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CASE NO.:

Appeal (civil) 443 of 2004

PETITIONER:

U.P. State Bridge Corporation Ltd. & Ors.

RESPONDENT:

U.P. Rajya Setu Nigam S.Karamchari Sangh

DATE OF JUDGMENT: 13/02/2004

BENCH:

Ruma Pal & B.P. Singh.

JUDGMENT:

J U D G M E N T

with

Civil Appeal No 442/2004

RUMA PAL, J.

The appellant is a Government company

within the meaning of Section 617 of the Companies Act. It

carries on construction activities at various sites throughout

the country and abroad. The respondent-Union represents

the cause of 168 muster roll employees. The respondents

were working at the bridge construction unit of the appellant

at Kanpur in various capacities. The terms and conditions of

employees of the appellant are governed by Standing Orders

Certified under the U.P. Industrial Employment (Standing

Orders) Act, 1946, clause L- 2.12 of which reads:

"Any workman who remains absent from

duty without leave or in excess of the

period of leave originally sanctioned or

subsequently extended for more than 10

consecutive days, shall be deemed to

have left the services of the corporation

on his own accord, without notice,

thereby terminating his contract of

service with the corporation and his

name will accordingly be struck of the

rolls."

From 12th October 1995 the respondents-workmen did

not attend their jobs. On 18th October 1995 the appellant

issued an order which is quoted:

"Some of the workmen working at

Betwa Bridge, Arichghat, Jhansi are

absenting from duty since 12.10.1995.

Direction for smooth functioning of the

work in the interest of the Corporation

has already been given vide this Office

Notice No. 1102/1E/126 dated

16.10.1995 to such workmen.

In the light of the aforesaid, it is made

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clear that such of the workmen who do

not present themselves for duty and do

not perform work or discharge their

duty, then in accordance with the

provision contained in Clause L-2.12 of

the Certified Standing Order of the U.P.

State Bridge Corporation Ltd. [such of

the workmen, who are continuously

absent for more than 10 days, in

respect of them, it shall be presumed

that they have left the services of the

Corporation without any notice and

thus, their contract of service with the

Corporation has come to an end and

accordingly, their names from the

muster roll shall be removed] action

shall be taken in the interest of the

Corporation."

On 22nd December 1995 as amended on 28th

December 1995 a similar notice was published in a

Hindi newspaper which also stated that if the workmen

whose names were appended to the notice did not

report for duty within a period of three days from the

date of the publication of the notice, it would be

presumed that they had abandoned their services with

the Corporation without notice and their contract of

service would come to an end and their names would

be removed from the muster roll. According to the

appellant despite the repeated notices the workmen

continued to absent themselves and ultimately on

19th January 1996 an order was issued putting an end

to the services of 168 workmen on the presumption

that they had abandoned their services with the

Corporation on their own.

On 9th May 1996, one of the workmen whose

services were so terminated, namely Anand Prakash

filed a writ petition in the High Court before the

Lucknow Bench challenging the order of termination.

The writ petition was dismissed on the ground that the

workman could raise an industrial dispute if he so

desired. A second writ petition was filed by the

respondent-Union in the High Court at Allahabad. This

writ petition was allowed by orders which now are the

subject matter of challenge before us.

The learned Single Judge rejected the preliminary

objections raised by the appellant that the writ petition was

not maintainable, inter-alia, on the grounds that the

Corporation was not a State within the meaning of Article 12

and that an un-registered Union did not have the locus to

represent the workmen's cause. It is not necessary to

consider the reasoning of the learned Single Judge as

neither of these points were raised before us by the

appellant. On the question of the alternative remedy which

was available to the workmen under the Industrial Disputes

Act, the learned Single Judge was of the view that the case

did not involve any investigation into nor determination of

disputed questions of fact and that since the writ petition

was moved in 1995 and a long time had lapsed the Court

was justified in exercising its discretion under Article 226 to

entertain and dispose of the dispute. It was also held that

although in Anand Prakash's case, the writ petition raising

the same issue had been dismissed, the second writ petition

challenging the same order was not barred by the principles

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of res-judicata particularly when no decision had been taken

by the Court while dismissing Anand Prakash's writ

petition. On the other hand although the order in Anand

Prakash should not be affected in these proceedings,

nevertheless, the Learned Judge held, since the decision of

the High Court in the second writ petition would be binding,

it would be an "infructuous exercise and mere formality" if

Anand Prakash were driven to a Labour Court causing him

to "suffer unnecessary agony".

On the merits, the learned Single Judge came to the

conclusion that the word "absence" did not by itself mean

"abandonment of service" and when an employee went on

strike it was not the intention to abandon service. It was

said that "Resorting to strike is neither misuse of leave nor

over staying of leave. Standing order does not provide for

any provision as to how the question of strike is to be dealt

with." It was further said that the strike was not illegal as

no notice was required to be given to the respondent under

Section 22 of the Industrial Disputes Act, 1947. It was also

held that in any event- whether a strike was illegal or legal

- it did not amount to abandonment of service justifying

action under L-2.12. At the highest, it would be an action of

misconduct for which a punishment was provided under the

Standing Orders after an inquiry. As there was admittedly

no inquiry before the services of the workmen were

terminated, therefore, the impugned order of termination

was also held to have been passed in violation of principles

of natural justice. Finally, it was held that the order was

also bad because it did not specify the period during which

the workmen were supposed to be absent and, therefore,

the order was not an order within the meaning of clause L-

2.12 and could not be sustained. The order terminating

their services was accordingly quashed and it was directed

that the workmen including the said Anand Prakash, would

be deemed to be in service and "be treated as on continuous

service with all notional service benefits, except however,

that they would not be entitled to any payment of arrears

for the period during which they did not work actually.

Except that each of them would be entitled to a

compensation for the whole period assessed at Rs.5000/-

each".

The appellants' appeal was rejected by the Division

Bench. The Division Bench has given brief reasons for

upholding the decision of the learned Single Judge. In

addition, note was taken of the appellant's submission that

the project being completed, there was no question of

appointing the respondents in any other project. This

submission was however rejected on the ground that there

was no specific pleading to this effect and no details had

been given of the project nor of the employees engaged

therein nor were the appointment letters of the respondents

produced.

An interim order granted by this Court on the special

leave petitions filed by the appellants directing maintenance

of status quo has been continuing since 3rd March 2003.

The appellants have submitted that the High Court

should not have entertained the writ petition at all not only

because disputed questions of fact were involved but also

because the High Court had acted contrary to its previous

decision in Anand Prakash's case. It was argued that the

reasons given by the High Court for entertaining the writ

petition by exercising discretion under Article 226 were

wrong and that the matter should have been left for decision

by the fora provided under the Industrial Dispute Act, 1947.

On the merits, it is submitted that clause L-2.12 of the

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Standing Orders had been properly invoked because the

workmen had in fact unauthorisedly absented themselves

without any reason. According to the appellants, it could not

also be said that the workmen were on strike because they

had not given any notice of strike as was mandatorily

required under the U.P. Industrial Act, 1947.

Learned counsel appearing on behalf of the

respondent-Union contended that the notice published in

the newspaper was invalid as it did not comply with clause

L-2.12 of the Standing Orders. It is also submitted that on

the basis of the decisions of this Court reported in Express

Newspapers (P) Ltd. V. Michael Mark and Another

1963 (3) SCR 405 and G.T. Lad and Others V. Chemical

and Fibres of India Ltd. 1979 (1) SCC 590 that even if

the strike was illegal it could not be deemed to be an

abandonment of services. It is stated that U.P. Industrial

Dispute Act (UPIDA) specifically provided for punishment for

an employee going on an illegal strike. This was on the

basis that the workmen continued in duty and that action

could be taken in the case of such abstention from work

against the workman but only after holding a proper inquiry.

On the issue whether the High Court should have

entertained the writ petition, it is submitted that the

respondent should not be relegated to its remedies under

the UPIDA as the matter had been pending before the High

Court for several years. It is further submitted that the

appellant was a State within the meaning of Article 12 of the

Constitution and was answerable to Court for any arbitrary

action. The Certified Standing Orders, according to the

respondent, had statutory force and therefore Article 226

was properly invoked.

We are of the firm opinion that the High Court erred in

entertaining the writ petition of the respondent-Union at all.

The dispute was an industrial dispute both within the

meaning of the Industrial Disputes Act, 1947 as well the

UPIDA, 1947. The rights and obligations sought to be

enforced by the respondent-Union in the writ petition are

those created by the Industrial Disputes Act. In The

Premier Automobiles Ltd. V. Kemlekar Shantaram

Wadke 1976 (1) SCC 496, it was held that when the

dispute relates to the enforcement of a right or an obligation

created under the Act, then the only remedy available to the

claimant is to get adjudication under the Act. This was

because the Industrial Disputes Act was made to provide

"\005 a speedy, inexpensive and effective forum for resolution

of disputes arising between workmen and their employers.

The idea has been to ensure that the workmen do not get

caught in the labyrinth of civil courts with their layers upon

layers of appeals and revisions and the elaborate procedural

laws, which the workmen can ill afford. The procedure

followed by civil courts, it was thought, would not facilitate a

prompt and effective disposal of these disputes. As against

this, the courts and tribunals created by the Industrial

Disputes Act are not shackled by these procedural laws nor

is their award subject to any appeals or revisions. Because

of their informality, the workmen and their representatives

can themselves prosecute or defend their cases. These

forums are empowered to grant such relief as they think just

and appropriate. They can even substitute the punishment

in many cases. They can make and re-make the contracts,

settlement, wage structures and what not. Their awards are

no doubt amenable to jurisdiction of the High Court under

Article 226 as also to the jurisdiction of this Court under

Article 32, but they are extraordinary remedies subject to

several self-imposed constraints. It is, therefore, always in

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the interest of the workmen that disputes concerning them

are adjudicated in the forums created by the Act and not in

a civil court. That is the entire policy underlying the vast

array of enactments concerning workmen. This legislative

policy and intendment should necessarily weigh with the

courts in interpreting these enactments and the disputes

arising under them".

Although these observations were made in the context

of the jurisdiction of the Civil Court to entertain the

proceedings relating to an industrial dispute and may not be

read as a limitation on the Court's powers under Article 226,

nevertheless it would need a very strong case indeed for

the High Court to deviate from the principle that where a

specific remedy is given by the statute, the person who

insists upon such remedy can avail of the process as

provided in that statute and in no other manner.

There is another aspect of the matter. Certified

Standing Orders have been held to constitute statutory

terms and conditions of service - D.K. Yadav V. J.M.A

Industries 1993 (3) SCC 259. Although this statement of

the law was doubted in Rajasthan State Road Transport

Corporation and Another V. Krishna Kant and Others

1995 (5) SCC 75, it was not deviated from. It was however

made clear that Certified Standing Orders do not constitute

'Statutory Provisions' in the sense that dismissal or removal

of an employee in contravention of the Certified Standing

Orders would be a contravention of statutory provisions

enabling the workman to file a writ petition for their

enforcement. This is what was said by this Court in

Rajasthan Transport Corporation (supra):

"Indeed, if it is held that certified

Standing Orders constitute statutory

provisions or have statutory force, a

writ petition would also lie for their

enforcement just as in the case of

violation of the Rules made under the

proviso to Article 309 of the

Constitution. Neither a suit would be

necessary nor a reference under

Industrial Disputes Act. We do not think

the certified Standing Orders can be

elevated to that status. It is one thing

to say that they are statutorily imposed

conditions of service and an altogether

different thing to say that they

constitute statutory provisions

themselves."

Finally, it is an established practice that the Court

exercising extra-ordinary jurisdiction under Article 226

should have refused to do so where there are disputed

questions of fact. In the present case, the nature of the

employment of the workmen was in dispute. According to

the appellant, the workmen had been appointed in

connection with a particular project and there was no

question of absorbing them or their continuing in service

once the project was completed. Admittedly, when the

matter was pending before the High Court, there were 29

such projects under execution or awarded. According to the

respondent-workmen, they were appointed as regular

employees and they cited orders by which some of them

were transferred to various projects at various places. In

answer to this the appellants' said that although the

appellant corporation tried to accommodate as many daily

wagers as they could in any new project, they were always

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under compulsion to engage local people of the locality

where work was awarded. There was as such no question of

transfer of any workman from one project to another. This

was an issue which should have been resolved on the basis

of evidence led. The Division Bench erred in rejecting the

appellants submission summarily as also in placing the onus

on the appellant to produce the appointment letters of the

respondent-workmen.

There was also a dispute as to the nature of the

absence of the respondent-workmen. Correspondence said

to have been exchanged between the parties with regard to

the demands raised by the respondent-Union has been

relied upon by the respondent in support of the submission

that the absence was really on account of a strike. It is also

submitted that the correspondence indicated that notice of

the strike had been given. To counter the statement made

in the writ petition by the respondent that the workmen

were on strike, the appellants had said that no notice of

strike had been given and, therefore, the strike, if any, was

illegal. Significantly, the High Court has not relied upon

the correspondence nor has it come to any decision on

the question whether the strike was illegal or legal. In fact

the High Court has proceeded on the basis that it was the

accepted case that there was no notice given by the

workmen that they were on strike. It cannot, therefore, be

said, without more, that the absence of the respondent-

workmen from work was because they were on strike.

The High Court incorrectly applied the provisions of

Section 22 of the Industrial Disputes Act, 1947 to hold that

no notice of strike was necessary. It is conceded by the

respondent that the operative Act was the UPIDA which

differs materially, in this connection, with the Industrial

Disputes Act. Under Section 22 of the Industrial Disputes

Act, a notice of strike is required to be given, as held by the

High Court, only in the case of any public utility service and

the appellant corporation is not a public utility service.

However, under Section 65 of the UPIDA the notice of strike

is required to be given in respect of an industrial

establishment. It is not argued on behalf of the respondent

that the appellant-Corporation is not an industrial

establishment. Whatever the legal consequences of not

giving of such notice may be, it cannot be said in the

circumstances that the employees were admittedly on strike

as a matter of fact.

The only reason given by the High Court to finally

dispose of the issues in its writ jurisdiction which appears to

be sustainable, is the factor of delay, on the part of the High

Court in disposing of the dispute. Doubtless the issue of

alternative remedy should be raised and decided at the

earliest opportunity so that a litigant is not prejudiced by the

action of the Court since the objection is one in the nature of

a demurer. Nevertheless even when there has been such a

delay where the issue raised requires the resolution of

factual controversies, the High Court should not, even when

there is a delay, short-circuit the process for effectively

determining the facts. Indeed the factual controversies

which have arisen in this case remain unresolved. They

must be resolved in a manner which is just and fair to both

the parties. The High Court was not the appropriate forum

for the enforcement of the right and the learned Single

Judge in Anand Prakash's case had correctly refused to

entertain the writ petition for such relief.

Apart from this, there is an additional reason why the

judgment of the High Court cannot be sustained on the

ground of alternative remedy. When it was drawn to the

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attention of the High Court that a previous writ petition

raising the same issue had been dismissed on the ground of

the existence of an adequate alternative remedy, the High

Court should not have continued to dispose of the matter

itself under Article 226 and in effect set aside the decision in

the previous writ petition.

It was argued before us by the respondent-Union that

the notice issued by the appellant-Corporation to the

workmen to rejoin duties did not sufficiently comply with

the principles of natural justice and that individual notices

were required to be given to each of the workmen. The

submission was not raised by the respondent at any stage.

Besides, whether the notice by advertisement was sufficient

information for the purposes of compliance with the

requirements of natural justice is again a question of fact

the foundation of which should be pleaded and sufficiently

proved.

The constitutional validity of CSO L-2.12 has not been

questioned by the respondent. The respondent has

contended that the illegal strike cannot amount to

abandonment of service for the purpose of Clause L-2.12 of

the Standing Orders(CSO). But was there a strike at all? Or

was it mass absenteeism unconnected with the terms and

conditions of service?

Besides the submission that a person on illegal strike

does not abandon his job is erroneous. An illegal 'strike'

cannot by definition be "authorised absence". It would be a

contradiction in terms. We may also draw support from

Section 25-B which defines "continuous service" as

"uninterrupted service, including service which may be

interrupted on account of sickness or authorised leave or an

accident or a strike which is not illegal, or a lock-

out or a cessation of work which is not due to any fault on

the part of the workman". The specific exclusion of persons

on illegal strike plainly means that the period a person is on

illegal strike does not amount to service. Different

considerations would no doubt prevail where the strike is

legal. Workers on strike continue to be in service although

they may have ceased work. If the strike is a legal one such

cessation of work or refusal to continue would be absence

authorised by law. Under CSO L-2.12 a presumption is to

be drawn against an employee if such employee is

unauthorisedly absent. Clearly, a person on illegal strike

and a person on legal strike are both 'absent', but the

absence of the first is unauthorised and the second is not.

CSO L-2.12 raises a presumption against the employee and

it is for the employee to rebut that presumption by adducing

the evidence. It is, therefore, imperative that the factual

basis is determined by the appropriate forum. In any event

the decisions cited by the learned counsel for the respondent

as noted earlier, are factually distinguishable. In Express

Newspapers (supra), there was no condition of service

similar to Certified Standing Order L-2.12. The fact of strike

was also not in dispute. The Management had issued notice

terming the strike as unauthorised abandonment. In other

words, abandonment was pleaded as a fact on the basis of

the strike. The contention of the employer was that there

was no order of termination of service by the employer but a

relinquishment of service by the workmen. The submission

was not accepted because "the respondents by going on

strike clearly indicated that they wanted to continue in their

employment but were only demanding better terms. Such

an attitude, far from indicating abandonment of

employment, emphasised the fact that the employment

continued as far as they were concerned. The management

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could not, by imposing a new term of employment,

unilaterally convert the absence from duty of striking

employees into abandonment of their employment".

The fact of strike was also admitted in G.T. Lad

(supra). Here again there was no condition of service

similar to CSO L-2.12. The Management had issued a notice

calling upon the workmen to report within a specified period

otherwise it would be construed as an abandonment. The

workmen f ailed to report within the aforesaid period. The

Management struck out the names of the workers from the

rolls on the ground that the workmen were not interested in

service and had totally abandoned it. This Court held that

the abandonment was not a question of fact which was

required to be proved. Where the only evidence was

absence because of strike, there was no abandonment. It

was also held, following Express Newspaper (supra) that it

was not open to the company to introduce such changed

terms and conditions of service pending an industrial

dispute.

D.K. Yadav (supra) is an authority for the proposition

that the principle of natural justice would have to be read in

the Standing Orders. That was a case where there was a

standing order similar to CSO L-2.12 except that 8 days'

margin was granted within which the workman was required

to return and satisfactorily explain the reasons for his

absence or inability to return after the expiry of leave. This

view was reiterated in the later decision of this Court in

Lakshmi Precision Screws Ltd. V. Ram Bhagat 2002

(6) SCC 552 where it was held that the element of natural

justice was an in-built requirement of the Standing Orders.

In this case, the appellant- Corporation had issued two

notices calling upon the workmen represented by the

respondent to return to duty. The workmen did not respond

to either of the notices. As we have noted it was not

pleaded that the advertisement did not sufficiently comply

with the principles of natural justice. The notice was issued

giving an opportunity to the respondent to show cause why

the presumption should not be drawn under CSO L-2.12.

The respondent did not show cause. In the circumstances,

the Management drew the presumption in terms of the CSO.

The respondent said that the notice was invalid

because it did not otherwise comply with the CSO L-2.12

because of the shortening of the period of absence. This was

not an issue raised at any stage. In any event, we do not

see how the notice is not in compliance with the Certified

Standing Orders as quoted earlier.

The final submission of the respondent was that the

UPIDA provided for penalty after a departmental enquiry, in

respect of the workman who may have gone on illegal strike

and, therefore, there could be no termination of services on

account of illegal strike. The submission is unacceptable as

we have said there is no proof that the respondents were on

strike at all. Besides, merely because the action is

punishable does not mean that the consequence of an

unauthorised absence is not available under the Certified

Standing Orders if it so specifically provides.

In the circumstances, we have no hesitation in setting

aside the decision of the High Court in dismissing the writ

petition. This order will, however, not preclude the

respondent-Union if it is otherwise so entitled to raise an

industrial dispute under the UPIDA.

The appeals are allowed but without any order as to

costs.

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