IMPORTANT POINT
When the dispute relates to the enforcement of a right or an obligation created under the Industrial Disputes Act, then the only remedy available to the claimant is to get adjudication under the Act and the High Court exercising extraordinary jurisdiction under Article 226 of the Constitution should refuse to do so where there are disputed questions of fact.

Headnote:(i) LABOUR LAW-Constitution of India-Article 226-Industrial Disputes Act, 1947-U.P. Industrial Employment (Standing Orders) Act, 1946-Writ petition challenging termination of contract of service-Maintainability-Industrial dispute-Disputed questions of fact-Appellant, a Government company carrying on construction activities at various sites-168 muster roll employees working at bridge construction unit in various capacities-From 12-10-1995, respondents workmen did not attend their jobs-Order issued putting an end to services of workmen on presumption that they had abandoned their services with the Corporation on their own-Writ petition filed challenging order of termination-Whether maintainable-(No).
       Held : The High Court erred in entertaining the writ petition of the respondent-Union at all. The dispute was an industrial dispute both within the meaning of the Industrial Disputes Act, 1947 as well the UPIDA, 1947. The rights and obligations sought to be enforced by the respondent-Union in the writ petition are those created by the Industrial Disputes Act. (Para 11)
       It is an established practice that the Court exercising extra-ordinary jurisdiction under Article 226 should have refused to do so where there are disputed questions of fact. In the present case, the nature of the employment of the workmen was in dispute. According to the appellant, the workmen had been appointed in connection with a particular project and there was no question of absorbing them or their continuing in service once the project was completed. Admittedly, when the matter was pending before the High Court, there were 29 such projects under execution or awarded. According to the respondent-workmen, they were appointed as regular employees and they cited orders by which some of them were transferred to various projects at various places. In answer to this the appellants said that although the appellant corporation tried to accommodate as many daily wagers as they could in any new project, they were always under compulsion to engage local people of the locality where work was awarded. There was as such no question of transfer of any workman from one project to another. This was an issue which should have been resolved on the basis of evidence led. The Division Bench erred in rejecting the appellants submission summarily as also in placing the onus on the appellant to produce the appointment letters of the respondent-workmen. There was also a dispute as to the nature of the absence of the respondent-workmen. (Paras 14 and 15)
       The only reason given by the High Court to finally dispose of the issues in its writ jurisdiction which appears to be sustainable, is the factor of delay, on the part of the High Court in disposing of the dispute. Doubtless the issue of alternative remedy should be raised and decided at the earliest opportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurer. Nevertheless even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts. Indeed the factual controversies which have arisen in this case remain unresolved. They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash s case had correctly refused to entertain the writ petition for such relief. (Para 17)
       (ii) Industrial Disputes Act, 1947-Section 22-U.P. Industrial Employment (Standing Orders) Act, 1946-Section 65-Notice of strike-Requirement of-Notice of strike is required to be given in respect of an industrial establishment. (Para 16)

JUDGMENT

Ruma Pal, J.-The appellant is a Government company within the meaning of Section 617 of the Companies Act. It carries on construction activities at various sites throughout the country and abroad. The respondent-Union represents the cause of 168 muster roll employees. The respondents were working at the bridge construction unit of the appellant at Kanpur in various capacities. The terms and conditions of employees of the appellant are governed by Standing Orders Certified under the U.P. Industrial Employment (Standing Orders) Act, 1946, clause L-2.12 of which reads:

"Any workman who remains absent from duty without leave or in excess of the period of leave originally sanctioned or subsequently extended for more than 10 consecutive days, shall be deemed to have left the services of the corporation on his own accord, without notice, thereby terminating his contract of service with the corporation and his name will accordingly be struck of the rolls."

2. From 12th October 1995 the respondents-workmen did not attend their jobs. On 18th October 1995 the appellant issued an order which is quoted:

"Some of the workmen working at Betwa Bridge, Arichghat, Jhansi are absenting from duty since 12.10.1995. Direction for smooth functioning of the work in the interest of the Corporation has already been given vide this Office Notice No. 1102/1E/126 dated 16.10.1995 to such workmen.

In the light of the aforesaid, it is made clear that such of the workmen who do not present themselves for duty and do not perform work or discharge their duty, then in accordance with the provision contained in Clause L-2.12 of the Certified Standing Order of the U.P. State Bridge Corporation Ltd. [such of the workmen, who are continuously absent for more than 10 days, in respect of them, it shall be presumed that they have left the services of the Corporation without any notice and thus, their contract of service with the Corporation has come to an end and accordingly, their names from the muster roll shall be removed] action shall be taken in the interest of the Corporation."

3. On 22nd December 1995 as amended on 28th December 1995 a similar notice was published in a Hindi newspaper which also stated that if the workmen whose names were appended to the notice did not report for duty within a period of three days from the date of the publication of the notice, it would be presumed that they had abandoned their services with the Corporation without notice and their contract of service would come to an end and their names would be removed from the muster roll. According to the appellant despite the repeated notices the workmen continued to absent themselves and ultimately on 19th January 1996 an order was issued putting an end to the services of 168 workmen on the presumption that they had abandoned their services with the Corporation on their own.

4. On 9th May 1996, one of the workmen whose services were so terminated, namely Anand Prakash filed a writ petition in the High Court before the Lucknow Bench challenging the order of termination. The writ petition was dismissed on the ground that the workman could raise an industrial dispute if he so desired. A second writ petition was filed by the respondent-Union in the High Court at Allahabad. This writ petition was allowed by orders which now are the subject matter of challenge before us.

5. The learned Single Judge rejected the preliminary objections raised by the appellant that the writ petition was not maintainable, inter-alia, on the grounds that the Corporation was not a State within the meaning of Article 12 and that an un-registered Union did not have the locus to represent the workmen s cause. It is not necessary to consider the reasoning of the learned Single Judge as neither of these points were raised before us by the appellant. On the question of the alternative remedy which was available to the workmen under the Industrial Disputes Act, the learned Single Judge was of the view that the case did not

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2004 Supreme(SC) 195

Cases Referred (6)