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1999 Supreme(All) 757
IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
U.P.RAJYA SETU NIGAM SANYUKT KARMACHARI SANGH - Appellant
Versus
U.P.STATE BRIDGE CORPORATION, LUCKNOW - Respondents
C. M. W. P. 36071 Of 1995 and 4043 of 1996
Decided On : 05/18/1999
N.C.RAJVANSHI, V.B.SINGH
Resorting to strike, even if illegal, cannot be equated at par with unauthorized absence, and the termination of service under Clause L-2-12 of the Standing Order could not be sustained when the workmen were on strike, though allegedly on illegal strike.
Headnote:
SERVICE TERMINATION - STANDING ORDER - STRIKE - ABANDONMENT OF SERVICE - WRIT JURISDICTION - ALTERNATIVE REMEDY - AMENDMENT OF WRIT PETITION - Vires OF STANDING ORDER - UNION REPRESENTATION - RES JUDICATA - DISPUTED QUESTION OF FACT - ILLEGAL STRIKE - PENALTY - ABSENCE - STRIKE AS ABANDONMENT OF SERVICE - INTERPRETATION OF STANDING ORDER - NATURAL JUSTICE - VIOLATION OF FUNDAMENTAL RIGHT - JURISDICTION OF COURT - CERTIFIED STANDING ORDERS - STATUTORY TERMS AND CONDITIONS OF SERVICE - TERMINATION OF SERVICE - RETRENCHMENT - RIGHT TO STRIKE - FUNDAMENTAL RIGHT - VOID ORDER - WRIT OF MANDAMUS - WRIT OF CERTIORARI - COMPENSATION.
Fact of the Case:
Petitioners, 168 workmen in Writ Petition No. 36071 of 1995, and 66 workmen in Writ Petition No. 4043 of 1996, were terminated from service by striking off their names from the rolls under Clause L-2-12 of the Standing Order for workmen employed in the U.P. State Bridge Corporation. The termination was effected on the ground that the workmen were on strike for a considerable period, though they were allegedly on illegal strike. The petitioners contended that they were on strike for a considerable period through sitting dharna and various other modes in support of their demand for bonus and other claims, whereas the respondents pointed out that no notice of such dharna or strike was ever given to the respondents by the Union.
Finding of the Court:
The Court held that the termination of service under Clause L-2-12 of the Standing Order could not be sustained, as the workmen on illegal strike could not be treated to have abandoned the job or deemed to have left the service of the Corporation. The Court further held that resorting to strike, even if illegal, could not be equated at par with unauthorized absence, and that the impugned order was void ab initio and liable to be quashed.
Issues: 1. Whether the termination of service under Clause L-2-12 of the Standing Order could be sustained when the workmen were on strike, though allegedly on illegal strike? 2. Whether resorting to strike, even if illegal, could be equated at par with unauthorized absence? 3. Whether the impugned order was void ab initio and liable to be quashed?
Ratio Decidendi: 1. The Court held that the termination of service under Clause L-2-12 of the Standing Order could not be sustained, as the workmen on illegal strike could not be treated to have abandoned the job or deemed to have left the service of the Corporation. The Court reasoned that strike is a protest by abstaining or refraining from the work or ceasing or refusing to work, which is completely different from absence coupled with a protest with an active state of process to refuse to work while absence is a passive means of keeping away from work. The Court further reasoned that resorting to strike is not an abandonment of service or termination of service, but is for demanding dues out of the contract of service, and that if resorting to strike is given the meaning of absence of leaving of service or termination of service, the most important mode of collective bargain would perish. 2. The Court held that resorting to strike, even if illegal, could not be equated at par with unauthorized absence. The Court reasoned that strike is a protest by abstaining or refraining from the work or ceasing or refusing to work, which is completely different from absence coupled with a protest with an active state of process to refuse to work while absence is a passive means of keeping away from work. 3. The Court held that the impugned order was void ab initio and liable to be quashed, as it was passed beyond the scope and ambit of Clause L-2-12 of the Standing Order and was an order of termination simpliciter, though sought to be dressed under the provision of the said clause of the Standing Order.
Final Decision: The Court declared the impugned orders dated 9th January 1996 and 30th October 1995 and 4th November 1995 as void ab initio and non est, and quashed the same. The petitioners were deemed to be in service and treated as on continuous service with all notional service benefits, except that they would not be entitled to any payment of arrears for the period during which they did not work actually. However, each of them would be entitled to a compensation for the whole period assessed at Rs. 5,000 each.
( 1 ) IN these cases a very simple but an interesting question is raised. The question as to whether, termination of service under Clause L-2-12 of the certified Standing Order of U. P. State Bridge corporation Ltd. on the abandonment of service on account of unauthorised absence for more than consecutive 13 days during the period when admittedly the workmen were on strike, though might be illegal, could be sustained?
( 2 ) WHILE opposing the proposition Mr. V. B. Singh, learned counsel for the petitioner appearing with Sri Narendra Mohan, learned counsel had sought to support the said question through different questions of law based on admitted facts. On the other hand, Shri N. C. Rajvsnshi ably assisted by Shri Arun Gupta, learned counsel for respondents had similarly raised various questions of law on admitted facts.
( 3 ) THE facts in these cases are not in dispute. Those are in brief as follows : in writ petition No. 36071 of 1995, services of 168 workmen were terminated by an order dated 30. 10. 1995, contained in Annexure-6 to the writ petition and the order dated 4. 11. 1995 in respect of one workman, as amended. While in Writ Petition No. 4043 of 1996, services of 66 workmen were terminated by an order 9. 1. 1996, published in Hindi daily Dainik Jagran on 12. 1. 1996. In both the cases, the termination was effected by striking off the names of the respective workmen from the rolls in terms of Clause L-2-12 of the Standing Order for workmen employed in the U. P. State Bridge Corporation [hereinafter referred to as the said Corporation]. This fact has been asserted in Writ Petition No. 36071 of 1995 in paragraph 7 since been admitted in paragraph 17 of the counter-affidavit and as well as in Writ Petition No. 4043 of 1996 which fact does not appear to have been controverted by the respondents in view of the statement made in paragraphs 9 and 10 of the counter-affidavit which does not contain any specific denial.
( 4 ) THE petitioners alleged that they were on strike for a considerable period through sitting dharna and various other modes in support of their demand for bonus and other claims whereas the respondents in the counter-affidavit had pointed out that no notice of such dharna or strike was ever given to the respondents by the Union, on the other hand, the Union had been adopting illegal means Impermissible in law despite managements requests to the workers to return to work. In these background, the names of two groups of workmen involved In the two writ petitions were struck off from the rolls on 30. 10. 1995. 4. 11. 1995 and 9. 1. 1996 respectively as stated herein before. In these background the contentions and counter contentions have since been raised by the counsel for the respective parties.
( 5 ) MR. N. C. Rajvanshi, learned counsel for respondents had raised six preliminary objections. (i)The first one is that this writ petition is not maintainable since the petitioners are seeking to enforce their alleged legal right arising out of standing orders which has no statutory force as has been held in the case of Rajasthan State Road Transport Corporation v. Krishna Kant. J995 (5)SCC 75, and as such the action of the respondents cannot be amenable to writ jurisdiction, (ii)Secondly he contends that the dispute as to whether the names can be struck off on account of continuous absence of the workers is a question of fact viz. , whether they were on strike or unauthorised absence could be adequately dealt with before the Labour Court or Industrial tribunal when this Court is not capable of determining such question of fact, the writ petition is not maintainable on the ground of alternative remedy. (iii) He next contends that the petitioner had sought for leave to amend the writ petition seeking to Incorporate the prayer challenging the vires of Clause L-2-12 of the Standing Order which, was since granted on 18. 9. 1996 in Writ petition No. 36071 of 1995 from which Special Appeal No. 212 of 1996
