1999 Supreme(Cal) 611

High Court Of Calcutta
D. P. Kundu
U.N.PANDEY - Appellant
Versus
EASTERN COALFIELDS LTD. - Respondent
W. P.  22630 (W)  Of  1998
Decided On : 11/26/1999

An employee, even if he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, of a "state" within the meaning of Article 12 of the Constitution of India can maintain a writ petition against his employer who is a "state" within the meaning of Article 12 of the Constitution of India provided he can prove that his fundamental rights guaranteed by Part-III of the Constitution of India have been violated by his employer.

Headnote:

INDUSTRIAL DISPUTES ACT, 1947 - SECTION 2(S) - WORKMAN - ARTICLE 12 OF THE CONSTITUTION OF INDIA - "STATE" - ARTICLE 14 OF THE CONSTITUTION OF INDIA - PRINCIPLES OF NATURAL JUSTICE - ARTICLE 21 OF THE CONSTITUTION OF INDIA - RIGHT TO LIFE AND PERSONAL LIBERTY - MODEL STANDING ORDERS FOR INDUSTRIAL ESTABLISHMENT IN COAL MINES - SECTION 17(I) - MISCONDUCT - DISMISSAL FROM SERVICE. Employee, irrespective of whether he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 or not, of a "state" within the meaning of Article 12 of the Constitution of India acquires a status in view of the legal relationship between him and his employer which is not the position in a case where an employee's employer is not a "state" within the meaning of Article 12 of the Constitution of India. An employee, even if he is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947, can maintain a writ petition against his employer who is a "state" within the meaning of Article 12 of the Constitution of India provided he can prove that his fundamental rights guaranteed by Part-III of the Constitution of India have been violated by his employer and if he can prove that his employer has violated any or more fundamental rights then he is not required to approach the forum under the provisions of Industrial Disputes Act, 1947, instead he can straight away move a writ application before the High Court against his employer. In a case where a disciplinary action taken by an employer who is not a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is a workman within the meaning of Section 2(s) of Industrial Disputes Act, 1947 then the only forum available to the workman is the forum under Industrial Disputes Act, 1947. But in a case where a disciplinary action taken by an employer who is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employer is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 the workman can, in my opinion, initiate a writ proceeding before the High Court provided his fundamental rights guaranteed by Part-III of the Constitution of India have been violated by such action of the employer. The list of misconducts under Section 17(i) of the Model Standing Orders is exhaustive. One must not overlook that the Model Standing Orders which govern and guide the service conditions of the writ petitioner is specially meant for the Coal Mines and not applicable to other industrial establishments.

Fact of the Case:

The petitioner, a Despatch Clerk in Sodepur Colliery under Eastern Coalfields Ltd., was charged with dishonesty and neglect of work. An enquiry was conducted and the petitioner was found guilty. He was dismissed from service by an order dated November 10, 1998. The petitioner challenged the charge-sheet, the enquiry proceeding, and the punishment awarded to him by way of a writ petition.

Finding of the Court:

The court held that the petitioner was dismissed from service in violation of the procedure established by law and his fundamental right guaranteed by Article 21 of the Constitution of India was also violated. The court further held that the enquiry report, the findings of the enquiry officer, and the order of dismissal dismissing the petitioner from the service were null and void.

Issues: 1. Whether the writ petition is maintainable in view of the availability of an alternative remedy under the Industrial Disputes Act, 1947? 2. Whether the petitioner's fundamental rights under Articles 14 and 21 of the Constitution of India have been violated? 3. Whether the enquiry proceeding and the order of dismissal were vitiated due to violation of principles of natural justice?

Ratio Decidendi: 1. An employee of a "state" within the meaning of Article 12 of the Constitution of India can initiate a writ proceeding when his fundamental rights guaranteed by Part-III of the Constitution are violated by he employer. 2. A workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 of an employer who is a "state" within the meaning of Article 12 of the Constitution of India acquires a status and belongs to a class different from a workman whose employer is not a "state" within the meaning of Article 12 of the Constitution of India. 3. In a case where a disciplinary action taken by an employer who is not a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is a workman within the meaning of Section 2(s) of Industrial Disputes Act, 1947 then the only forum available to the workman is the forum under Industrial Disputes Act, 1947. But in a case where a disciplinary action taken by an employer who is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employer is a "state" within the meaning of Article 12 of the Constitution of India is called in question by an employee who is workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 the workman can, in my opinion, initiate a writ proceeding before the High Court provided his fundamental rights guaranteed by Part-III of the Constitution of India have been violated by such action of the employer. 4. The list of misconducts under Section 17(i) of the Model Standing Orders is exhaustive.

Final Decision: The writ petition was allowed. The order of dismissal, the enquiry report, and the findings of the enquiry officer were set aside and quashed. The petitioner was entitled to the full salary for the period if any spent under suspension and from the date of dismissal till he is allowed to resume his duty.