CASE NO.: Appeal (civil) 1346 of 2005 PETITIONER: U.P. STATE SPINNING CO. LTD. RESPONDENT: R.S. PANDEY AND ANR. DATE OF JUDGMENT: 26/09/2005 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT:
JUDGMENT
ARIJIT PASAYAT, J.
Appellant (hereinafter referred to as the `employer’) calls in question
legality of the judgment rendered by a Division Bench of the Allahabad High
Court dismissing Special Appeal filed by the appellant. The Special Appeal
was filed by the appellant questioning correctness of the judgment rendered
by a learned Single Judge who had questioned the orders of termination in
respect of respondents Nos. 1 and 2.
The main stand of the appellant before the High Court was that the writ
petition filed by the respondents should not be entertained as they had
efficacious, alternative and statutory remedy provided under the Industrial
Disputes Act, 1947 (in short the `Act’) read with U.P. Industrial Disputes
Act, 1947 (in short the `U.P Act‘).
The background facts are as follows:
The respondents while working in the appellant’s concern made claims of 15%
of the basic pay as an interim relief as was being paid to the officers and
clerical staff at the Headquarters of the appellant’s concern, as according
to them there was no justifiable reason for refusing the said relief to the
staff at some units. The writ petition was filed (including amended
prayers), inter alia, with the following prayers:
(a) to issue a writ, order or direction restraining the respondents from
transferring, terminating the services of the petitioners and harassing and
causing any harm to petitioners;
(b) to issue a writ, order or direction directing the respondents to pay
15% of the basic pay as interim relief and fixed D.A. of Rs. 100 to the
clerical staff of the Maunath Bhanjan Unit Mills;
(c) to issue any other suitable writ, order or direction which this Hon’ble
Court may deem fit and proper in the circumstances of the case; and
(d) to award costs of this writ petition to the petitioners against the
contesting respondents.
It is to be noted that five applications for amendments were filed and some
of them were allowed by the High Court. Right from the beginning, the
appellant was questioning maintainability of the writ petition as according
to it statutory remedies were available and in the writ petition itself the
writ petitioners accepted that the standing orders governing the service
conditions were in operation. By one of the amendments, the order of
dismissal passed was permitted to be questioned. So far as the respondent
No.1 is concerned, the stand was that the notice of show cause was alleged
to have been refused by him when sent by the appellant on 21.11.1987. The
same show cause notice was sent on 23.11.1987 by registered post which was
received by the respondent No.1 on 26.11.1987. The writ petitioner
(respondent No. 1) sent his reply to the show cause notice dated 26.11.1987
which was received by the appellant on 2.12.1987. But the order of
dismissal was passed on 1.12.1987. Learned Single Judge rejected the plea
relating to existence of alternative remedy and only on the ground that the
final order was passed before the receipt of the show cause reply, quashed
the proceedings.
So far as the respondent No.2 is concerned, it was held that the notice was
given by publishing in the news item on the purported ground that he did
not join the transferred post. The High Court held that the show cause
notice containing the allegation of non-joining was not established to have
been served.
Learned Single Judge noted that the writ petition was pending for great
length of time and, therefore, it would not be legal and proper to dismiss
the writ petition. He did not find substance in the plea that had the writ
petitioners availed a statutory remedy under the Act and the U.P. Act, the
employer would have got the opportunity to show that the departmental
proceedings were fair by adducing evidence in terms of Section 11-A of the
Act. By filing writ petition according to the appellant, such a statutory
right was rendered ineffective.
In the Special Appeal filed before the Division Bench, the stands taken
were re-iterated. It was specifically pointed out that the long pendency of
the writ petition was primarily on account of the fact that several
amendments were sought for and prayers for new reliefs were introduced. It
was further submitted that even if the Industrial Tribunal or the Labour
Court comes to the conclusion that domestic enquiry is vitiated, the
employer has a statutory right to lead evidence to show that the order of
termination is justified on the materials which may be placed on record.
This right was being denied by the workmen approaching the High Court under
Article 226 of the Constitution of India, 1950 (in short the
`Constitution’). The High Court did not consider the plea relating to the
existence of alternative remedy and denial of opportunity to justify the
order of termination by leading evidence to be of any consequence and held
that the learned Single Judge had permitted the appellant-employer to
proceed further in accordance with law. Since the order of termination was
passed in gross violation of principles of natural justice and in hasty
manner the writ petition was maintainable.
In support of the appeal, Mr. M.N. Rao, learned senior counsel submitted
that the approach of the High Court is clearly erroneous. No reason was
indicated by the writ petitioners for by-passing the statutory remedies.
Even in the writ petition, nothing was said to justify by-passing the
statutory remedy. In fact it was clearly stated that the standing orders
governing the service conditions were in operation. The High Court should
not have considered the passage of time as a factor to justify the action
of the writ petitioners in straightway filing the writ petition. As noted
above, the long pendency was on account of the various amendments sought
for by the writ petitioners. They should not have been permitted to take
advantage of their own dilutory methods. It was however accepted that the
appeal is not pressed so far as respondent No.2 is concerned as he had died
during the pendency of the appeal and the appellant has settled the matter
with the legal heirs of said deceased respondent No.2.
In response, learned counsel for respondent No.1-workman submitted that
existence of statutory remedy is not a rule of law but a law of caution and
in appropriate cases the High Court can entertain writ petitions. This was
a case where there was gross violation of principles of natural justice
and, therefore, the High Court was justified in entertaining the writ
petition and deciding the matter on merits. Merely because the employer had
a right to justify the order of dismissal by adducing evidence, that cannot
be a ground to deny the affected party the right to approach the High Court
by filing a writ petition. In fact the employer has been permitted to take
such action as is available in law by the orders of learned Single Judge
and the Division Bench.
The issues relating to entertaining writ petitions when alternative remedy
is available, were examined by this Court in several cases and recently in
State of Himachal Pradesh and Ors. v. M/s Gujarat Ambuja Cement Ltd. and
Anr., [2005] 6 SCC 499.
Except for a period when Article 226 was amended by the Constitution (42nd
Amendment) Act, 1976, the power relating to alternative remedy has been
considered to be a rule of self imposed limitation. It is essentially a
rule of policy, convenience and discretion and never a rule of law. Despite
the existence of an alternative remedy it is within the jurisdiction of
discretion of the High Court to grant relief under Article 226 of the
Constitution. At the same time, it cannot be lost sight of that though the
matter relating to an alternative remedy has nothing to do with the
jurisdiction of the case, normally the High Court should not interfere if
there is an adequate efficacious alternative remedy. If somebody approaches
the High Court without availing the alternative remedy provided the High
Court should ensure that he has made out a strong case or that there exist
good grounds to invoke the extra-ordinary jurisdiction.
Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax
Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v.
Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v.
T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR
(1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd. v. State of Madras,
AIR (1966) SC 1089, held that Article 226 of the Constitution confers on
all the High Courts a very wide power in the matter of issuing writs.
However, the remedy of writ is an absolutely discretionary remedy and the
High Court has always the discretion to refuse to grant any writ if it is
satisfied that the aggrieved party can have an adequate or suitable relief
elsewhere. The Court, in extraordinary circumstances, may exercise the
power if it comes to the conclusion that there has been a breach of
principles of natural justice or procedure required for decision has not
been adopted.
Another Constitution Bench of this Court in State of Madhya Pradesh and
Anr. v. Bhailal Bhai etc. etc., AIR (1964) SC 1006 held that the remedy
provided in a writ jurisdiction is not intended to supersede completely the
modes of obtaining relief by an action in a civil court or to deny defence
legitimately open in such actions. The power to give relief under Article
226 of the Constitution is a discretionary power. Similar view has been re-
iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors., AIR (1959) SC
422; Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr., AIR (1965)
SC 1321; Siliguri Municipality and Ors. v. Amalendu Das and Ors., AIR
(1984) SC 653; S.T. Muthusami v. K. Natarajan and Ors., AIR (1988) SC 616;
R.S.R.T.C. and Anr. v. Krishna Kant and Ors., AIR (1995) SC 1715; Kerala
State Electricity Board and Anr. v. Kurien E. Kalathil and Ors., AIR (2000)
SC 2573; A. Venkatasubbiah Naidu v. S. Chellappan and Ors., [2000] 7 SCC
695; and L.L. Sudhakar Reddy and Ors. v. State of Andhra Pradesh and Ors.,
[2001] 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj)
Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors.,
[2001] 8 SCC 509; Pratap Singh and Anr. v. State of Haryana, [2002] 7 SCC
484 and G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer and Ors.,
[2003] 1 SCC 72.
In Harbans Lal Sahnia v. Indian Oil Corporation Ltd., [2003] 2 SCC 107,
this Court held that the rule of exclusion of writ jurisdiction by
availability of alternative remedy is a rule of discretion and not one of
compulsion and the Court must consider the pros and cons of the case and
then may interfere if it comes to the conclusion that the petitioner seeks
enforcement of any of the fundamental rights; where there is failure of
principles of natural justice or where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is challenged.
In G. Veerappa Pillai v. Raman and Raman Ltd., AIR (1952) SC 192; Assistant
Collector of Central Excise v. Dunlop India Ltd., AIR (1985) SC 330;
Ramendra Kishore Biswas v. State of Tripura, AIR (1999) SC 294; Shivgonda
Anna Patil and Ors. v. State of Maharashtra and Ors., AIR (1999) SC 2281;
C.A. Abraham v. I.T.O. Kottayam and Ors., AIR (1961) SC 609; Titaghur Paper
Mills Co. Ltd. v. State of Orissa and Anr., AIR (1983) SC 603; H.B. Gandhi
v. M/s Gopinath and Sons, [1992] Suppl. 2 SCC 312; Whirlpool Corporation v.
Registrar of Trade Marks and Ors., AIR (1999) SC 22; Tin Plate Co. of India
Ltd. v. State of Bihar and Ors., AIR (1999) SC 74; Sheela Devi v. Jaspal
Singh, [1999] 1 SCC 209 and Punjab National Bank v. O.C. Krishnan and Ors.,
[2001] 6 SCC 569, this Court held that where hierarchy of appeals is
provided by the statute, party must exhaust the statutory remedies before
resorting to writ jurisdiction.
If, as was noted in Ram and Shyam Co. v. State of Haryana and Ors., AIR
(1985) SC 1147 the appeal is from “Caeser to Caeser’s wife” the existence
of alternative remedy would be a mirage and an exercise in futility. In the
instant case the writ petitioners had indicated the reasons as to why they
thought that the alternative remedy would not be efficacious. Though the
High Court did not go into that plea relating to bias in detail, yet it
felt that alternative remedy would not be a bar to entertain the writ
petition. Since the High Court has elaborately dealt with the question as
to why the statutory remedy available was not efficacious, it would not be
proper for this Court to consider the question again. When the High Court
had entertained a writ petition notwithstanding existence of an alternative
remedy this Court while dealing with the matter in an appeal should not
permit the question to be raised unless the High Court’s reasoning for
entertaining the writ petition is found to be palpably unsound and
irrational. Similar view was expressed by this Court in First Income-Tax
Officer, Salem v. M/s. Short Brothers (P) Ltd., [1966] 3 SCR 84 and State
of U.P. and Ors. v. M/s. Indian Hume Pipe Co. Ltd., [1977] 2 SCC 724. That
being the position, we do not consider the High Court’s judgment to be
vulnerable on the ground that alternative remedy was not availed. There are
two well recognized exceptions to the doctrine of exhaustion of statutory
remedies. First is when the proceedings are taken before the forum under a
provision of law which is ultra vires, it is open to a party aggrieved
thereby to move the High Court for quashing the proceedings on the ground
that they are incompetent without a party being obliged to wait until those
proceedings run their full course. Secondly, the doctrine has no
application when the impugned order has been made in violation of the
principles of natural justice. We may add that where the proceedings itself
are an abuse of process of law the High Court in an appropriate case can
entertain a writ petition.
Where under a statute there is an allegation of infringement of fundamental
rights or when on the undisputed facts the taxing authorities are shown to
have assumed jurisdiction which they do not possess can be the grounds on
which the writ petitions can be entertained. But normally, the High Court
should not entertain writ petitions unless it is shown that there is
something more in a case, something going to the root of the jurisdiction
of the officer, something which would show that it would be a case of
palpable injustice to the writ petitioner to force him to adopt the
remedies provided by the statute. It was noted by this Court in L. Hirday
Narain v. Income Tax Officer, Bareilly AIR (1971) SC 33 that if the High
Court had entertained a petition despite availability of alternative remedy
and heard the parties on merits it would be ordinarily unjustifiable for
the High Court to dismiss the same on the ground of non exhaustion of
statutory remedies; unless the High Court finds that factual disputes are
involved and it would not be desirable to deal with them in a writ
petition.
At this juncture, it would be appropriate to take note of the few
expressions in Reg v. Hillington, London Borough Council, (1974) 1 QB 720
which seems to bring out well the position. Lord Widgery, C.J. stated in
this case:
“It has always been a principle that certiorari will go only where there is
no other equally effective and convenient remedy…”
The statutory system of appeals is more effective and more convenient than
application for certiorari and the principal reason why it may prove itself
more convenient and more effective is that an appeal to (say) the Secretary
of State can be disposed of at one hearing whether the issue between them
is a matter of law or fact or policy or opinion or a combination of some or
all of these ……..whereas of course an appeal for certiorari is limited
to cases where the issue is a matter of law and then only it is a matter of
law appearing on the face of the order.”
“An application for certiorari has however this advantage that it is
speedier and cheaper than the other methods and in a proper case therefore
it may well be right to allow it to be used…..I would, however, define a
proper case as being one where the decision in question is liable to be
upset as a matter of law because on its face it is clearly made without
jurisdiction or in consequence of an error of law.”
After all the above discussion, the following observations of
Roskill L.J. in Hanson v. Church Commissioner, (1978) QB 823 may
not be welcomed but it should not be forgotten also:
“There are a number of shoals and very little safe water in the
unchartered seas which divide the line between prerogative orders
and statutory appeals, and I do not propose to plunge into those
seas….”
In a catena of decisions it has been held that writ petition under Article
226 of the Constitution should not be entertained when the statutory remedy
is available under the Act, unless exceptional circumstances are made out.
In U.P. State Bridge Corporation Ltd. and Ors. v. U.P. Rajya Setu Nigam S.
Karamchari Sangh, [2004] 4 SCC 268, it was held that when the dispute
relates to enforcement of a right or obligation under the statute and
specific remedy is, therefore, provided under the statute, the High Court
should not deviate from the general view and interfere under Article 226
except when a very strong case is made out for making a departure. The
person who insists upon such remedy can avail of the process as provided
under the statute. To same effect are the decisions in Premier Automobiles
Ltd. v. Kamlekar Shantarum Wadke, [1976] 1 SCC 496, Rajasthan SRTC v.
Krishna Kant, [1995] 5 SCC 75, Chandrakant Tukaram Nikam v. Muncipal
Corporation of Ahmedabad and Anr., [2002] 2 SCC 542 and in Scooters India
and Ors. v. Vijai V. Eldred, [1998] 6 SCC 549.
In Premier Automobiles Ltd., case (Supra) it was observed as follows:
“A speedy, inexpensive and effective forum for resolution of disputes
arising between workmen and their employers. The idea has been to ensure
that the workmen do not get caught in the labyrinth of civil courts with
their layers upon layers of appeals and revisions and the elaborate
procedural laws, which the workmen can ill afford. The procedure followed
by civil courts, it was thought, would not facilitate a prompt and
effective disposal of these disputes. As against this, the courts and
tribunals created by the Industrial Disputes Act are not shackled by these
procedural laws nor is their award subject to any appeals or revisions.
Because of their informality, the workmen and their representatives can
themselves prosecute or defend their cases. These forums are empowered to
grant such relief as they think just and appropriate. They can even
substitute the punishment in many cases. They can make and re-make the
contracts, settlement, wage structures and what not. Their awards are no
doubt amenable to jurisdiction of the High Court under Article 226 as also
to the jurisdiction of this Court under Article 32, but they are
extraordinary remedies subject to several self-imposed constraints. It is,
therefore, always in the interest of the workmen that disputes concerning
them are adjudicated in the forums created by the Act and not in a civil
court. That is the entire policy underlying the vast array of enactments
concerning workmen. This legislative policy and intendment should
necessarily weigh with the courts in interpreting these enactments and the
disputes arising under them”.
In Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors.,
[1964] 6 SCR 913 the Constitution Bench of this Court observed as follows:
“It is true that the powers conferred on the High Courts under Art. 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 to ventilate
their grievances in respect of the said notices and circulars is to take
recourse to s. 10 of the Industrial Disputes Act, or seek relief, if
possible, under sections 74 and 75 of the Act.”
The above position was recently highlighted in Hindustan Steel Works
Construction Ltd. and Anr. v. Hindustan Steel Works Construction Ltd.
Employees Union, (2005) 6 SCALE 430.
Accordingly, the conclusion is inevitable that the High Court was not
justified in entertaining the writ petition. Usually when writ petition is
entertained notwithstanding availability of alternative remedy and issues
are decided on merits, this Court is slow to interfere merely on the ground
of availability of alternative remedy. But the facts of the present case
have special features, which warrant interference.
The residual question is what would the appropriate direction in such a
case. Stand of the employer is that it could have justified the order of
termination by adducing any evidence even if it was held that there was
some defect in the departmental proceedings. The solution is found in what
was stated by this Court in Managing Director, ECIL v. B. Karunakar, [1993]
4 SCC 737. In paragraph 31, it was observed as follows:
“In all cases where the enquiry officer’s report is not furnished
to the delinquent employee in the disciplinary proceedings, the
Courts and Tribunals should cause the copy of the report to be
furnished to the aggrieved employee if he has not already secured
it before coming to the Court/Tribunal and give the employee an
opportunity to show how his or her case was prejudiced because of
non-supply of the report. If the non-supply of the report would
have made no difference to the ultimate findings and the punishment
given, the Court/Tribunal should not interfere with the order of
punishment. The Court/Tribunal should not mechanically set aside
the order of punishment on the ground that the report was not
furnished as is regrettably being done at present. The courts
should avoid resorting to short cuts. Since it is the
Courts/Tribunals which will apply their judicial mind to the
question and give their reasons for setting aside or not setting
aside the order of punishment, (and not any internal appellate or
revisional authority), there would be neither a breach of the
principles of natural justice nor a denial of the reasonable
opportunity. It is only if the Court/Tribunal finds that the
furnishing of the report would have made a difference to the result
in the case that it should set aside the order of punishment. Where
after following the above procedure, the Court/Tribunal sets aside
the order of punishment, the proper relief that should be granted
is to direct re-instatement of the employee with liberty to the
authority/management to proceed with the inquiry, by placing the
employee under suspension and continuing the inquiry from the stage
of furnishing him with the report. The question whether the
employee would be entitled to the back wages and other benefits
from the date of his dismissal to the date of his re-instatement if
ultimately ordered, should invariably be left to be decided by the
authority concerned according to law, after the culmination of the
proceedings and depending on the final outcome. If the employee
succeeds in the fresh inquiry and is directed to be re-instated,
the authority should be at liberty to decide according to law how
it will treat the period from the date of dismissal till the re-
instatement and to what benefits, if any and the extent of the
benefits, he will be entitled. The re-instatement made as a result
of the setting aside the inquiry for failure to furnish the report,
should be treated as a re-instatement for the purpose of holding
the fresh inquiry from the stage of furnishing the report and no
more, where such fresh inquiry is held. That will also be the
correct position in law.”
In view of above, we set aside the order of learned Single Judge as
affirmed by the Division Bench by the impugned judgment and direct that
within a period of four months the enquiry shall be completed by starting
from the stage of service of show cause notice and consideration of the
reply, if any, filed in accordance with the standing orders holding the
field. The respondent No. 1 shall be re-instated to service but without any
back wages and other service benefits and his re-instatement shall be
solely for the purpose of completing the departmental proceedings. His
entitlements, if any, would be adjudicated by the authorities depending
upon the result of the disciplinary proceedings.
The appeal is allowed to the aforesaid extent with no order as to costs.
