@JUDGMENTTAG-ORDER
V.G. Palshikar, J.@mdashThis petition is filed by a Union registered under the Indian Trade Unions Act, bearing Registration No. 86 the Registration having been made on August 6, 1986. Its members comprised of the employees of the Public Health Engineering Department, working in the State of Rajasthan. This is alleged to be a representative petition on behalf of workmen who are members of the Union and whose names are mentioned in the Schedule attached to the petition.
2. On September 1, 1986 a Circular was issued by the Government stating that these employees, who are members of the petitioner-Union were not entitled to payment for weekly holidays and the payments already made should be recovered. These Circulars are impugned in this petition.
3. It will be worthwhile to note the prayers verbatim.
"(a) The respondents be directed to pay to the workmen mentioned in the Schedule, salary in the regular pay scale on and from the date they came in service and regularise their payment. The Respondents be also directed to give them all benefits which are being given to the regular employees. If for giving this relief, Sub-rule 2 and Sub-rule 3 of Rule 3 of the Rules are considered to be of any impediments, the said sub-rules may be declared to be illegal and may be struck-down.
(b) Further, the respondents be restrained from making any recoveries of payments made for weekly holidays and they may be directed to continue to make payment for weekly holidays to the said workmen.
(c) For giving aforesaid relief, circulars dated September 1, 1986, March 17, 1983 and March 27, 1982 may be struck-down.
(d) If for any reason any recoveries are made from the wages of the workmen, the Respondents be directed to refund the same to them with interest @ 18% per annum. Further to this if wages for weekly holidays are denied hereafter, the respondents be directed to pay the wages to the workmen with interest @ 18% p.an.
(e) The petitioner Union be awarded a sum of Rs. 3,000/- as cost of this writ petition."
4. A scrutiny of these prayers will show that each of it is an Industrial Dispute, liable to be raised as such by the Union on behalf of the members. Prayer (a) pertains to a demand to pay to the workmen, salary in regular pay scale. If payment of salary is not made, remedy lies under the Payment of Wages Act. If it is not regular and proper salary, remedy can lie under the Minimum Wages Act. In any event, it requires evidence to prove that the employees are entitled to a particular scale of salary and that scale of salary is not being paid to them which cannot be adjudicated upon in a writ petition.
5. Prayer (b) demands a writ, prohibiting the respondents from making any recovery and a direction to continue to make payment for weekly holidays to the said workmen. The action impugned in this petition whereby payment of weekly holidays was stopped or payment of regular salary as promised by conditions of Service was not being paid. All these actions amount to a change as mentioned in Section 9A of the Industrial Disputes Act. Such change cannot be brought about without notice to the employees and an industrial dispute can be realised in the regard. It will thus, be seen that each prayer made in this petition is such as can be agitated under the Industrial Disputes Act, 1947. It is, therefore, an equally efficacious alternate remedy available for the petitioner-Union to follow. When the matter came up for hearing, this question was raised as to why the Union should not go to the Industrial/Labour Court for adjudication of its dispute as it is equally efficacious remedy, Mr. M. Mridul, learned counsel appearing on behalf of the petitioner-Union, submitted that the petition having been already admitted, is liable to be heard on merits and should not be dismissed for existence of alternate remedy. The question which arises for adjudication in such circumstances is whether a petition already admitted can be dismissed for availing the alternate remedy.
6. A brief history of litigation of such kind in the State of Rajasthan, is required to be traced, as this question is regularly argued before me at regular intervals, inspite of the Larger Bench decision of this Court rendered unanimously by five Judges of this Court in the case of
7. It was more or less an accepted practice of this Court till 1990, to admit for hearing, petitions directly filed before this Court, pertaining to violation of the provisions of the Industrial Disputes Act, inspite of the fact that an adequate remedy under that Act was available. In due course of time, a Full Bench judgment was delivered in Smt. Indu v. Municipal Council, Jodhpur and Ors. 1991 (1) RLR 68, taking a view that entertaining such petition directly is not prohibited. Yet another decision was rendered in Rajasthan Pul Nigam Workers Union and Anr. v. Rajasthan State Bridge Construction Corporation Ltd. and Anr. 1991 (2) RLR 188, by another Division Bench of this Court, after interpreting the Full Bench in the case of Smt. Indu (supra) that such petition, as a matter of course can be entertained. Sitting singly on admission Roster of Civil Writs in Service Matters, I noticed this aspect and was unwilling to treat, as a matter of course such writ petitions directly in the High Court. The matter was, therefore, argued at length at the time of admission in Writ Petition No. 3011790 Gopilal Teli v. State of Rajasthan and Ors (supra). Several Lawyers addressed the Court on the issue of alternate remedy. They were led by Mr. M. Mridul, Sr. Advocate, who has now raised this point in the present petition. After hearing the Advocate, I made an order of reference, bringing out the conflict of decisions, which according to me, existed in the Full Bench decision in Indu ''s case and the Division Bench decision in Rajas-than Pul Nigam Workers'' case (supra). A Bench of Five Hon''ble Judges was constituted by my Lord the Chief Justice (Mr. Justice G.C. Mittal), heard the matter at length. Arguments before the Larger Bench were also led by Mr. M. Mridul, Sr. Advocate, and the Larger Bench, unanimously delivered its opinion. It has answered the question referred in the negative i.e. saying:
"After giving our thoughtful consideration to the facts and submissions made at the Bar and in view of catena of cases decided by the Apex Court on the question referred to us, we are of the opinion that the answer to the question referred by the learned Single Judge is in negative and we are further of the view that the ratio laid down by the Full Bench of this Court in Smt. Indu''s (supra) and the Division Bench in Rajasthan Pul Nigam''s case (supra) does not lay down correct law and we specifically overrule the aforesaid decisions. We are of the opinion that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and, power under Article 226 of the Constitution of India in such cases should be sparingly exercised. "
8. It has, thus been laid down in unequivocal terms by a Five Judges Bench of this Court that for violation of the provisions of Industrial Disputes Act or violation of principles of natural justice, the normal course is to pursue the remedy provided under the Act and the power under Article 226 of the Constitution of India in such cases, should be sparingly exercised. In the face of this decision now, I am asked to regularly exercise this power under Article 226 in every case which is admitted prior to 1995. In fact, I am asked to ignore the decision rendered by five Hon''ble Judges of this Court. I do not think it proper and in keeping the judicial decorum. I do not think it permissible in law. I think it is unconstitutional inface of Article 141 of the Constitution of India.
9. The Supreme Court has, in large number of cases, held that alternate remedy, normally should be pursued but it is not an absolute bar and in a fit case it may be possible for to decide for the first time in Writ jurisdiction, a dispute for which alternate remedy exists. But such circumstances are, therefore, very rare and as has been laid down by the Larger Bench of this Court, such exercise should be sparingly made. The argument that every matter, which is admitted, must be finally heard and decided on merits, irrespective of the existence of alternate remedy, after the 1995 judgment is, in effect, an argument that as a matter of rule, all cases admitted prior to 1995, should be heard on merits only. It is pertinent to note that Gopilal Teli''s case (supra) was instituted in 1990 and came up for admission in 1994. It was pending admission for four years. At that very time, petitions admitted in 1990 were also pending for four years. The nature of pendency of a case would, therefore, depend upon the kind of orders made by the Judge, presiding over the Bench.
10. Admission of a case for final hearing is prima-facie expression of the opinion that it requires adjudication, after calling upon the other side to show cause against the claim made by the petitioner. An admission cannot be called a pronouncement by the Court that the alternate remedy shall be ignored. Therefore, the argument that because the matter is admitted, it should be decided on merits is fallacious argument.
11. In the Full Bench reference in Smt. Indu v. Municipal Council (supra), the question referred to the Larger Bench reads as under:
"Whether disputes arising out of the Chapter V-A, V-B and V-C of the Industrial Disputes Act which almost cover all the disputes arising out of Section 25A to 25U of the Industrial Disputes (Central) Rules can be directly entertained by this Court under Article 226 of the Constitution and if so, under what conditions, or whether such disputes being industrial disputes u/s 10 read with Section 11A of the Industrial Disputes Act of 1947 should be first heard and decided by the Industrial/Labour Tribunals and thereafter if relief is not granted to the party by the appropriate forum then only, it should be allowed to come under Article 226 of the Constitution of India before this Court. Alternatively:- To put it differently, whether the reference of a dispute u/s 10 read with Section 11 of the I.D. Act as regards the disputes mentioned in Chapter V-A, V-B and V-C of I.D. Act read with Rules 77 and 78 of Industrial Disputes (Central) Rules, offer an alternate, adequate and effective remedy which must normally be availed by the petitioners before they come to this Court directly under Article 226 of the Constitution."
12. Then in para (2) of the judgment, the Hon''ble Judges of the Full Bench observed as under:
"The basic question which comes up for determination in these references is whether a writ petition can directly be maintained for violation of the provisions of Chapters V-A, V-B and V-C of the Industrial Disputes Act, 1947 and Rules 77 and 78 of the Industrial Disputes (Central) Rules without first availing the statutory remedy provided under the Industrial Disputes Act."
13. Then, after consideration of the entire case law in the matter and the submissions made at Bar, has answered the question in para 28 as under:
"28. In the result, we answer the reference in the following manner:
That Sections 10 and 11A of the Industrial Disputes Act, 1947 do not bar entertainment of writ petition under Article 226 of the Constitution of India, where it does not involve any disputed/complicated question of fact. However, the power/discretion should be exercised with great care and caution."
14. It was, thus, laid down by the Full Bench that where a petition involves disputed questions of fact or complicated questions of fact, the litigant must go to the Industrial Court. In cases where no such questions are involved, availability of remedy under Sections 10 and 12 of the Industrial Disputes Act does not bar entertainment of a writ petition directly and a caution was made that such discretion should be exercised with great care and caution. This decision was read to mean that whenever there is no dispute of fact, a writ petition should normally be entertained by the High Court.
15. In Rajasthan Pul Nigam Workers Union v. Rajasthan State Bridge Construction Corporation Ltd., (supra) a Division Bench of this Court interpreted the Full Bench decision. The Division Bench went on to observe as under:
"In addition to what has been observed by the Full Bench in Smt. Indu''s case (supra) we would like to observe that even in cases where remedy is available in respect of the violation of the provisions of the Industrial Disputes Act, the Court cannot ignore the fact that the process of conciliation for making reference is extremely tardy and dilatory. The information which has been furnished by the Labour Department under the directions of the Court disclose that the Government takes about six months to one year''s time in taking a decision to make or not to make reference of the disputes after the receipt of the failure report from the Conciliation Officer. We do not have the statistics about the time taken in the conciliation proceedings but from the various cases which have come before the Court, it can safely be concluded that few months'' time is spent in the process of conciliation proceedings. After reference, it usually takes a period of atleast one year before a dispute is decided by the competent adjudicating authority. There are many cases where long time is taken in deciding the disputes. It is not possible to ignore the consequences of this delay. It is, therefore, in public interest also that the Court must invoke its extraordinary jurisdiction and entertain the Writ Petition where violation of Sections 25F and 25G of 1947 Act is apparent from the record of the case and no useful purpose is served by asking the party to avail the alternate remedy. Even in cases where the employer raises a plea of question of fact, the Court must always remain on its guard in deciding this issue and unless there is a real disputed question of fact, specious plea of disputed questions of fact must not be used as a subterfuge to non suit a bona fide and genuine claim involving branch of the provisions contained in Sections 25F and 25G of 1947 Act."
16. The effect of this Division Bench Judgment interpreting the Full Bench judgment in Indu''s case (supra) was, writ petition is liable to be entertained directly by this Court in almost all cases. The caution and emphasis given by the Full Bench was given a go by. It was my inability to agree with these principles of law that led to the reference in Gopilal Teli''s case (supra). A Larger Bench of Five Judges, after discussing and laying down the rules for the State of Rajasthan, categorically observed as under:
"We..... are further of the view that the ratio laid down by the Full Bench of this Court in Sm. Indu''s case (supra) and the Division Bench in Rajasthan Pul Nigam''s case (supra) does not lay down correct law and we specifically overrule the aforesaid decisions."
17. The consequence of the overruling as per law is, therefore, that no petition shall be directly entertained by this Court where alternate remedy under the Industrial Dispute is available. To carve out an exception of this rule in relation to an admitted case, would be circumventing the decision of the Larger Bench, which is impermissible in law. As I have already observed, admission of a particular case, for final hearing, is only an expression of a prima-facie opinion of existence of an adjudicable dispute and not a finding that the alternate remedy must be ignored. There are other reasons also for my coming to this conclusion, to which I will make reference at a little later stage.
18. Mr. Mridul, learned Sr. Advocate, appearing on behalf of the petitioner cited a judgment of the Supreme Court reported in
"9. The learned counsel for the appellant has urged that the High Court was in error in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy having regard to the fact that the writ petition had been filed in 1988 and it had been admitted and was pending in the High Court for the past more than five years. The learned counsel has also urged that the High Court was not right in saying that there was dispute on question of fact. According to the learned counsel there is no dispute that the appellant had been selected by the Selection Committee for appointment on the permanent post of Professor which was advertised and the said recommendation of the Selection Committee was accepted by the Executive Council in its Resolution No. 197 dated November 8, 1984. The fact that the name of the appellant was also included in the list of Readers for personal promotion to the grade of Professor in Resolution No. 198 of the Executive Council would not mean that the appointment of the appellant to the post of Professor was by way of personal promotion and not on the basis of selection for the cadre post of professor which was advertised. The learned counsel also submitted that it is not the case of the appellant that he joined the post of Professor in Physics on November 8, 1984 and that his case is that the appellant as well as Respondents 4 and 5 all joined as Professor in Physics on November 9, 1984.
"10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was not right in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy u/s 68 of the Act especially when the writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor u/s 68 of the Act, it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was not a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and Respondents 4 and 5. We may, in this context, mention that Respondent 4 has already retired in January 1994."
19. The Supreme Court chose to entertain the appeal in the facts stated in para 9 of their judgment. What the Supreme Court has observed is that the High Court was not right in dismissing the writ petition on the ground of alternate remedy, especially when it was pending since 1988. What has been mentioned by the Supreme Court was that the question which is raised before it was a bare question of law and even if the matter is referred to the Tribunal under Rule 66, it was open to be adjudicated by the parties aggrieved. It was in this view that the Supreme Court has observed that the High Court should not have non-suited the appellant on the ground of availability of alternate remedy. This decision is of no help in the present case. What has been prayed for is grant of regular scale. What has been prayed for is a direction that weekly holidays should be paid for. The payment made should not be recovered and certain circulars be declared illegal, each of which requires factual evidence. The Union has to prove as a fact that a particular scale was offered and is not being paid. Weekly holidays were bound to be paid to and no recoveries can be ordered. It is, therefore, not a case raising a pure question of law as contemplated by the Supreme Court in the decision quoted above. Here the petitioner union has raised certain demands which can be and should be agitated only as an industrial dispute by a Labour Court. Hence, non- suiting a Union on this point is not one which can be said to have been covered by the decision of the Supreme Court cited above. A Union of workers stands under a different footing than a workman alone. An individual may not be non-suited awaiting an alternate remedy in a given case, if it is a case of extreme hardship and would cause injustice. In such rarest of the rare cases interference directly may be possible. Such a petition at the instance of the Union, however, cannot be heard.
20. Reliance was placed, thereafter, by the learned counsel on a judgment of this Court reported in ILR 1979 29 Raj. 515, where it is observed that once a petition is admitted later on it should not be rejected on the ground of delay. It was also held in this case that remedy of review under Rule 34 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 was not adequate as alternate remedy. In the present case, there cannot be any such question in view of Section 9A of the Industrial Disputes Act. This judgment is, therefore, of no consequence. The petitioner is not being non-suited for delay and it may be possible to argue that an individual oppressed by certain merciless employers stands on a different footing than a Union. The Union is a powerful mechanism created for benefit of the employees. Such Union cannot, therefore, be heard to say that it was not aware of the law of alternate remedy and that it need not go to the alternate remedy. In the present case, the Union has to establish each individual case, the date on which a particular employee was employed, the scale offered to him, the scale which ought to have been paid to him and the fact that the scale not being paid has to be proved. The mere fact of such averment in the writ petition is not denied in the reply, is in my opinion, insufficient in coming to a conclusion that there is factual violation of right of payment. It cannot, therefore, be accepted that a contention raised, not having been refuted, stands admitted and, therefore, the entire averment in this regard of offer of a particular scale, its non-payment etc. stands proved. To deliver writs, in such omnibus fashion would be a gross misuse of the powers conferred on the High Court by Article 226 of the Constitution, I for one do not wish to make this gross misuse at the behest of a Union in a case where the factual claim of each employee differs in nature and is required to be proved. I am, therefore, unable to accept the contention on behalf of the Union that merely because the petition is admitted it should not be dismissed on the ground of existence of alternate remedy.
21. Reliance was then placed on a decision of this Court reported in WLN 1980 321, where a learned Single Judge of this Court has observed that the objection that the petitioner had an alternate remedy under Rule 18 of the Rules, does not survive when the writ petition has already been admitted and heard on merits. This case, obviously, is no longer good law, after the Five Judges decision in Gopilal Teli''s case (supra). Further, no reasons are stated in para 8 why the objection of alternate remedy cannot exist. Further, that again was a case of an individual and an individuals'' case has to be weighed differently than a claim representatively made by a Union.
22. Reliance was then placed on a Division Bench decision of this Court in Deepak Kumar Khivsara v. Oil India Ltd. 1996 RLW (2) Raj 188, to which I was a party. The judgment was delivered by my Lord the Chief Justice Mr. M.G. Mukherji and it is observed in para 2 that cases where there is flagrant violation of the principles of natural justice or where the orders are without jurisdiction the writ petition in case of an individual may be entertained. It is then observed as under:
"The Full Bench answered the question as referred to by the learned Single Judge to the effect that for violation of the provisions of Chapter V-A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice; the normal course is to pursue the remedy provided under the Act and exercise of power under Article 226 of the Constitution of India in such cases should be "sparingly made".
23. In para 6 it is said, the facts of the present case, however, make out one of the sparing exceptions. Individual claim of Deepak Khivsara against Oil India Ltd. which was being agitated by him since 1989, and, therefore, after enumerating the several submissions raised by him, it was observed that the matter should be decided on merits. I consider it necessary as a member of that Division Bench to state that I agreed to interfere directly in that case as it was individual case of Deepak Kumar Khivsara. Several questions of law and fact were raised. The petitioner had suffered unemployment for more than six years and, therefore, it was considered by me to be a rare case in which a petitioner should not be non-suited after his petition was admitted six years ago. This case cannot be interpreted to mean as carving out an exception from the rule laid down by Five Judges Bench. If such interpretation is sought of this judgment, I make it clear that was not the intention and if I am taken to have said so, I was wrong in so saying. I regret my lethargy in not writing a separate opinion in this regard at that time. I regret the mistake caused by me as a party to that Division Bench judgment. Even it it is said to be the ratio of the judgment of Deepak Kumar Khivsara''s case (supra), it will have to be treated as no good law in view of the pronouncement of the Larger Bench in Gopilal Teli''s case (supra).
24. The situation is analogous to the one in the Rajasthan Pul Nigam''s (supra) judgment delivered. What was laid down by the Full Bench of the Rajasthan High Court in Indu''s case (supra) was added to by Rajasthan Pul Nigam''s case by interpreting the judgment in Indu''s case. What has been done in Deepak Kumar Khivasara''s case (supra) by putting an interpretation on the judgment of Gopilal Teli''s (supra) case is similar. The Larger Bench has, in the circumstances, held Rajasthan Pul Nigam''s case to be no good law and, therefore, on the same footing the decision in Deepak Kumar''s case is no good law. I sincerely regret being party to that judgment. I will try my best not to repeat such mistake in future.
25. Yet another aspect which I want to make clear is, Deepak Kumar was an individual and not a powerful Union established or created under the Industrial Disputes Act or a machinery at the instance of such Union. A union cannot be heard to say that it ignored the alternate remedy specially created for the Union. I take this opportunity to explain my mistake and it will be a mistake if that judgment in Deepak Kumar''s case is read to mean as watering down the effect of judgment in Gopilal Teli''s case (supra), which, as aforesaid, was not permissible as also not intended.
26. A distinction must always be made in a collective fight taken on behalf of all the employees by the Union and an individual workman singly fighting for his own right. In view of the ratio of Gopilal Teli''s case (supra), even an individual normally must go to the Industrial Court and must take the alternate remedy and if he desires exercise of jurisdiction of this Court directly, must point out to this Court that is the rarest of the rare cases where non-exercise of discretion of Article 226 would result in total denial of justice to him. I am, therefore, of the considered opinion that the present petition is liable to be dismissed for existence of alternate remedy which should be taken up by the Union.
27. Yet another reason for not entertaining the petition directly which is to be considered and was not considered herein before is the fact of loss of remedy by the losing party. It will be seen that an Industrial Tribunal or Labour Court would be under the Industrial Disputes Act, 1947. A Court or Tribunal subordinate to the High Court as contemplated by Article 227 of the Constitution, where there is jurisdictional error by the Tribunal or Court or where gross injustice is caused or where there is failure of justice, a petition under Article 227 can always be entertained. A writ of certiorari can also go in certain cases of failure of justice or violation of procedural laws and, therefore, entertaining a petition directly in this Court, by-passing the Tribunal or Court established by the Industrial Disputes Act, would be resulting in deprivation of the remedy to the losing party. A workman or the employer-State losing before the Industrial Court or Tribunal will have an opportunity to agitate for its right before this Court by way of a petition. The loser of this litigation before the Tribunal can also agitate the correctness of the order of the Tribunal before this Court. There is no doubt that remedy of an appeal is a procedural remedy. To deny that remedy by a judicial pronouncement would be a judicial activism in excess and, therefore, it should not be entertained.
28. Arguing Writ Petition No. 1219/1988, almost identical contentions were raised by Mr. Mahesh Boda, learned counsel for the petitioner. He relied on several decisions of the Supreme Court, as was done by Mr. Mridul, in support of his proposition that alternate remedy is no bar and certainly should not be evoked in cases which are admitted years ago. He also placed reliance additionally on a judgment of this Court reported in 1996 WLR 515 (supra). I have already considered the decisions cited by Mr. Mridul as also the judgments of the Supreme Court noticed by the Larger Bench in Gopilal Teli''s case (supra). As I have already held; it is not open for me to read down the ratio in Gopilal Teli''s case in any manner. If, according to the learned counsel, certain decisions have escaped attention of the Larger Bench, the remedy is before the Supreme Court of India and not a Single Bench of the Rajasthan High Court. The decision in 1996 WLR 515 (supra) is absolutely of no assistance in the present case, as what has been laid down by the Division Bench is that remedy of civil suit is not adequate alternate remedy, where question of withdrawal of pay scale without giving opportunity of hearing arises. It has no application to the facts of the present case. Here the alternate remedy is available. The petitioner is complaining of violation of Section 9A of the Industrial Disputes Act. There cannot be a better case of existence of alternate remedy. Whatever I have said above, apply mutatismutandis to the petitioner Union in this case.
29. In the result, both these petitions fail and are dismissed for existence of alternate remedy. Each petitioner shall pay the cost of Rs. 1100/-to each of the respondents.
