The availability of an alternative remedy under the Industrial Disputes Act, 1947 ousts the jurisdiction of the High Court to entertain a writ petition directly for adjudication of an industrial dispute.

JUDGMENT :

1. The petitioner claims to have been engaged on 14th October, 2001 as a casual sweeper/safai karmachari of the Bank on daily wage basis. No formal letter of appointment/engagement was issued in his favour. Payment was made to him against cash vouchers.

2. The petitioner alleges that the Bank discontinued his service on and from December, 2014 without any prior intimation. No letter of termination was served upon him. It was on oral instructions that the petitioner was directed not to report to work.

3. The petitioner contends that the management of the Bank took a policy decision to regularise the service of all contractual sweepers appointed on casual basis and a list was prepared for regularisation of their services. The casual employees who were junior to him and working in the same branch were made permanent whereas his service has been terminated.

4. An industrial dispute was raised by the trade union of which the petitioner was a member. The Assistant Labour Commissioner (Central) Kolkata recorded the failure of the conciliation proceeding on 4th March, 2019. The union representative was agreeable for Voluntary Arbitration under Section 10A of the Industrial Dispute Act, 1947 while the management representative was not in favour.

5. The petitioner submits that the action of the respondents is arbitrary, discriminatory and contrary to the provisions of Articles 14 and 16 of the Constitution of India. The petitioner further submits that in the conciliation proceeding the Bank raised the point that there was no employer - employee relationship between the parties and accordingly the ratio of the judgment in the case of the Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. will not be applicable in his case.

6. The petitioner has accordingly filed the instant writ petition for redressal of his grievances.

7. The respondents have raised a preliminary objection with regard to the maintainability of the writ petition before this Court. It has been specifically contended that the petitioner was a 'workman' as per Section 2S of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act'). The dispute in question is an 'industrial dispute' as per Section 2K of the Act and the issue in question can be decided in accordance with the industrial law.

8. It has been argued that the Act is a complete code and the petitioner ought to take recourse of the statutory remedy that is available to him. The recording of failure of the conciliation proceeding on 4th March, 2019 is not under challenge. As the petitioner has already availed the remedy under the Act to challenge the action of the respondents accordingly filing a writ petition challenging the self-same action will be hit by the principle of res judicata. A party cannot initiate two separate proceedings before two separate forums on the self-same cause of action. The respondents pray for dismissal of the writ petition.

9. In response to the preliminary objection raised by the respondent the petitioner submits that the respondents on one hand before the Assistant Labour Commissioner took a specific plea that the employer - employee relationship between the parties do not exist, whereas in the present proceeding the respondents submit that the industrial dispute was maintainable. The respondents cannot approbate and reprobate at the same time.

10. It has been submitted that the alternative remedy that is available to the petitioner is not an effective and efficacious one. The petitioner was dismissed from service in the year 2014 and the failure of the conciliation proceeding was recorded in the year 2019. The petitioner further submits that his life and livelihood is at stake as he is passing through acute financial crisis. He placed reliance on the judgment delivered by the Hon'ble Supreme Court in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998) 8 SCC 1 wherein the Court held that the alternative remedy would not