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TMI Blog1995 (3) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... hief Justice Constituted Larger Bench consisting of five senior Judges of this court and in pursuance of the said order, the question referred by the learned Single Judge came up for consideration before us. 2. Before we proceed to consider the arguments advanced by the learned counsel for the parties, we think it proper to narrate the facts of the aforesaid Writ Petition giving rise to the reference in question. 3. Integrated Guinea worm Eradication Project is apart of Sanitation Water and Community Health Project of the Government of Rajasthan. The petitioner passed B.Com. Examination in 1st Division in 1980 from Udaipur University. He was born on 2nd April, 1957 and belongs to backward community (Teli). He was appointed as L.D.C. in Sanitation Water and Community Health Project at Salumbar purely on ad hoc basis for a period of two months on the fixed salary of ₹ 600/- per month vide order dated March 28, 1988. There was specific stipulation in the order of appointment that the services of the petitioner shall stand automatically terminated on expiry of period of two months. Before the expiry of two months, the services of the petitioner were extended with effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The extended term though expired on July 31, 1989, yet the petitioner was allowed to continue in service without any order up to August 29, 1989. It appears that the extended period again expired and the petitioner was again allowed to work without any order from October 1, 1989 to October 17, 1989 and the services were again extended from October 1, 1989 to November 30, 1989. The petitioner again worked without any order from December 1, 1989 to December 15, 1989. However his services were again extended from December 1, 1989 to February 28, 1990 by order dated December 16, 1989. The extended period again expired and he was allowed to work without any order from March 1, 1990 to March 4, 1990. The services of the petitioner were again extended from May 1, 1990 to June 30, 1990. 4. Initially, the petitioner was appointed on the fixed salary of ₹ 600/- per month by order dated March 28, 1988. However it was increased to ₹ 750/- per month from June 1, 1989. A copy of the order dated June 30, 1989 has been filed as Annexure-6 to the writ petition. The petitioner was allowed house rent allowance @20% of the wages w.e.f. July, 1988. It was averred that the petitioner wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy. It appears that the learned Single Judge specifically directed the counsel for the parties to address on the question of existence of alternate remedy, particularly in the light of the judgments delivered by the Full Bench of this Court in Smt. Indu v. Municipal Council, Jodhpur and Ors. RLR 1991 (1) Page 68 and the subsequent Division Bench Judgment of this Court in Rajasthan Pul Nigam Workers Union and Anr. v. Rajasthan State Bridge Construction Corporation Ltd. and Anr. R.L.R. 1991(2) Page I and ultimately, after hearing the counsel for the parties, it appears that the learned Single Judge felt that in view of the aforesaid two decisions, large number of writ petitions were filed in this Court invoking the writ jurisdiction under Article 226 of the Constitution of India without taking recourse to the normal remedy under Sections 10, 12 and 33 C of the Act and it appears that on the basis of the views expressed by this Court in the aforesaid two decisions, the writ petitions were being entertained and as such, he thought it proper to refer the aforesaid question for consideration by a Larger Bench. 7. Before we proceed to answer the question referred to us by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by that employer until- (a) The workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the official gazette. 10. From a perusal of the provisions contained above, it is crystal clear that whether the conditions prescribed under Section 25F of the Act for retrenchment of a workman have been fulfilled or not, is a pure question of fact and in order to arrive at a conclusion/recording finding, some investigation/enquiry has to be embarked upon, which in our opinion would be beyond the purview of Article 226 of the Constitution of India. 11. Now before we proceed to decide the question regarding the remedy availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one State are likely to be interested in, or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication. (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly, or separately, for a reference of the dispute to a Board, Court (Labour Court, Tribunal or National Tribunal), the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. (2-A) An order referring an Industrial Dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maheshwari for the respondents. 13. As soon as Mr. Mridul started his submissions to a pointed query made by us, he very candidly and in our opinion rightly made a statement at the bar that the answer to the question referred by the learned Single Judge for opinion by a Larger Bench can never be in affirmative as it would mean that writ should be directly entertained as a matter of course. However, he submitted that he would make his efforts to canvass before us that the remedies provided under the Act for violation of the provisions of Chapter V-A of the Act/violation of the principles of natural justice are not adequate, alternative and efficacious. Large number of cases (numbering more than 100) have been cited at the bar, which in our opinion would not be relevant and would also unnecessarily over burden the judgment and thus for the sake of brevity, we would like to deal with only those cases of this court mentioned by the learned Single Judge, which according to him require reconsideration by a Larger Bench. 14. From a perusal of the referring order, we have no hesitation in saying that the learned single Judge was very much in doubt about the ratio laid down by one Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to and decided by the appropriate Tribunal should not normally be entertained. (2) Whether as per Section 25-8(2) of the Act, an employee/workman has a right to choose his own date of termination with reference to which the cancellation is to be made, without reference to the actual date of termination? (or to put it differently), whether the date with reference to which calculation is to be made is to be held as the actual date of termination and not any other date prior to that date on which he might have completed 240 days of un-interrupted service within the period of 12 calendar months as per Section 25B of the Industrial Disputes Act counting those months backward from that alleged date of termination? (3) If question No. 2 is answered in favour of the petitioner that he has a right to choose any date on which he has completed 240 days of service as the date of his termination from service then whether the interrupted service rendered by him thereafter has to be treated as uninterrupted service till the date of actual termination. Whether such a deeming fiction can be read into Section 25-8(1) and (2) of the Industrial Disputes Act keeping in view the aims and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with great care and caution. 16. It is to be noticed that the ratio laid down by the Full Bench in Smt. Indus' case (supra) was subsequently enlarged by the Division Bench of this court in Rajasthan Pul Nigam 's case (supra) to the extent that where a writ petition under Article 226 of the constitution of India is filed for violation of the provisions contained in Chapter V-A of the Industrial Disputes Act, the Court has been left with no discretion/option and the entertainment of such writ petitions without exhausting remedies provided under the Act is must. 17. Without being misunderstood and without showing any disrespect to the aforesaid two decisions of Smt.' Indus's case (supra) and Rajasthan Pul Nigam's case (supra), large number of writ petitions have been filed without taking recourse to adequate, efficacious remedies contained in the Act for violation of the provisions of Chapter V-A of the Act and these two judgments have, in fact, opened flood gate for filing large number of writ petitions arising out of industrial disputes directly in the High Court without availing alternative remedy. 18. There is another Full Bench judgment of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in Smt. Indu's case (supra) as well as the Division Bench in Rajas-than Pul Nigam 's case (supra) and also could not subscribe the view canvassed by Mr.Mridul in view of atleast four judgments rendered by the five Judges Bench of the Apex Court and in our opinion, it was open for him to have taken a different view, but however in order to maintain judicial decorum and legal propriety, referred the question in hand for consideration by the Larger Bench. 21. During the course of arguments, learned counsel for the parties cited number of cases of this court as well as of other High Courts apart from the judgments of the Apex Court, but we may say so emphatically at this very place that not a single judgment rendered by the Apex Court has been cited by the counsel for the petitioner which may support the ratio laid down by the Full Bench in Smt. Indu's case (supra) and the Division Bench in Rajasthan Pul Nigam's (supra) case. Thus in our opinion the basic question with which we are seized is, as to whether the Full Bench of this Court in Smt. Indu's case and the Division Bench in Rajasthan Pul Nigam's case lays down the correct law and, if not, what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 Supreme Court 163 the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. 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. 23. The next case is State of U.P. v. Mohammed Nooh AIR 1958 Supreme Court 86 in the aforesaid case, the Apex Court has observed that the fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decision of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. 24. The last case is Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors. (1964-II-LLJ-105) which related to industrial dispute and as such we would like to briefly refer to the facts giving rise to the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 grievance in respect of the said recourse to Section 10 of the Industrial Disputes Act, or seek relief, if possible, under Sections 74 and 75 of the Act. 25. There are series of cases of the Apex Court in which the view expressed by the Apex Court in the aforesaid cases have constantly been followed and there has been no departure till today, but however we would not like to refer to all those cases and would like only to express our opinion that the dictum laid down in the aforesaid judgments of Five Judge's Benches of the Apex Court have not been noticed at all by the Full Bench in Smt. Indu 's case (supra) or the Division Bench in Rajashan Pul Nigam's case (supra). As we have already stated earlier that Mr. Mridul, Senior counsel appearing for the petitioner has candidly conceded that the answer to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondents have also invited our attention to catena of decisions of the Apex Court and various High Courts, but in our opinion the ratio laid down in Premier Automobiles' case (supra) is a complete answer to the argument and we do not consider it proper to refer to other decisions. 30. The next submission which Mr.Mridul canvassed before us is that the remedy under the Act is not adequate and efficacious as a workman is prohibited in availing the services of the lawyer under Section 36 of the Act unless employer agrees and the Court permits. 31. We have considered the said argument but we cannot subscribe to the aforesaid proposition as there are many other statutes where the litigants are deprived of availing services of the lawyers. In this connection the most glaring example is of Family Courts where the disputes arising under the Hindu Marriage Act were decided and the parties are deprived of engaging lawyers in matrimonial cases and sometimes illiterate, poor women are the worst sufferers. 32. Another submission, which has been made by the counsel for the petitioner before us is that in many cases it takes decades to decide the disputes by the Labour Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputes through conciliation and if not possible, then by the Tribunals constituted under the Act, and, also to reduce the field of conflict between the employer and the employees in order to increase the industrial growth of the country. The Act is a self contained code and provides complete procedure, even machinery has been provided for recovering the money due from the employer to the employee under Section 33C of the Act. In our opinion even where the question is raised as to whether the principles of natural justice have been complied with before passing the impugned order or not, is also a question of fact which requires investigation. Similarly, the question as to whether the order is without jurisdiction, is also essentially a question of fact and requires investigation before reaching a conclusion and that investigation or enquiry in our opinion is normally beyond the scope of Article 226 of the Constitution of India and these questions can be suitably agitated and adjudicated upon by the authorities constituted under the Act, on the basis of evidence adduced by the parties. We are therefore, of the opinion that even in such cases the normal rule for an employee should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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