1989 Supreme(Raj) 943

RAJASTHAN HIGH COURT AT JAIPUR BENCH
N.C.Sharma, J.
Raj. Pul Nigam Workers Union & Ors. - Appellant
Versus
Raj. State Bridge & Construction Corporations & Anr. - Respondent
S.B. Civil Writ Petition No. 716 of 1988 and 43 other petitions.
Decided On : 01-12-1989

The existence of an alternative remedy under the Industrial Disputes Act, 1947, bars the entertainment of a writ petition for relief against contravention of provisions of Chapter V-A of the Act, subject to certain exceptions.

Headnote:

INDUSTRIAL DISPUTES ACT - SECTION 25-N - APPLICABILITY - CONSTRUCTION WORK - FACTORY - INDUSTRIAL ESTABLISHMENT - RETRENCHMENT - ALTERNATIVE REMEDY - WRIT PETITION - JURISDICTION - EXHAUSTION OF REMEDIES - INDUSTRIAL TRIBUNAL - REFERENCE.

Fact of the Case:

44 writ petitions filed by daily wage workers employed by Rajasthan State Bridge Constructions Corporation Ltd. (Corporation) challenging the termination of their services on the ground of completion of construction work at a particular site. Petitioners alleged violation of Section 25-N of the Industrial Disputes Act, 1947 (Act) and sought quashing of termination orders, reinstatement, and payment of salary by fixing them in regular pay scale.

Finding of the Court:

1. The Corporation is a fully controlled Rajasthan State Government undertaking engaged in construction of various kinds of buildings, bridges, roads, canals, and other constructions. 2. Petitioners were employed in various capacities like Junior Engineers, Operators, Electricians, Helpers, Site Supervisors, Store-munshies, Mistries, etc. on daily wage basis at different rates. 3. The Corporation had undertaken construction works at four Units in Kota Circle, namely, Engineering College, Soya-been Plant, Abti Bridge, Police Quarters, Chandra-bhaga Jalrapatan, Kasimpura, Thermal and Swimming Pool, Chambal Project, Baran Unit-Anta Project, Mangrol Project, Kali Sindh Project, Parwati Bridge, etc. 4. The Corporation also advertised for workers and staff in daily Hindi newspapers in connection with new construction works. 5. The Corporation terminated the employment of five workmen on March 31, 1988, on the ground that the construction work at a particular site had completed or was going to complete. 6. Petitioners alleged that the Corporation was victimising daily rated workmen by terminating their employment on the ground of completion of work at a particular site and that the Corporation had flouted the mandatory requirements of Section 25-N of the Act by not giving any notice or pay in lieu of notice period and not obtaining the approval of the State Government. 7. Petitioners also alleged that the Corporation was an industrial establishment and that the action of the Corporation in not making these daily rated employees permanent and not providing them the regular pay scales amounted to 'unfair labour practice'. 8. The Corporation contended that the appointment was for a specific work only on daily wages, that all construction works undertaken by the Corporation were of temporary nature for a specified period, and that units were abolished on completion of the work of respective units. 9. The Corporation denied that casual workers were shifted from one site to another site and that it had adopted the need-based pattern, giving Resident Engineers the freedom to appoint, terminate, and retrench workmen from time to time as per need and requirement. 10. The Corporation also denied the applicability of Section 25N of the Act in the present matters, stating that seniority list had been published project wise and retrenchment orders had been made on the basis of the seniority list. 11. The Corporation further denied the charge of unfair labour practice and detailed the works undertaken by it in Kota Division, including the completion or nearing completion of various works.

Issues: 1. Whether the provisions of Section 25-N of the Industrial Disputes Act, 1947 (Act) are applicable to the petitioners' case. 2. Whether the petitioners have an alternative remedy under the Act by seeking reference to the Industrial Tribunal under Section 10(1) of the Act. 3. Whether the writ petitions are maintainable in light of the alternative remedy available under the Act.

Ratio Decidendi: 1. The applicability of Section 25-N of the Act depends on whether the establishment in question is an 'industrial establishment' as defined in Section 25-L of the Act. 2. The definition of 'industrial establishment' in Section 25-L includes a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948. 3. A factory is defined as any premises including the precincts thereof wherein ten or more workers are working or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on. 4. The determination of whether the establishment or undertaking in question is a 'factory' is a question of fact to be determined. 5. If Chapter V-B of the Act does not apply, then the petitioners may fall back on Section 25-F of the Act relating to retrenchment of workmen. 6. In that case, it would be necessary to consider whether it is a case of an undertaking closing down and governed by the provisions contained in Sections 25-FFA and 25-FFF of the Act. 7. The existence of an alternative remedy under the Act does not affect the jurisdiction of the High Court to issue a writ, but it is a factor to be taken into consideration in the matter of granting writs. 8. The rule of exhaustion of remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law. 9. The Court may, therefore, in exceptional cases issue a writ in its writ discretion notwithstanding the fact that the statutory remedies have not been exhausted.

Final Decision: All 44 writ petitions were dismissed on the ground that the petitioners had an alternative, adequate, and efficacious legal remedy available to them under the Industrial Disputes Act, 1947, and that they should have exhausted the alternative remedy by seeking reference to the Industrial Tribunal under Section 10(1) of the Act.