rohtas Industries Staff Union AIR 1976 SC 425. However, since a vigorous attempt has been made to distinguish the aforesaid cases and considerable support is given to this stand by the aforementioned three Division Bench judgments of this Court, it becomes necessary and somewhat refreshing to examine the matter on principle and the larger intent of the statute.
8. The Industrial Disputes Act was enacted way back in 1947. The predecessor statute was the Trade Dispute Act of i929. As is manifest from the larger scheme of the Act itself and particularly so from the Statement of Objects and Reasons for its enactment, it had come up for pointed notice that the Trade Disputes Act had made no provision for the proceedings thereunder for the settlement of an industrial dispute either by reference to a Board of Conciliation or to a Court of Inquiry or a Labour Court or Industrial Tribunal. This defect was sought to be remedied during the last World War by the enactment of Rule 81-A of the Defence of India Rules, empowering the Central Government to refer industrial disputes to adjudication and to enforce the award. The said rule having been found to have provided a useful remedy, the Industrial Disputes Act. 1947 was in turn enacted to
provide for remedies and forums for the enforcement of the statutory rights created therein. A reference to the exhaustive definitive Section 2 would indicate that the Legislature has with meticulous care defined the concepts and the relevant terms pertaining to industrial taw and the disputes arising thereunder. They include such basic definition* as those of ‘industry’, ‘workman’, ‘appropriate Government’, ‘award’. ‘conciliation proceeding’. ‘lay off, ‘strike’, ‘retrenchment’, “settlement”, ‘trade union’, etc. Chapter II of the Act then provides for the requisite forums under the statute, namely. Works Committee. Conciliation Officer. Board of Conciliation. Court of Inquiry, Labour Court, Industrial Tribunal. National Tribunal and also the qualifications or disqualifications for the personnel manning the same.
9. Of particular interest is Chapt. III, which contains Section 10 pertaining to the reference of industrial disputes to Boards, Courts or Tribunals. Its exhaustive provisions have been supplemented by the insertion of Section IOA with regard to the voluntary reference of disputes to Arbitrators as well. Chapter IV of the Act in detail lays down the procedure. powers and duties of the various authorities thereunder, like Conciliation Officer, Board. Labour Court. Tribunal and the National Tribunal. Equally it provides for the forum of the report of the award of these tribunals and the publication of those reports and awards and the persons on whom the same would be binding. Whilst Chapter V provides for strikes and lock-outs, of particular interest is Chapt. VA, which was added by Act 43 of 1953, with regard to ‘lay off and ‘retrenchment’. Therein Section 25-B in great detail provides the definition of ‘continuous service’, whilst Section 25F confers the right that any workman who has been in such continuous service for not less than one year shall be retrenched only on the conditions specified therein. Vide Chap. VB inserted by Act 32 of 1976 special provisions relating to lay off, retrenchment and closure in certain establishments were , made. Chapter VII contains miscellaneous provisions including Section 33-C which provides for recovery of money due from the employer etc., whilst Section 38 confers the power to frame rules under the Act. Appended to the Act are as many as five Schedules and, in exercise of the powers under the aforesaid
Section 38, the Industrial Disputes (Central) Rules, 1957, containing as many as 80 detailed rules, along with Schedules containing forms etc. required under the law have been framed. In Babu Ram Upadhyay’s case AIR 1961 SC 751 it has been categorically held that the rules validly framed under an Act in effect become a part and parcel thereof.
10. Even a bird’s eye view of the provisions of the Act and the Rules framed thereunder can leave little manner of doubt that this statute fashions new industrial rights for the workmen and spells out specific remedies for the enforcement thereof. It envisages a hierarchy of forums and Tribunals providing in detail the procedure for approaching them and the publication of their awards and their enforcement, as also their binding nature- It is manifest that these rights under the Act are by and large the creatures of the statute and granted by the mandate of the Legislature. To put it precisely, most if not all, of these rights spring from that statute and contertninously it is a fountain-head also for the remedies for their enforcement, which are provided in great and sometimes meticulous detail. It seems unnecessary to elaborate the matter, but the broad vista of the Act makes, it manifest that it is a self-contained Code unto itself, creating and conferring the industrial rights thereunder and fashioning forums and the remedies for their enforcement as an integrated whole.
11. Now, it could not be disputed before us that if not all yet most of the industrial rights conferred on the workmen were pure creatures of the statute not necessarily having any foundation or root in the general or if one may say so, in the common law. Indeed some of these rights are in derogation of and in essence an overriding of the ordinary law. \ The learned Additional Advocate General. Mr. Ram Balak Mahto was on the firm ground in pin-pointing particularly Section 25-F as being wholly a freshly fashioned industrial right in the context of retrenchment, it was pointed out that the workmen were sought to be brought within the ambit of that right only by a legal fiction of the definition of ‘continuous service under Section 25-B. Thereby, what in fact is not continuous or uninterrupted service, in common and ordinary parlance is, by the mandate of law deemed to be a continuous service by a workman qua bis employer.
Learned Counsel then referred to Section 16 of the Specific Relief Act to highlight his point that the general law disapproves of and frowns on the specific enforcement of a contract of personal service, and provides only the remedy of damages for wronglful termination. It is in direct opposition to the general law and as an exception thereto, the Act carves out the right of a workman to claim continuance in service and, in fact, secure specific enforcement of a contract of personal service against the will of the employer, if retrenchment compensation had not been paid in accordance with lection 25-F of the Act. It was therefore contended, rightly and plausibly, on behalf of the respondents that many and most of these rights flow from the Act, and, if one takes away the particular provision or repeals the Act. all these rights would evaporate into thin air. Therefore, when a right stems from a statute, even in derogation of the general law, the remedy of its enforcement, if expressly provided must also be sought for within the same statute. It was common ground before us that the Act lays down detailed procedure and methodology for claiming these rights and provides a hierarchy of forums and Tribunals for their adjudication and ultimate enforcement. Therefore, on the well established uno flatu rule the right and remedy are irrevocably marned and are not to be divorced from each other. In other words, if a statute confers a right and in the same breath provides for a remedy for enforcement of such right the remedy provided by the statute must be resorted to. This hallowed principle was enunciated by Lord Tenterden, Chief Justice, in Doe v. Bridges. (1831) 1B & Ad 847 at p. 859 as under
1 “Where an Act creates an obligation and enforces the performance in a specified manner we take it to be a general rule that performance cannot be enforced in any other manner”
The aforesaid enunciation has been unreservedly quoted thereafter and reiterated by Lord Watson in Barraclough v Brown. 1897 AC 615
“The right and the remedy are given uno flatu and one cannot be dissociated from the other”
The aforesaid principle has received unstinted approval of our final Court as well. Therefore
it seems to follow that where both right and remedy stem from the same statute it is inevitable that the right conferred is itself within the confines and parameters of the modus of its enforcement. Therefore to say that because the statutory remedy provided is hedged down by a pre-condition it would lose the label of being a legal remedy at all seems to be plainly untenable on principle. That a legal remedy may be limited or confined by pre-conditions or post-conditions for its enforcement is not at all unknown to the realm of law and indeed in many cases it seems to be the rule rather than the exception.
12-13. One might also have a closer look at Section 10 which provides for the reference of disputes to Boards, Courts or Tribunals. The provision itself is exhaustive having as many as eight Sub-sections which are comprehensive in nature. It must also be noticed that the same is not to be read in isolation but also along with Sections 12 and 13 containing the duties of the Conciliation Officers and the Board. Looking at the provision it is plain that the aggrieved party has a right under Section 10 of the Act because where an industrial dispute exists or is even apprehended a reference can be claimed on showing the relevant facts in that respect and on a consideration of the entire material if it is found that an industrial dispute does exist, the appropriate Government would be bound to refer the dispute for adjudication. Fven when the Government comes to a contrary conclusion it is not left to its own whimsicality. While declining the reference the Government is required to apply its mind and act reasonably and not capriciously or arbitrarily. It would be pertinent to observe that under Section 12 one of the duties of the Conciliation Officer is that wherever an industrial dispute exists or is apprehended he shall hold conciliation proceedings in the prescribed manner. In the event of their failure and no settlement being arrived at. Sub-section (4) obliges him to send a full report setting forth the steps taken b\ him and the reasons on account of which in his opinion the settlement could not be arrived at Sub-section (6) then obliges that such a report must be submitted within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be fixed by the appropriate Government. Under Sub-section (5) the appropriate
Government is obliged to consider this report aad thereafter it may make a reference but where it does not do so it has to record its reasons and not only that, it is obliged to communicate the same to the parties concerned. Analogous provisions then exist under Section 13 with regard to the Board which is also obligated to make a report which must be considered under Section 13 (4) by the appropriate Government and in the event of its dcision not to make a reference, the appropriate Government must first record its reasons and then communicate the same to the parties concerned. On behalf of the respondents it was forcefully stated that in the climate of industrial liberality prevailing today reference of an industrial dispute is the rule whilst its refusal is the exception. Yet again the aggrieved party is entitled to approach the High Court by way of writ jurisdiction to show that the action of the Gov eminent in declining the reference is not legally sustamable or there * has not been any adequate application of mind. In this broader context to say that the statutory remedy of a reference is a misnomer, appears to me as a misnomer in itself.
14. Consequently the stand of the writ petitioners in this context has to be rejected on principle, on the larger scheme of the Act. and the langauage of its specific provisions.
15. However, as I said earlier to my mind the case of Premier Automobiles Ltd. v. Kamlakar Shantaram, 1975 Lab IC 1651 completely C9vers the point by binding precedent and is not open to challenge within this jurisdiction. Therein also identical submission as is sought to be raised before us. had been agitated by eminent counsel and precisely noticed by their Lordships in the following terms lat P. 1658) :
“Mr. Sorabjee endeavoured to take his case out of the well established and succinctly enunciated principles of law by the English Courts on two grounds .
(i) That the remedy provided under the Act is no remedy in the eye of law. It is a misnomer. Reference to the Labour Court or an Industrial Tribunal for adjudication of the industrial dispute was dependent upon the exercise of the power of the Government under Section 10(1). It did not confer any right on the suitor.” Indeed, it is the aforesaid argument which
was pointedly considered in all its aspects and categorically rejected by their Lordships. The answer was rendered in categoric terms in paragraph 14 of the report in the following terms :
“We do not find much force in either of the contentions. It is no doubt true that the remedy provided under the Act under Section 33-C on the facts and in the circumstances of this case involving disputes in relation to the two settlements arrived at between the management and the workmen was not the appropriate remedy. It is also true that it was not open to the workmen concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this Court that the Government under certain circumstances even on the ground of expediency vide State of Bombay v. K.P. Krishnan, (1901) 1 SCR 227. AIR 1960 SC 1223 and Bombay Union of Journalists v. State of Bombay (1964) 6 SCR 22 . AIR 1964 SC 1617) can refuse to make a reference. If the refusal is not sustainable in law appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under Section 10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the Act. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act. the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the Act. The
possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of expediency is not a relevant consideration in this regard.”
It is manifest from the above that the final Court was expressly considering the remedy of a statutory reference under Section 10(1) of the Act within its limitation of governmental opinion. It has been held in terms.
(i) That despite the handicap of the Governmental discretion to refer or not to refer aa industrial dispute, the right to claim reference was nevertheless a legal remedy.
(ii) That this handicap was more than compensated by the wider powers conferred on the Labour Courts and the Tribunal under the Act.
(iii) That the said remedy was both sufficient and adequate,
(iv) That in terms it was an alternative
remedy.
It is apt to notice at this very stage that the aforesaid enunciation has been reiterated in no uncertain terms by a co-equal Bench in Rohtas Industries Ltd. v. Rohtas Industries Staff Union 1976 Lab IC 303 with the added observation (at p. 313) :
“The Industrial Disputes Act is a comprehensive and self-contained Code so far as it speaks and the enforcement of rights created thereby can only be through the procedure laid down therein. Neither the Civil Court nor any other Tribunal or body can award relief.”
And again (at p. 314) :
“Since the Act which creates rights and remedies has to be considered as one homogenous whole it has to be regarded uno flatu, in one breath, as it were. On this doctrinal basis the remedy for the illegal strike (a concept which is the crealure not of the common law but of Section 24 of the Act) has to be sought exclusively in Section 26 of the Act.”
I believe that in view of the-conclusive answers rendered by-their Lordships of the Supreme Court to these questions, no further argument remains which can possibly avail the petitioners. It seems to be plain that astatutory reference under Section 10 of the Act is an adequate, efficacious and alternative remedy.
16. In fairness to learned counsel for the writ petitioners one must, however, notice what appears to me as a hypertechnical argument, that even though a statutor) reference under Section 10 may be an adequate and efficacious remedy yet it was not an alternative one. Perhaps this submission has only to be noticed and rejected. There is no definition of the words “alternative remedy” provided in any statute. However, what it would mean in the realm of law seems to be well known. Where the similar or identical, relief can be granted in another forum of law then it must necessarily be held that it provides an alternative remedy to the suitor. To put it in other words, if qualitatively and quantitatively the same relief would be given for redress of the injury -to the petitioner elsewhere then there is no choice but to name the same as an alternative remedy. Now it seems beyond cavil that what is sought here in the forum of the writ jurisdiction can equally be secured in the forums under the Act ranging from the Conciliation Officer and the Labour Court al the bottom to the National Industrial Tribunal at the top. Indeed as their Lordships observed in the Premier Automobiles case (1975 Lab IC 1651 (SC) (supra) the powers of the Labour Courts and the Tribunals under the Act are much wider in nature It is well known that a writ Court will not easily travel into issues of fact and would otherwise interfere only on the question of jurisdiction and errors patent in law whilst the authority under the Act is more than amply entitled to resolve the disputes on facts hedged in by no constitutional limitations and indeed can interfere by substituting its own discretion for that of the employer whose action may be impugned. Consequently it seems to follow that the remedies provided under the Act are not only alternative but, indeed wider and more specific. Finally, it must be recalled that in the Premier Automobiles’ case (supra) their Lordships in terms said that the remedies under the Act were alternative remedies. The tenuous submission in this context must. therefore, be rejected
16-A. I would however., like to deal
specifically with Mr. Tara Kant Jha’s ingenious
. argument to distinguish the case of Premier
Automobiles (supra) and his vehement
contention that the said case is no authority
for the proposition canvassed in this case. According to learned counsel their Lordships of the Supreme Court were considering the jurisdiction of Civil Court to adjudicate an industrial dispute. In other words, the Supreme Court was concerned whether jurisdiction of Civil Court is impliedly barred in view of the provisions of the-Industrial Disputes Act. Learned counsel drew our attention to paras 7, 15 and 31 of the judgment reported in AIR 1975 SC 2233 : (1975 Lab 1C 1651) (supra). It is true that Untwalia, J.. speaking for the Court observed ;
“The foremost and perhaps the only point….. which falls for our determination
is whether on the facts and circumstances of this case, the Civil Court had jurisdiction to entertain the suit filed by respondents 1 and 2 against the appellant.”
While referring to Section 9 of Civil P.C. the learned Judge further observed in para 15 :
“in India under Section 9 of the Code, the Courts have subject to certain restrictions, jurisdiction to try suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred….. In the
instant case taking cognizance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly barred. But if it relates to the enforcement of a right created under the Act. as stated above, by necessary intendment, the jurisdiction of Civil Court is barred.”
According to learned counsel, the Supreme Court after discussing various citations answered the point formulated by it in concluding para of the judgment as under :
“It is clear that the termination of the agreement in this case was not accepted by the union. It sought to challenge it by the institution of a suit. It is clear that the suit was in relation to the enforcement of a right created under the Act. The remedy in Civil Court is barred. The only remedy available to the workmen concerned was raising of an industrial dispute. It was actually raised and as a matter of fact shortly after the institution of the suit the disputes were referred by the Government to the Industrial Tribunal.”
It is therefore, strenuously urged that the principle decided in the said case does not at all apply to a person’s right of invoking the
jurisdiction of writ Court even in respect of an industrial dispute, provided the petitioner is a Government servant and/or an employee of the instrumentality of the Government.
16B. It, however, appears that while deciding the said question the Supreme Court referred to with approval, the judgment of Pasmore v. Oswald and Whistle, 1898 AC 387 rendered by House of Lords affirming the decision of Court of Appeal in Peebles v. Oswald Twistle Urban District Council reported in (1897) 1 QB 625, where it was pointed out that “the duty of local authority under Section 15 of the Public Health Act, 1875, to make such sewers as may be necessary….cannot be enforced by action for a mandamus; the only remedy for neglect of the duty being that given by Section 299 of the Act by complaint to the Local Government Board”. The answer to the question raised by Mr. Tara Kant Jha is not too far to seek, as the Supreme Court has rightly pointed out that “it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a China Shop.”
17. In the last bid attempt to distinguish the Premier Automobiles’ case (1975 Lab IC (651) (SC) (supra) it was sought to be contended that in the said case their Lordships were considering the question in the context of the remedy being alternative to the one by way of suit. Somewhat tenuously it was submitted that even if the remedies under the Act may be alternative remedies to ones by way of suit they would not be so as against the remedy by way of writ petition. Herein again the falacy of the submission seems to be patent. What was at issue in the Premier Automobiles’ case was the question whether under the Act the same or similar relief could be provided which was sought by way of a -suit. Consequently it is the nature of the remedy under the Act which was the primary point for consideration and it was held in no uncertain terms that the same was an alternative one. Indeed there can be little doubt that the plenary and unlimited remedy by way of a suit, which is untrammelled by any limitation is a wider remedy. Therefore, even if qua remedy it was held that the remedies provided under the Act were alternative thereto it would be more so in the context of the writ jurisdiction with its limitation of being confined to admitted
facts or jurisdictional errors and patent issues of law alone. Therefore, the distinction sought to be drawn to evade the ratio of the Premier Automobiles’ case (supra) is wholly untenable and the contention must fail.
18. It remains to advert to the three decisions of this Court which were strenuously relied upon and other judgments taking a somewhat similar view. In Hari Rai v. Union of India 1978 BBCJ 350 the issue was being considered in the context of the emergency provisions of the Constitution inserted in Article 226 by Section 58(2) of the 42nd Amendment. A reference to the judgment would show that in this point considerable attention was paid to this aspect which after the repeal of the relevant provisions of the 42nd Amendment is somewhat academic. The discussion of the issue now before us would indicate that this matter was not adequately canvassed before the Bench. The larger prospect that the Industrial Disputes Act creates the industrial rights and provides remedies thereof uno flatu seems to have been neither presented nor adjudicated upon. The wide spectrum of the various provisions of the Act went unnoticed. It is true that passing reference was made to the Premier Automobiles case (1975 Lab IC 1651) (SC) but the specific paras 13 and 14 of the report, which were focussed on the point appear to have been neither considered nor quoted. In distinguishing the Premier Automobiles case the Bench noticed that therein their Lordships were considering the question of alternative remedy vis-a-vis a suit in the Civil Court but as I have attempted to show earlier, this sort of reasoning is not tenable. Further the Bench therein was considering the matter in the context of the railway employees and it was noticed that the provisions and principles of the Industrial Disputes Act had been adopted by the Railway Administration in its Manual and therefore, it was not correct to contend that the objections taken by the petitioners were exclusively within the four corners of the Industrial Disputes Act The Bench also seems to have been influenced by the humane consideration that the writ petitioners were poor khalasis and it might involve hardship now to relegate them to the alternative remedy under the Act after a passage of two years from the admission of the writ petition. Further at that stage apparently the subsequent forceful
reiteration of the Premier Automobiles case in Rohtas Industries case (supra) with its added reasoning could not be noticed. With the greatest deference, therefore, it must be held that on this point Hari Rai’s case does not lay down the law correctly and is hereby overruled. For identical reasons the case of Hridai Mahto v. Union of India, 1978 BBCJ 459 and the case of Mahabir v. D. K. Mital 1980 Lab 1C 119 (Pal) which merely followed the decision in Hari Rai’s case (supra) have also to be necessarily overruled. In Asst. Personnel Officer, Southern Rly. v. K. T. Antony, (1978) 2 lab LJ 254 : (1978 Lab IC 394) (Ker) the matter does not seen to have been adequately canvassed at all before the Division Bench of the Kerala High Court which disposed it of in a solitary short para as if it was one of first impression and without reference to principle or precedent. With the greatest respect I would record my dissent therefrom.
19. On the other hand, it deserves notice that the view I am inclined to take stands accepted in the judgment of the Rajasthan High Court in Shankar Lal Mali v. State of Rajasthan 1980 Lab IC 964 wherein after dissenting from the view of the Kerala High Court it has been held that a reference under Section 10 provides an efficacious and adequate alternative remedy for the alleged violation of Section 25-F of the Act. What, however, deserves more pointed notice is that the Full Bench of the Punjab and Haryana High Court in the recent judgment in Manohar Lal v. State of Punjab (1984) 1 Lab LJ 193 : (1983 Lab 1C 1763) has taken an identical view.
19A. It bears recalling that these writ applications were referred to a Full Bench at the threshold stage of admission to consider the question whether the remedy under the Industrial Disputes Act is not an adequate remedy and, therefore, the petitioners are entitled to invoke the writ jurisdiction straightway. Herein I would refrain from expressing any opinion on two allied questions. Firstly as to what would happen to these writ petitions which have been admitted on merits and parties have filed their affidavit and counter-affidavit and the matter has remained pending in this Court for some time. Secondly, as Co when a person will be said to have exhausted his remedy under the Industrial Disputes Act and thus entitles him to approach
the writ Court for the grant of the main relief. I may notice that none of the counsel appearing in this case addressed us on these questions. Probably they thought that these are not relevant and do not arise for the decision of the cases in hand.
20. To conclude on this aspect the answer to question framed at the outset is rendered in the affirmative and it is held that the statutory reference of an industrial dispute under Section 10 is an adequate and efficacious legal remedy for the enforcement of the rights created under the Act.
21. Having dealt with the first question and now adverting to the second one. it seems vital for the sake of clarity of precedent to highlight at the very outset that today there is no manner of doubt that even the existence of an adequate and efficacious alternative remedy is not and indeed cannot be any inflexible legal bar to the entertainment of a writ petition. The constitutional power of the High Court under Article 226 is untramelled by any unsurmountable limitation on its exercise. In this context it is apt to recall that during the emergency by the Forty-Second Amendment to the Constitution a legal bar was sought to be imposed on the exercise of the writ jurisdiction where an alternative remedy existed. That, however, is now a matter of history because the relevant provision was expressly repealed by the Forty-Fourth Amendment. Therefore, the remedy by way of a writ under Article 226 has regained its pristine and original wide-ranging force and which, in the circumstances indicated hereinafter may well be exercised by the High Court in its discretion even in face of the existence of an alternative remedy. Therefore, the central issue herein is not the jurisdiction, or the power of the writ Court, which as already noticed, is a constitutional power untramelled by any limitation but the self-denying ordinance of the self-disciplined restraint of the Judges in exercising such a power as a matter of policy and judicial discretion. The real issue herein only is as to what course of action is open to the suitor who is aggrieved by the wrong and what is the more appropriate forum in the first instance to which he must be directed. To repeat, the question is not at all with regard to the power of the writ Court itself which admittedly is plenary.
22. Having thus cleared the deck for the consideration of the question it seems apt to examine it in its two aspects namely, the larger principle of judicial restraint and discretion where efficacious and adequate alternative remedy exists and the particular application of the said rule under the Act which, as noticed, provides uno flam both the right and the remedies thereunder. Adverting to the first aspect it is now well settled on principle and hallowed by precedent that the remedy by way of a writ is an extraordinary remedy. It necessarily flows from this basic proposition that where ordinary remedies exist resort to the extraordinary remedy would be permissble only upon their failure or exhaustion. If that were not to be so the distinction between the ordinary and the extraordinary remedy is obliterated and the principle merely becomes tautologous. Therefore, the salutary rule is that the writ Court would entertain the matter only if the adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself and ultimately rendering it inefficacious because it is, and was never intended, to replace or substitute the ordinary legal remedies expressly provided by the Legislature. Therefore, on principle itself resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available.
23. It is unnecessary to launch on any exhaustive dissertation on principle in this context because the issue is conclusively covered by binding precedent. It is unnecessary to go back to the English authorities since to my mind our final Court has itself clinched the matter. Way back in the well-known case of Union of India v. T. R. Varma, AIR 1957 SC 882 the Constitution Bench unequivocally observed as under I at p. 884) : —
“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 : Am 1950 SC 163, ‘the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs’. Vide also K. S. Rashid and Son v. Income-tax Investigation Commission, 1954 SCR 738 at p. 747 : AIR 1954 SC 207 at p. 210. And where such remedy exists it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor. None such appears in the present case.”
The aforesaid authoritative enunciation has then been reiterated by another Constitution Bench in A. V. Venkateswaran v. Ramchand Sobhraj, AIR 1961 SC 1506 and has held the field. It could not be even remotely argued before us that the final Court has in any way deviated from the same later. It is, therefore, unnecessary to multiply authorities on the point. Consequently, it emerges both from principle and precedent that as a settled rule of judicial policy convenience and discretion a writ Court would refose to interfere under Article 226 where an alternative remedy exists unless peculiar and exceptional grounds are established therefor.
24. The aforesaid larger rule appears to me as one of the particular application in the context of resort to the writ jurisdiction in the first instance for remedies expressly provided under the Industrial Disputes Act. It deserves reiteration that on a consideration of the Act it has been held in the Premier Automobiles case (1975 Lab IC 1651) (SC) that the rights and remedies under the Act are provided uno flatu and, therefore, one cannot be divorced from the other. It appears to me somewhat unnecessary to examine the issue on principle because it is pointedly covered by unequivocal and binding precedent. Within this jurisdiction what, perhaps calls for pointed notice is the fact that the very question arose in this High Court in Basanta Kumar Sarkar v. Eagle Rolling Mills Ltd., ILR 40 Pat 193 and Chief Justice Ramaswami, speaking for the Division Bench, categorically observed as under :–
“Even assuming that the orders of the Chief Executive Officer, which are Annexures A and D constitute an illegal curtailment of the benefits already enjoyed by the workmen, the High Court cannot grant a writ under Article 226 of the Constitution for the purpose of quashing those orders of the Chief Executive Officer of
Respondent 1. The proper remedy in such a case is for the petitioners to raise an Industrial Dispute under the provisions of the Industrial Disputes Act or to take recourse to the machinery provided by Sections 74 and 75 of Act 34 of 1948.”
It was on appeal from the aforesaid judgment that their Lordships not only affimed, but reiterated the rule in stronger terms. In Basanta Kumar v. Eagle Rolling Mills Ltd., AIR 1964 SC 1260; Chief Justice Gajendragadkar, speaking for the Bench, concluded as under : —
“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 his contention was that respondent 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 respondent 1 were invalid would not be considered under Article 226 of the Constitution: that is a matter which can be apporpriately 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 take 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 jo ventilate their grievances in respect of the said notices and circulars is to take recourse. to Section 10 of the industrial Disputes Act or seek relief if possible under Sections 74 and 75 of the Act.
25. It is plain that the aforequoted observations clinch the issue and this view has ever since held the field and as I would presently show, has been recently reiterated afresh. However, it is not on precedent alone that the matter herein seems to rest and larger considerations equally come in to support its rationale. As a representative example learned
counsel for the respondents rightly pointed out that in the context of Section 25-F of the Act, a necessary factual base is always a pre-condition for its application, and, ordinarily if not invariably it is controverted and, therefore, it is a wholly inapporpriate lis for the writ jurisdiction in the first instance. In order to claim relief under Section 25-F it must first be factually established that the workman had been in continuous employment for one year which for statutory purpose, would mean 240 days of continuous service, as defined in Section 25-B with regard to the deeming provision of uninterrupted service thereunder. Equally where there has been a works contract or what as a term of art is called a closure of a project, then again the provisions of Section 25-F would not be attracted. All these factors are necessarily in issue for relief under Section 25-F and for the writ Court to rush into the thicket of controverted and tangled facts would be plainly unwarranted on principle, policy, convenience and discretion.
26. Yet again it must be noticed that if the contention of the petitioners were to be accepted that the writ Court itself must intervene in the first instance for any infraction of the rights under the Act, this in essence would render nugatory the extensive machinery for settlement and adjudication of industrial disputes provided under the Act. It needs no great erudition to see that if a suitor can secure and get the same relief from the highest Court in the State in the first instance then it would be futile to expect him to seek it at the levels of the Labour Courts and the Industrial Tribunals, which in turn would be subject to interference by the High Court later. In essence the by-passing of the rule of alternative remedy in the context of the Act would not only reduce the High Court to the levels of the Labour Courts and Industrial Tribunals, but virtually frustrate the intention of the Legislature to provide an adequate hierarchy of forums for enforcing the remedies under the Act.
27. Perhaps, as we reach out to the mid-eighties a post script to the rule of alternative remedy is called for. As the Utopian euphoria at the dawn of the independence and the promulgation of the Constitution in the early fifties, faces the cold judicial realities of three decades and a half thereafter the true rationale
of the concept of the alternative remedy conies into entirely sharper focus. As the final Court and the High Court get choked within the land the meaningful distinction betwixt the ‘ordinary’ and the ‘extraordinary’ remedies highlights its significance. Unless the extraordinary remedy of the writ jurisdiction is to be hamstrung and indeed rendered nugatory by making it a substitute for the ordinary statutory remedy the distinction betwixt the two has to be firmly maintained. The writ jurisdiction is not the remedy of the first instance where others exist. It is the remedy of the last resort. If the Legislature in its wisdom, provides a statutory remedy, it is not for the High Courts to override and nullify that mandate.
28. It remains to recall the memorable and yet picturesque words of Krishna lyer. J., speaking for the Court in the specific context of the Industrial Disputes Act in Rohtas Industries Ltd. v. Rohtas Industries Staff Union, AIR 1976 SC 425 : (1976 Lab IC 303). That was yet again a case from this very High Court and affirming its judgment it was observed: —
But it is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This Court has spelt out wise and clear restraints on the use of this
extraordinary remedy and High Courts will not go beyong those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for
timely judicial interdict or mandate. The mentor of law is justice and a potent drug should be judiciously administered.”
29. In consonance with the above the answer to Question II must be rendered in the affirmative, and it is held that the suitor must exhaust the remedies under the Act before seeking relief in the writ jurisdiction unless the monstrosity of the situation or other exceptional circumstances cry out for interference by the writ Court at the very threshold.
30. Now applying the above, the learned counsel for the writ petitioners have been wholly unable to show any exceptional circumstances far from any monstrous situation imperatively warranting the overriding of the well settled rule that where an alternative remedy exists the suitor must be directed
thereto in the first instance. Consequently abiding by that principle I relegate the writ petitioners to the specific statutory remedy under the Industrial Disputes Act in the first instance. Needless to say that the doors of this Court are wide open once they have exhausted those remedies.
31. All the writ petitions are consequently dismissed in view of the significant legal questions involved. I leave parties to bear their own costs.
B.P. Jha, J.
32. I agree.
S.B. Sanyal, J.
33. I agree.