Important pointWrit petition under Article 226 of the Constitution of India should not be entertained when statutory remedy is available under the Act unless exceptional circumstances are made out.

Headnote:Industrial Dispute—Industrial Disputes Act, 1947—Section 9-A—Order withdrawing construction allowance—High Court in writ petition held that withdrawal of construction allowance was in violation of Section 9-A of Industrial Disputes Act—High Court was of prima facie view that withdrawal of allowance amounted to variation of terms and conditions of service and there was violation of requirement of Section 9-A of the Act—Appeal—Writ petition should not be entertained when statutory remedy was available under the Act unless exceptional circumstances were made out—High Court overlooked the fact that question relating to applicability of Section 9-A was essentially question of fact—Matter required to be referred to the Tribunal.
       Held : In a catena of decisions it has been held that writ petition under Article 226 of the Constitution of India, 1950 (in short ‘the Constitution’) should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. (Para 7)
       We find that the learned Single Judge observed that he was not entering into the factual controversy, overlooking the fact that the question relating to applicability of Section 9-A is essentially question of fact. The Division Bench did not discuss the basic issues about the applicability of Section 9-A and whether on the facts of the case Section 9-A has really any application. It was disposed of with the following observations:
       “The employees concerned are workmen within the meaning of that term as defined under Section 2(s) of the Act and withdrawal of construction allowance from them tantamounts to a change in the conditions of service. In that view of the matter, the management of the appellant company ought not to have withdrawn the construction allowance presently paid to the employees without issuing notice envisaged under Section 9-A of the Act.”
       The inevitable conclusion, therefore, is that both learned Single Judge and the Division Bench have failed to consider the basic issues. In the normal course we would have left it to the respondent to avail appropriate remedy under the Act. However, because of the long passage of time (the writ petition was filed in 1997), the attendant circumstances of the case in the background noted above and in view of the agreement that this is a matter which requires to be referred to the Tribunal, we direct that the appropriate Government shall refer the following question for adjudication by the appropriate Tribunal:
       (1) Whether there was violation of Section 9-A of the Industrial Disputes Act, 1947 as claimed by the employees?
       (2) Whether the withdrawal of the construction allowance amounted to the change in the conditions of service?
       The parties shall jointly move the appropriate Government with a copy of our judgment. (Paras 12 to 14)

Judgment

Arijit Pasayat, J.—Hindustan Steel Works Construction Limited (hereinafter referred to as the ‘employer’) calls in question legality of the judgment rendered by Division Bench of the Andhra Pradesh High Court affirming the order passed by the learned Single Judge holding that withdrawal of construction allowance which was being earlier allowed to the employees working at the Vishakhapatnam was in violation of Section 9-A of the Industrial Disputes Act, 1947 (in short the ‘Act’). According to the employees as urged in the writ petition it was done without following the mandatory provisions of Section 9-A and was in violation of principles of natural justice.

2. Factual aspects need to be noted in brief are as follows:

Employer started construction work of Vizag Steel Plant in 1979 and employees stationed there were paid Project/construction allowance. The employer discontinued payment of construction allowance and had paid City Compensatory allowance. The withdrawal continued w.e.f. 7.4.1992. On 22.8.1974 a circular was issued by the employer notifying revision of pay scales w.e.f. 1.1.1974. On 17.1.1975 the Ministry of Finance, Government of India issued Office Memorandum with regard to construction projects and grant of project allowance. It was indicated therein that the allowance was intended primarily to compensate the staff for lack of amenities such as housing, schools, markets, dispensaries etc. Since November 1979 the employees were paid project/construction allowance. In 1986 a High Power Committee was appointed by this Court to go into the questions relating to the implementation of the recommendations of the Fourth Pay Commission. The final report was submitted on 2.11.1988. The issue relating to project/construction allowance was set out in Chapter 12 of the report. By order dated 3.5.1990 this Court directed implementation of the recommendations of the High Power Committee. According to the appellants there was no restriction on withdrawal of the allowance under the changed circumstances. The allowance was specific and particular in the sense that it was payable under certain circumstances.

3. Questioning legality of the withdrawal writ petition was filed before the Andhra Pradesh High Court, which was allowed by the learned Single Judge. The primary challenge was that there was clear violation of the mandatory requirements of Section 9-A and, therefore, order was not sustainable. The employer questioned maintainability of the writ petition contending that efficacious alternative and statutory remedy is available under the Act and writ petition was not maintainable, particularly, when factual controversy is involved. The question whether there was violation of the requirements of Section 9-A is essentially one of facts.

4. The High Court was of the prima facie view that withdrawal of the construction allowance amounted to variation of the terms and conditions of service and, therefore, there was violation of the requirements of Section 9-A of the Act. It was observed that since no factual controversy has been adjudicated, the writ petition was maintainable. Questioning correctness of the view expressed by learned Single Judge writ appeal was filed before the Division Bench which dismissed the appeal holding that the learned Single Judge was correct in his view.

5. In support of the appeal, learned counsel for the appellants submitted that both the learned Single Judge and the Division Bench did not consider the specific plea that statutory remedy is available to the employees and for that matter the union could not have questioned the legality of the order of withdrawal of construction allowance by filing writ petition. It was further submitted that whether Section 9-A had any application to the facts of the case essentially involves questions of fact and reasoning of learned Single Judge and the Division Bench are not supportable.

6. In response, learned counsel for the respondent-union submitted that both the

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2005 Supreme(SC) 1033

Important pointWrit petition under Article 226 of the Constitution of India should not be entertained when statutory remedy is available under the Act unless exceptional circumstances are made out.

Cases Referred (10)