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IN THE HIGH COURT OF CALCUTTA
Manjula Chellur, Arijit Banerjee, JJ.
M/S. Hindustan Cables Ltd. - Appellant
Vs.
Tapan Kumar Sarkar - Respondent
M.A.T. 1446 of 2015 and C.A.N. 9278 of 2015
Decided On : 17-08-2016
For the Appellants :Mr. Partha Sarathi Sengupta, Senior Advocate, Mr. P.B. Choudhury, Advocate
For the Respondents:Ms. Debjani Sengupta, Mr. Sobhan Majumdar, Ms. Tiyasa Banerjee, Ms. Shreya Bhatterjee, Advocates,
For the Union of India :Mr. Sajal Kanti Bhattacharyya, Advocate,
Headnote:
MAT 1446 OF 2015 & MAT 1860 OF 2015 - [WRIT PETITION - MAINTAINABILITY - MONEY CLAIM - ALTERNATIVE REMEDY - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946 - INDUSTRIAL DISPUTES ACT, 1947 - COMPANIES ACT, 2013 - SETTLEMENT - RETIREMENT AGE - INDUSTRIAL TRIBUNAL - WRIT COURT - JURISDICTION - ESTOPPEL - LIMITATION - PERPETUATION OF ILLEGALITY - ARTICLE 14 OF THE CONSTITUTION OF INDIA - ARTICLE 16 OF THE CONSTITUTION OF INDIA - ARTICLE 226 OF THE CONSTITUTION OF INDIA - LABOUR COURT - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) INDUSTRIAL RULES, 1946 - STANDING ORDERS - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946, SECTION 2(G) - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946, SECTION 3 - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946, SCHEDULE - INDUSTRIAL EMPLOYMENT (STANDING ORDERS) ACT, 1946, SECTION 10 - INDUSTRIAL DISPUTES ACT, 1947, SECTION 2(P) - INDUSTRIAL DISPUTES ACT, 1947, SECTION 18 - INDUSTRIAL DISPUTES ACT, 1947, SECTION 19(2) - INDUSTRIAL DISPUTES ACT, 1947, SECTION 33C - COMPANIES ACT, 2013, RULE 1(XIX) - CONSTITUTION OF INDIA, ARTICLE 14 - CONSTITUTION OF INDIA, ARTICLE 16 - CONSTITUTION OF INDIA, ARTICLE 226]
Fact of the Case:
1. The writ petitioners are employees or ex-employees of the appellant company at the Rupnarainpur Unit of the Company. 2. Contending that their age of retirement is 60 years, the writ petitioners approached the Learned Single Judge alleging that the appellant company has not been making payment of their salaries and other allowances after attaining the age of 58 years though they continued or are continuing in service till the age of 60 years. 3. Appearing on behalf of the Hindustan Cables Ltd. (in short the Company), Mr. Partha Sarathi Sengupta, Learned Senior Counsel urged a preliminary point of maintainability of the writ petition. He submitted that the writ petitioners have filed the instant proceeding to enforce a money claim simpliciter. 4. Appearing for the respondents/writ petitioners, Ms. Sengupta submitted that the tripartite agreement of 1974 contained a clause regarding the retirement age being 60 years subject to approval of the Board of Directors.
Finding of the Court:
54. The contention of the company is that the 1964 Standing Orders stipulate 58 years of age as the retirement age of the employees/workmen. Two extensions of one year each could be granted but it is nobodys case that such extensions were granted. The 1977 Standing Orders did not contain a clause relating to retirement of the employees and as such the 1964 Standing Orders would prevail. There was never any amendment to the 1964 Standing Orders following the procedure prescribed in law. To the extent there is inconsistency between agreements/settlements entered into by and between the Management and the workmen on the one hand and the Standing Orders on the other hand, the provisions of the Standing Orders would prevail. 55. On the other hand, the writ petitioners contend that the Industrial Employment (Standing Orders) Industrial Rules, 1946 which apply to the company, did not prescribe mentioning of retirement age at the time the 1964 and 1977 Standing Orders were framed. The requirement of having a retirement clause came in by way of amendment in 1983. Hence, the retirement clause mentioning age of superannuation as 58 years in the 1964 Standing Orders was superfluous and of no effect. The 1973 tripartite agreement and the subsequent 2001 bipartite agreement would be holding the field in so far as retirement age is concerned. Under both the agreements retirement age was stipulated as 60 years. Hence, according to the petitioners, they would be entitled to receive salary for the services rendered beyond the age of 58 years and up to the age of 60 years. On the contrary, the company contends that there was no occasion for the writ petitioners to render any service beyond the age of 58 years as from 2003 the production of the company had shut down. 56. We have noted in details the arguments advanced on behalf of the parties. We have given anxious consideration to the submissions of the parties. The subject matter of the writ petition is purely a monetary claim. The writ petitioners insist that they are entitled to salary and other benefits for service rendered between 58 years and 60 years of age while the company maintains that retirement age at all material times was 58 years and in any event, the employees, in fact, did not render any service beyond the age of 58 years. These are disputed questions of fact which, in our opinion, cannot be conveniently gone into in the exercise of writ jurisdiction. There is an alternative and much more efficacious statutory remedy available to the writ petitioners. Section 33C(2) of the Industrial Disputes Act provides for a mechanism for resolution of disputes relating to a workmans claim for money or any benefit which can be computed in terms of money. 57. The view we are taking is not only because of the existence of an alternative remedy. We are conscious that existence of an alternative remedy is not a complete bar to the maintainability of a writ petition. It is only a rule of self-imposed restriction that a court follows while exercising high prerogative writ jurisdiction under Article 226 of the Constitution of India. In several cases, including the case of Whirlpool Corporation (supra), the Apex Court has observed that availability of an alternative remedy per se does not denude the writ court of jurisdiction. Thus, in cases where the order/action challenged is without jurisdiction or the order has been passed or action taken in breach of the principles of natural justice, the writ court may be justified in entertaining an application under Article 226 of the Constitution in spite of an alternative remedy being available to the aggrieved party. However, that is not the case here. There is no reason why the writ petitioners should not approach the labour Court under Section 33C(2) of the ID Act.
Issues: 1. Whether the writ petition is maintainable? 2. Whether the earlier Division Bench order is binding on this court?
Ratio Decidendi: 1. The writ petition is not maintainable. The writ petitioners have an alternative and much more efficacious statutory remedy available to them under Section 33C(2) of the Industrial Disputes Act, 1947. 2. The earlier Division Bench order is not binding on this court as it was passed per incuriam.
Final Decision: The appeal is allowed and the judgment and order impugned is set aside.
Arijit Banerjee, J.
Both the appeals mentioned above arise from same judgment and order dated 19 June, 2015 passed by the Learned Single Judge whereby WP 3572 (W) of 2012 was allowed. Since both the appeals involve same set of facts, the same are taken up together for hearing and disposal by this judgment.
2. The writ petitioners are employees or ex-employees of the appellant company at the Rupnarainpur Unit of the Company. Contending that their age of retirement is 60 years, the writ petitioners approached the Learned Single Judge alleging that the appellant company has not been making payment of their salaries and other allowances after attaining the age of 58 years though they continued or are continuing in service till the age of 60 years. The writ petitioners accordingly, prayed for a writ in the nature of mandamus commanding the respondent company and the Union of India to release their salaries and allowances and further pay their monthly salary till their superannuation and directing the respondents to release retiral benefits of the petitioners who have superannuated. The Learned Judge allowed the writ petition. The operative portion of the judgment of the Learned First Court is as follows:-
"I thus, allow the writ petition and direct the respondent company to take necessary steps for payment of admissible dues to the petitioners who have already retired from service and to release the unpaid salaries and allowances to the petitioners who are still in service and to go on paying the same till they attain the age of superannuation. Such steps are to be taken within a period of ten weeks from the date of the communication of the order.
Needless to mention, if necessary, the respondent no. 1 shall provide the requisite financial assistance to the respondent company for making necessary payment to the writ petitioners in terms of this order if the respondent no. 1 is otherwise obliged to bear the financial burden of the company in this regard."
Challenging the aforesaid judgment and order the appellant company and the Union of India have filed separate appeals which are before us.
Submission on behalf of the Hindustan Cables Ltd. (appellant No.1 in MAT no. 1446 of 2015)
3. Appearing on behalf of the Hindustan Cables Ltd. (in short the Company), Mr. Partha Sarathi Sengupta, Learned Senior Counsel urged a preliminary point of maintainability of the writ petition. He submitted that the writ petitioners have filed the instant proceeding to enforce a money claim simpliciter. Mr. Sengupta then submitted that a contractual right and that too a plain and simple money claim cannot form the basis of a writ petition. In this connection he relied on a decision of the Honble Supreme Court in the case of M/s. Burmah Construction Company v. The State of Orissa, AIR 1962 SC 1320, wherein at paragraph 6 of the judgment the Honble Apex Court observed that the High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. However, an order for payment of money may sometimes be made in a petition under Article 226 against the State or against an officer of the State to enforce a statutory obligation. He also relied on a decision of the Honble Supreme Court in the case of Suganmal v. State of Madhya Pradesh, AIR 1965 SC 1740.
4. Mr. Sengupta then submitted that as per the Standing Orders, 1964 issued under the Industrial Employment (Standing Orders) Act, 1946, which apply to the company and its employees/workmen, every employee shall retire from service on attaining the age of 58 years. Extension for two years in all, but not more than one year at a time may be given at the discretion of the Management (clause 4(i)). He then referred to the Standing Orders, 1977 and submitted that the same have no
