S.P. Talukdar, J.@mdashGrievance of the writ petitioner as ventilated in the application relates to alleged wrong recording of his age/date of birth in the service record and respondent authority''s refusal to rectify the same. The backdrop of the case may briefly be stated as follows:
The petitioner was working as a Khalasi P. No. 11603 in Traffic Iron Department of IISCO Steel Plant, Burnpur as a contractor labour of respondent No. 6 under principal employer, IISCO Steel Plant since 1st May, 1991.
2. Age of the petitioner was recorded as per estimation of the contractor as about 49 years. The respondent No. 6 after awarding a contract for a period of one year by letter dated 18.11.2006 approached the Concerned authority for renewal of photo gate pass of 27 workers i.e., for those who were working under him. The respondent No. 6 also sent a chart of workers in which the name, father''s name, address and age of the workers were given. Name of the petitioner was there as against serial No. 17. The age of the petitioner was rightly recorded therein as 35 years in the year 2006. The authority concerned accordingly issued a photo pass in favour of the petitioner and it correctly records petitioner''s date of birth as 21.12.1974. But unfortunately the petitioner''s age had been wrongly recorded in the service record as 49 years in September, 2006.
3. The petitioner got himself medically examined in the Sub- Divisional Hospital on 31st January 2005. There his approximate and apparent age was given as between 32 to 34 years.
4. The petitioner approached the concerned authority for necessary correction of his date of birth in the service record but to no avail. He then submitted a representation on 11.9.2006. The same however, has not received the attention and care it deserved.
5. In view of such consistent non-response on the part of the authorities, the petitioner approached this Court with a writ application being W.P. No. 6796 (W) of 2007. The same was disposed of by an order dated 26.11.2007 with a direction upon the authority to pass a reasoned order within a period of eight weeks from the date of communication of the order. The date of hearing was fixed on 10.1.2008.
6. Though the direction was made to respondent No. 3 being the Chief Personnel Manager (NW & CL), Personnel Department of the Company, one Mr. R. K. Mondal, Assistant General Manager, issued a notice dated 31.1.2007 directing the petitioner to appear before him on 10.1.2008 for a personal hearing. The petitioner accordingly attended the hearing on the said date. Mr. R. K. Mondal, Assistant General Manager, though not authorized, proceeded with the hearing and he did not place any reliance upon the certificate issued by the Asansol Sub Divisional Hospital regarding the approximate age of the petitioner. Thus, by order dated 16.1.2008 the representation dated 11.9.2006 submitted by the writ petitioner was disposed of on the findings that there is no merit in it.
7. Being aggrieved by such order, the petitioner once again approached this Court for redressal of his grievances.
8. As reflected from the earlier order dated 10.3.2008, since the writ application was sought to be contested on legal points, this Court did not find it necessary to allow the respondent authority to file any affidavit-in-opposition, nor any opportunity was sought for by the said authority. As submitted by Mr. Gupta, as learned Counsel for the respondent-authority, the allegations/averments made in the writ application are deemed not to have been admitted.
9. Mr. Gupta, as learned Senior Counsel for the respondent-authority, challenged the maintainability of the present proceeding on the ground that the writ petitioner could very well approach the Industrial Tribunal for necessary redress. According to him, this writ court has no reason to entertain the present application. In support of such contention, Mr. Gupta referred to the decision of Thakur Majhi and Anr. v. The Chairman-cum-Managing Director, Eastern Coalfields Limited and Ors. reported in 1995 (2) CLJ, page 127. Deriving inspiration from the said decision, it was contended on behalf of the respondent/authority that the Industrial Disputes Act, 1947 is a self-contained Code. The rights of a workman arise under the said Act. The said Act also provides forums for adjudicating upon the disputes, inter alia, in relation to dismissal, discharge or removal from service. The remedy of the petitioner, according to Mr. Gupta, under the Industrial Disputes Act, is more efficacious and there is no reason for exercise of this extraordinary constitutional writ jurisdiction. Mr. Gupta further submitted that the expression "any person" in Section 2(k) is significant enough and also takes care of the present writ petitioner. In the Case of Thakur Majhi & Anr. (Supra), it was held that under the general law of master and servant, no contract of personal service can be enforced. Three instances have been carved out namely - (i) when the petitioner enjoys a status and his service conditions are protected under Article 311 of the Constitution of India; (ii) if he is an employee of a statutory corporation and an order of dismissal is passed in violation of the mandatory provisions of any statutory rule governing the conditions of service and (iii) a workman whose conditions of service are governed under the Industrial Disputes Act.
10. Section 2(k) of the Industrial Disputes Act refers to three things i.e., (i) There should be a dispute or difference; (ii) The dispute or difference should be between employers and employers, or between employers and workmen or between workmen and workmen; (iii) The dispute or difference must be connected with the employment or non-employment or the terms of employment or with the conditions of labour, or any person. Relying upon an earlier decision in the case of
11. Mr. Gupta further contended that the words "any person" used in Section 2(k) may not be equated with the words "any workman". On the other hand, Mr. S. Banerjee appearing as learned Counsel for the writ petitioner submitted that existence of alternative statutory remedy not a constitutional bar to High Court''s jurisdiction. It is at the most a self-imposed restriction. Referring to the decision of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. (1998) SCC 1, Mr. Banerjee contented that the alternative remedy would not operate as a bar in at least three contingencies; (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. Mr. Banerjee, emphatically submitted that since the dispute raised in the present application relates to enforcement of fundamental right under Article 16 of the constitution and in view of the fact that the action taken by the authority is in violation of the principles of natural justice, doors of the writ court cannot be closed to the writ petitioner.
12. Going a step further Mr. Banerjee contended that the relegation of the writ petitioner to alternative remedy is not warranted when the grounds as laid down in the case of Whirlpool Corporation (Supra) are made out. Mr. Banerjee in this context, placed reliance upon the decision in the case of
13. Considering all the facts and circumstances of the present case, this Court is inclined to hold that it cannot be said that the present application is not maintainable though question may very well be raised regarding justifiability of entertaining the present application. It is worth mentioning that even if there is existence of an alternate legal remedy, this Court''s power of granting prerogative writs under Article 226 does not deserve to be questioned. Ref: Rashid Ahmed v. The Municipal Board, Kairana AIR 1950 SCC 163. It cannot be disputed that this point relating to jurisdiction was not raised in connection with the earlier writ petition. Admittedly, the order under challenge in the present case was passed by the concerned authority in compliance with the direction given in the earlier writ application. Thus, at this stage, it would certainly be not just and proper to close the doors of the writ court to the petitioner. After all, the order under challenge in the application is an outcome of the order dated 26.11.2007 passed in W.P. No. 6796 (W) of 2007. Such order cannot thus be challenged before the Industrial Tribunal. It has also been rightly submitted by Mr. Banerjee on behalf of the petitioner that since there is an allegation of violation of the fundament right as well as principles of natural justice, question of throwing the writ petitioner to the Industrial Tribunal just cannot arise. The point next raised is whether the petitioner can have any right as against the present respondent since he was a contractor labour and not a direct workman under the IISCO. I find it difficult to appreciate such contention made on behalf of the respondent authorities. This is more so in view of the understanding/agreement arrived as per back as on 17.5.1988 between IISCO Management and the representative of the five functioning unions on behalf of the contractor labourers. The very fact that such an agreement was made, goes a long way to indicate that respondent authority legally recognized the status of the contractor labourer.
14. Now it has to be seen as to how far the writ petitioner''s allegation can be sustained. The date of birth recorded in the photo pass is 21st February, 1974. This gives his age as 32 years in 2002 but the annexures at page 22 records it as 35 years. The photo pass, as referred to, was issued by the appropriate authority in responses to the letter dated 18.11.2006 being annexures ''A'' at page 21. But by no stretch of imagination such photo pass can be accepted as a valid document in support of age of the writ petitioner. The certificate issued by the Asansol Sub Divisional Hospital being annexures ''P-2'' at page 25 goes a long way to suggest that the writ petitioner was born in between in 1971 - 1973. But such a certificate is rather uncalled for and it carries more "curses than kisses". How the authority concerned of the Asansol Sub Divisional Hospital could issue such a certificate without being officially requested is not known. It certainly does not speak well of the hospital authorities. Mr. Gupta referring to the agreement as mentioned in the impugned order dated 16th January, 2008 at page 37 contended that Age Board was constituted as per mutual agreement. The standing order as produced before this Court does not lend any support to the petitioner''s claim. Order 34 relates to verification and recording of age. Mr. Gupta quite rightly submitted that such standing orders are not applicable to the present writ petitioner who admittedly is a contractor labour. Since the petitioner is not an employee under the respondent authorities, the relevant Order 34 does not seem to have any application. More over, the writ petitioner does not seem to be equipped with any such document which could inspire confidence of this Court. From the materials available on record, it is found that along with many others, the writ petitioner was examined by the Age Board. The document dated 25th June, 1999, i.e., a chart, indicating the age of the persons so examined, was published. The writ petitioner was examined on 22nd February, 1999. His age was determined as 42 years. Such finding was not properly and effectively challenged nor any appeal was preferred by him seeking further examination by another Board.
15. In such backdrop, this Court finds no rational justification for raising of such grievances at this belated stage.
16. In such facts and circumstances, I find no merit in the present application, which, being W.P. No. 2755 (W) of 2008, stands accordingly dismissed. No order as to costs.
17. Xerox certified copy of this judgment, if applied for, be supplied to the parties upon due compliance of the legal formalities.
