State Bridge Corporation Ltd. & Ors Vs. U.P. Rajya Setu Nigam S. Karamchari
Sangh  Insc 102 (13
Pal & B.P. Singh.
Civil Appeal No 442/2004 RUMA PAL, J.
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:
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:
of the workmen working at Betwa Bridge, Arichghat, Jhansi are absenting from duty since
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
light of the aforesaid, it is made 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.
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.
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.
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 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
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.
that each of them would be entitled to a compensation for the whole period assessed
at Rs.5000/- each".
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
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.
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.
merits, it is submitted that clause L-2.12 of the 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.
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.
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.
of the firm opinion that the High Court erred in entertaining the writ petition
of the respondent-Union at all.
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 " a speedy,
inexpensive and effective forum for resolution of disputes arising between
workmen and their employers.
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 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
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.
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):
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 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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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 could not, by imposing a new term of employment, unilaterally
convert the absence from duty of striking employees into abandonment of their
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.
(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.
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.
respondent did not show cause. In the circumstances, the Management drew the
presumption in terms of the CSO.
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
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
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.
appeals are allowed but without any order as to costs.