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SMT. SAROJ BALA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Smt. Saroj Bala v. State Of U.P. And Others - WRIT - A No. 19640 of 2004 [2004] RD-AH 395 (29 July 2004)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                               Court No. 7

Civil Misc Writ Petition No.19640 of 2004

                 Smt. Saroj Bala              Vs.              State of U.P. and others          

Connected with

1- W.P.No.26119 of 2004 Nazir Ahmad Vs State of U.P. and others.

2- W.P.No.19636 of 2004 P.K.Yadav Vs State of U.P. and others.

3- W.P.No.19637 of 2004 Samina Khatoon Vs State of U.P. and others.

4- W.P.No.19638 of 2004 Raj Kumar Vs State of U.P. and others.

5- W.P.No.19641 of 2004 Smt. Vasundhara Pandey Vs State of U.P. & others.

6- W.P.No.19643 of 2004 Smt. Sudha Dubey Vs State of U.P. and others.

7- W.P.No.19644 of 2004 Smt. Sarvari Begum Vs State of U.P. and others.

8- W.P.No.19646 of 2004 Smt. Kalindi Devi Vs State of U.P. and others.

9- W.P.No.19647 of 2004 Smt. Sakina Begum Vs State of U.P. and others.

10- W.P.No.19648 of 2004 Smt. Sita Shukla Vs State of U.P. and others.

11- W.P.No.19650 of 2004 Smt. Anju Srivastava Vs State of U.P. and others.

12- W.P.No.19651 of 2004 Smt. Munira Khatoon Vs State of U.P. and others.

Hon'ble Rakesh Tiwari, J.        

Heard counsel for the parties and perused the record.

          A large number of writ petitions have been filed by the employees by the U.P. State Handloom Corporation challenging the validity and correctness of  a   notice of  retrenchment dated 12.4.2004 issued under Section 6 N(a) of the U.P. Industrial Disputes Act, 1947.  The question of law and facts involved in all the writ petitions is the same. The writ petition No. 19640 of 2004 Smt. Saroj Bala Versus State of U.P. and others   is being taken as the leading case.

Background.

          The notice has been challenged on the ground that persons junior to the petitioner(s) are sought to be retained in service whereas the services of the petitioner(s) is sought to be terminated in violation of the provisions of Sections 6N and Section 6P of the U.P. Industrial Disputes Act, 1947,read with   Rule 42 of the U.P. Industrial Disputes Rules, 1957.

        The U.P. State Handloom Corporation Limited was established in the year 1973 by the State Government of U.P. and is a Government (Public) Company under Companies Act 1956.

        Due to change in Textile Policy and overall recession in the global economic scenario the Government of India curtailed the subsidy on many of the controlled items drastically affecting the business of the Corporation. The economic   condition of Corporation became critical and it could not pay the salaries of its employees even for  about 3 years. A large number of employees and the Unions of the employees working in the Corporation  therefore, preferred petitions before this Court as well as Lucknow Bench of this Court for payment of their salaries.

         In the aforesaid backdrop the Board of Directors of the Corporation took a policy decision to reorganize the business by curtailment of manpower and for adopting such other steps, which may improve the financial condition of the Corporation.

       

           The proposal for downsizing of the manpower of the Corporation and its rehabilitation was considered. The relevant extract of the decision in rehabilitation decades is as under:-

"It is proposed to downsize its manpower which has been already brought down from 2323 to 1748 to 599 by way of VRS / CRS / Retrenchment . Reduction in manpower will be due to closure of Janata Cloth production activities, closure of unviable showrooms and closure of unproductive uncontrolled Cloth production centers.    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -- - - - - - -- - - - - -- - - - - -- - -- --- - --- - - -- -- ------------ - ----- -- -- - -- -It is further being made clear that on account of the reason that the business of the Corporation is paralysed to the extent that neither there was any work for the employees nor any fund to pay the salary to them and as such the Corporation has taken the decision to curtail manpower firstly by giving VRS and thereafter by way of retrenchment. It is again being made clear that the responsibility of the Corporation was increasing day to day for payment of salaries to its employees without even their working. Since the Corporation was not having sufficient work for all the employees and as such it was decided to curtail the manpower either by way of VRS or retrenchment."

             In order to implement the aforesaid policy decision and rehabilitation package steps to curtail the manpower notices  were issued by the Managing Director of the Corporation informing the employees to adopt the VRS otherwise the Corporation will have to resort to retrenchment.  The efforts to revive the financial health of the Corporation by adopting the VRS failed, as only about 600 employees opted for voluntary retirement. The Corporation then resorted to retrench the employees to bring down the number of employees to required level by giving the notice of retrenchment-dated 12.4.2004. The notice was to became effective w.e.f. 15.4.2004.

            It is submitted by the counsel for the petitioner that the curtailment of manpower with a view to revive and reorganize the corporation, is irrational and opposed to public policy besides being arbitrary and illegal as the retrenchment of employees is in violation of provisions of the U.P. Industrial Disputes Act, 1947. It is further submitted that the   notice has been published in the daily newspaper for making mass-scale retrenchment categorizing employees in different pay-scales for the purposes of applying the principle of ''Last come first go' and that the persons, who do not belong to the category of ''Workmen', have been included in the list, which vitiates the entire procedure of retrenchment. It has also been submitted that the Corporation has not adhered to the policy of ''Last Come First Go' and in fact junior persons are being retained on the basis of incorrect calculation of seniority, which ought to have been calculated from the date of initial entry in service. It  has been submitted that while excluding the seniors much junior persons in the name of reservation have been retained creating a sub category which is not contemplated either  under the provisions of  the U.P. Industrial Disputes Act, 1947  or the Rules framed thereunder. This deviation according to the counsel for the petitioner is illegal and could not have been made.  

           Lastly it is submitted by the counsel for the petitioner that seniority has been wrongly fixed as it is against Rule   29(3). Rule 29(3) provides that inter se seniority of the persons promoted from the lower grade, shall be maintained in the higher grade as well. Thus it is submitted that petitioner is entitled for computation of his seniority from the date he joined in the clerical cadre viz-a-viz others for the purposes of applying the principle of "Last Come First Go". This question does vitiate the notice and has to be considered and decided by the Labour Court on facts.

              The counsel for the petitioner has placed reliance on a G.O. dated 23.1.76, which lays down the guidelines of retrenchment in respect of dependent of an employee dying in harness due to economic measures. The G.O. provides that where retrenchment is to be resorted to due to economic measures, the employee appointed on compassionate ground may be given protection even though he may be a employee junior in his category.

                   Sri S.N. Singh, counsel for the respondents submits that the procedure of retrenchment provided under the Act was strictly followed and there is no illegality or irregularity in the notice for retrenchment dated 12.4.2004, that the present petition is premature, not maintainable and is liable to be dismissed. He further submits that in case any employee is aggrieved by the action of retrenchment he has a   remedy under the Industrial Disputes Act and the petitioner cannot challenge the validity and procedure of retrenchment in writ petition under Article 226 of the Constitution of India.  He also submits that as there is no work available for all the employees in the Corporation nor it has funds to pay salary to them as such Corporation has no other alternative but to reorganize the business by curtailment of manpower by way of retrenchment.

           Reorganization of business by retrenchment is an accepted principle in industrial laws. In so far as question of giving notice to the employees is concerned, he submits that section 6-N of the U.P. Industrial Disputes Act, 1947 only imposes a limitation upon the employer and subjects his power to retrench his workmen, to certain mandatory conditions conferred in clause (a) and (b) of the Section 6N of the Act which must be satisfied before the power can be exercised. Clause (c) of Section 6 N of the Act has been held to be only directory and non-compliance does not render the notice invalid. Relying upon AIR 1958 SC 1012 Macropollo D. & Co. (P) Ltd. Vs. Employer's Union and and 1970 Lab. IC 196, Modren Stores Vs. Krishnadas he has urged that an employer has a right to reorganize his business and if such re-organization results in discharge of some employee, it will not be a ground for inference of   mala fide. He states that as it was not possible to give individual notice and the same was published on the Notice Board as well as in the Newspaper having wide circulation and there was no necessity of giving notice to the State Government separately.

          Sri S.N.Singh has drawn the attention of the Court to clause 2 of The U.P. Handloom Corporation Ltd. (Officers and Staff)  Service Rules, 1981 framed in exercise of powers conferred under Article 127 of the Articles of Association of the Corporation. Rule 2 provides that the rules apply to   all employees of the Corporation except   those covered under Clause 2( iii) of the 1981 Rules who are subject to labour laws. Relevant extract of Rule 2 is as under:

            " (iii) These rules shall not apply to the following categories of employees:

(a) " Employees" "Workers" or persons of any other definite descriptions who are governed by the various industrial and/or labour enactments, such as the U.P.Industrial Disputes Act, the Factories Act, the Employees State Insurance Act, the Industrial Employment Standing Orders) Act, the U.P.Shops and Commercial Establishment Act, and the rules, regulations or standing orders (by whatever name known) framed thereunder:

(b) Part-time workers, daily rated persons, contingent and work-charged employees including casual worker."

        Employee and workmen in the aforesaid Rules have been defined in clause 3(ix) and ( xxiv) which read as under:

          " (ix) " Employees means and includes a person appointed as adviser, officer, ministerial or supervisory staff or designated by any other name whether employed directly by the Corporation or borrowed from any outside source, i.e., by deputation or otherwise.

             (xxiv) " Workmen" means a person as defined in the Uttar Pradesh Industrial Disputes Act, 1947 and to whom these bye-laws do not apply."

            In view of the aforesaid Rules 2(iii) , 3 (ix) and 3 (xxiv) and Rule 29(3) is not attracted for the purpose of seniority in the instant case and has to be determined by the Labour Court in respect of  each category of employee in the various establishments of the Corporation according to the provisions of Section 6(P) of the ID Act, 1947 read with rule 42 of the UPID Rules, 1957.

            As regards G.O. dated 23.1.76, the Apex Court in  (2004) 3 SCC-429 State of Kerla and another Vs. Chandramohanan relying upon  (2003)8  SCC-204 Punit Rai Vs. Dinesh Chaudhary and (2004) 2 SCC-510 Union of India Vs. Naveen Jindal has held that the G.Os. are not the law.                                                                   There is  no distinction between an employee appointed on compassionate ground or on regular/ permanent or Daily wage basis. All the  employees are to be treated equally. It is for the employer to see whether the services of an employee appointed under the Dying in Harness Rules can be protected or not in pursuance of G.O. dated 23.1.76. ''Protection' under the G.O. does not mean that the G.O. which is an administrative guideline can over-ride the law and the Constitutional mandate of equality before law.

               In Rajasthan State Road Transport Corporation and another Vs. Krsihna Kant and others, 1995 (V) SC-75 the apex Court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947. The question whether disputes involving observance, recognition or enforcement of rights and obligation created under the I D Act or its sister enactments such as Payment of Wages Act, Payment of Gratuity Act, Factories Act, Workmen Compensation Act etc. including Industrial Employment (Standing Orders) Act, which do not provide any special adjudicatory forums are  ''industrial dispute' within the meaning of Section 2(k) or Section 2-A of ID Act or that such disputes treated as industrial disputes they shall not  be adjudicated by any other the forum except created by I D Act, i.e.  they shall be adjudicated only by forums created under ID Act.

                In case of   Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke  (1976) 1 SCC-496 the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by the Apex Court in paras 23 and 24 of the judgment which are as under:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

     

  24. We may, however, in relation to Principle no.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No.3 stated above."

       In L.L. Sudhakar Reddy Vs. State of Andhra Pradesh (2001) 6 SCC-634 the Apex Court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.

     Similarly in State of Bihar Vs. Jain Plastics & Chemical Ltd. (2002) 1 SCC-216 the Apex Court has held that existence of alternative remedy would be a good ground for not entertaining writ petition.

In Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549 it has been held that where alternate remedy is available in industrial law , or writ petition would not be maintainable.

          From the aforesaid decisions the law is well settled that the alternative remedy available in industrial courts is more efficacious and speedy. The powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. These forums are empowered to grant such relief as they think just and appropriate. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the Supreme Court and High Court. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created under the Industrial Disputes Act and other labour laws which cannot be by passed and have to be exhausted before approaching the High Court under Article 226 of the Constitution of India. Adjudication of the questions involved in this petition depends on evidence. It is not for this Court to question the propriety of notice or whether the retrenchment is justified or not .The fact that the State Government/Corporation has failed to adjust the employers in some other Corporation is also irrelevant for deciding the legality of notice of retrenchment. The question whether the compliance of provisions of Section 6N of the Act have been made whether  it is malafide or bonafide or  the reasons given by the employer to retrench some of the employees or retaining  persons alleged to be  junior in a particular category of workmen  are all questions  which can   be decided only  on the basis of documentary and oral evidence adduced   by the parties before the Labour Court or the Industrial Tribunal and not before the High Court under Article 226 of the Constitution of India. The Apex Court in a catena of decisions has held that it is not within the realm of the High Court under Article 226 of the Constitution of India to adjudicate such questions of facts. Questions raised in these petitions require adjudication on facts, which cannot be gone into by this Court under Article 226 of the Constitution of India. Mere notice to retrench cannot be challenged. In any case as follow up action can be challenged by the aggrieved persons before the Labour Court/ Industrial Tribunal.

For these reasons, this Court is not inclined to interfere in these matters as the petitioner has an efficacious and alternative remedy available to him.

The writ petition is therefore, dismissed on the ground of alternative remedy. No order as to cost.

Dated: 29.7.2004

CPP/

                                                                            Court No. 7

Civil Misc Writ Petition No.19640 of 2004

                 Smt. Saroj Bala              Vs.              State of U.P. and others          

Connected with

1- W.P.No.26119 of 2004 Nazir Ahmad Vs State of U.P. and others.

2- W.P.No.19636 of 2004 P.K.Yadav Vs State of U.P. and others.

3- W.P.No.19637 of 2004 Samina Khatoon Vs State of U.P. and others.

4- W.P.No.19638 of 2004 Raj Kumar Vs State of U.P. and others.

5- W.P.No.19641 of 2004 Smt. Vasundhara Pandey Vs State of U.P. & others.

6- W.P.No.19643 of 2004 Smt. Sudha Dubey Vs State of U.P. and others.

7- W.P.No.19644 of 2004 Smt. Sarvari Begum Vs State of U.P. and others.

8- W.P.No.19646 of 2004 Smt. Kalindi Devi Vs State of U.P. and others.

9- W.P.No.19647 of 2004 Smt. Sakina Begum Vs State of U.P. and others.

10- W.P.No.19648 of 2004 Smt. Sita Shukla Vs State of U.P. and others.

11- W.P.No.19650 of 2004 Smt. Anju Srivastava Vs State of U.P. and others.

12- W.P.No.19651 of 2004 Smt. Munira Khatoon Vs State of U.P. and others.

Hon'ble Rakesh Tiwari, J.        

Heard counsel for the parties and perused the record.

          A large number of writ petitions have been filed by the employees by the U.P. State Handloom Corporation challenging the validity and correctness of  a   notice of  retrenchment dated 12.4.2004 issued under Section 6 N(a) of the U.P. Industrial Disputes Act, 1947.  The question of law and facts involved in all the writ petitions is the same. The writ petition No. 19640 of 2004 Smt. Saroj Bala Versus State of U.P. and others   is being taken as the leading case.

Background.

          The notice has been challenged on the ground that persons junior to the petitioner(s) are sought to be retained in service whereas the services of the petitioner(s) is sought to be terminated in violation of the provisions of Sections 6N and Section 6P of the U.P. Industrial Disputes Act, 1947,read with   Rule 42 of the U.P. Industrial Disputes Rules, 1957.

        The U.P. State Handloom Corporation Limited was established in the year 1973 by the State Government of U.P. and is a Government (Public) Company under Companies Act 1956.

Due to change in Textile Policy and overall recession in the global economic scenario the Government of India curtailed the subsidy on many of the controlled items drastically affecting the business of the Corporation. The economic   condition of Corporation became critical and it could not pay the salaries of its employees even for  about 3 years. A large number of employees and the Unions of the employees working in the Corporation  therefore, preferred petitions before this Court as well as Lucknow Bench of this Court for payment of their salaries.

         In the aforesaid backdrop the Board of Directors of the Corporation took a policy decision to reorganize the business by curtailment of manpower and for adopting such other steps, which may improve the financial condition of the Corporation.

       

           The proposal for downsizing of the manpower of the Corporation and its rehabilitation was considered. The relevant extract of the decision in rehabilitation decades is as under:-

"It is proposed to downsize its manpower which has been already brought down from 2323 to 1748 to 599 by way of VRS / CRS / Retrenchment . Reduction in manpower will be due to closure of Janata Cloth production activities, closure of unviable showrooms and closure of unproductive uncontrolled Cloth production centers.    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -- - - - - - -- - - - - -- - - - - -- - -- --- - --- - - -- -- ------------ - ----- -- -- - -- -It is further being made clear that on account of the reason that the business of the Corporation is paralysed to the extent that neither there was any work for the employees nor any fund to pay the salary to them and as such the Corporation has taken the decision to curtail manpower firstly by giving VRS and thereafter by way of retrenchment. It is again being made clear that the responsibility of the Corporation was increasing day to day for payment of salaries to its employees without even their working. Since the Corporation was not having sufficient work for all the employees and as such it was decided to curtail the manpower either by way of VRS or retrenchment."

             In order to implement the aforesaid policy decision and rehabilitation package steps to curtail the manpower notices  were issued by the Managing Director of the Corporation informing the employees to adopt the VRS otherwise the Corporation will have to resort to retrenchment.  The efforts to revive the financial health of the Corporation by adopting the VRS failed, as only about 600 employees opted for voluntary retirement. The Corporation then resorted to retrench the employees to bring down the number of employees to required level by giving the notice of retrenchment-dated 12.4.2004. The notice was to became effective w.e.f. 15.4.2004.

            It is submitted by the counsel for the petitioner that the curtailment of manpower with a view to revive and reorganize the corporation, is irrational and opposed to public policy besides being arbitrary and illegal as the retrenchment of employees is in violation of provisions of the U.P. Industrial Disputes Act, 1947. It is further submitted that the   notice has been published in the daily newspaper for making mass-scale retrenchment categorizing employees in different pay-scales for the purposes of applying the principle of ''Last come first go' and that the persons, who do not belong to the category of ''Workmen', have been included in the list, which vitiates the entire procedure of retrenchment. It has also been submitted that the Corporation has not adhered to the policy of ''Last Come First Go' and in fact junior persons are being retained on the basis of incorrect calculation of seniority, which ought to have been calculated from the date of initial entry in service. It  has been submitted that while excluding the seniors much junior persons in the name of reservation have been retained creating a sub category which is not contemplated either  under the provisions of  the U.P. Industrial Disputes Act, 1947  or the Rules framed thereunder. This deviation according to the counsel for the petitioner is illegal and could not have been made.  

           Lastly it is submitted by the counsel for the petitioner that seniority has been wrongly fixed as it is against Rule   29(3). Rule 29(3) provides that inter se seniority of the persons promoted from the lower grade, shall be maintained in the higher grade as well. Thus it is submitted that petitioner is entitled for computation of his seniority from the date he joined in the clerical cadre viz-a-viz others for the purposes of applying the principle of "Last Come First Go". This question does vitiate the notice and has to be considered and decided by the Labour Court on facts.

              The counsel for the petitioner has placed reliance on a G.O. dated 23.1.76, which lays down the guidelines of retrenchment in respect of dependent of an employee dying in harness due to economic measures. The G.O. provides that where retrenchment is to be resorted to due to economic measures, the employee appointed on compassionate ground may be given protection even though he may be a employee junior in his category.

                   Sri S.N. Singh, counsel for the respondents submits that the procedure of retrenchment provided under the Act was strictly followed and there is no illegality or irregularity in the notice for retrenchment dated 12.4.2004, that the present petition is premature, not maintainable and is liable to be dismissed. He further submits that in case any employee is aggrieved by the action of retrenchment he has a   remedy under the Industrial Disputes Act and the petitioner cannot challenge the validity and procedure of retrenchment in writ petition under Article 226 of the Constitution of India.  He also submits that as there is no work available for all the employees in the Corporation nor it has funds to pay salary to them as such Corporation has no other alternative but to reorganize the business by curtailment of manpower by way of retrenchment.

           Reorganization of business by retrenchment is an accepted principle in industrial laws. In so far as question of giving notice to the employees is concerned, he submits that section 6-N of the U.P. Industrial Disputes Act, 1947 only imposes a limitation upon the employer and subjects his power to retrench his workmen, to certain mandatory conditions conferred in clause (a) and (b) of the Section 6N of the Act which must be satisfied before the power can be exercised. Clause (c) of Section 6 N of the Act has been held to be only directory and non-compliance does not render the notice invalid. Relying upon AIR 1958 SC 1012 Macropollo D. & Co. (P) Ltd. Vs. Employer's Union and and 1970 Lab. IC 196, Modren Stores Vs. Krishnadas he has urged that an employer has a right to reorganize his business and if such re-organization results in discharge of some employee, it will not be a ground for inference of   mala fide. He states that as it was not possible to give individual notice and the same was published on the Notice Board as well as in the Newspaper having wide circulation and there was no necessity of giving notice to the State Government separately.

          Sri S.N.Singh has drawn the attention of the Court to clause 2 of The U.P. Handloom Corporation Ltd. (Officers and Staff)  Service Rules, 1981 framed in exercise of powers conferred under Article 127 of the Articles of Association of the Corporation. Rule 2 provides that the rules apply to   all employees of the Corporation except   those covered under Clause 2( iii) of the 1981 Rules who are subject to labour laws. Relevant extract of Rule 2 is as under:

            " (iii) These rules shall not apply to the following categories of employees:

(a) " Employees" "Workers" or persons of any other definite descriptions who are governed by the various industrial and/or labour enactments, such as the U.P.Industrial Disputes Act, the Factories Act, the Employees State Insurance Act, the Industrial Employment Standing Orders) Act, the U.P.Shops and Commercial Establishment Act, and the rules, regulations or standing orders (by whatever name known) framed thereunder:

(b) Part-time workers, daily rated persons, contingent and work-charged employees including casual worker."

        Employee and workmen in the aforesaid Rules have been defined in clause 3(ix) and ( xxiv) which read as under:

          " (ix) " Employees means and includes a person appointed as adviser, officer, ministerial or supervisory staff or designated by any other name whether employed directly by the Corporation or borrowed from any outside source, i.e., by deputation or otherwise.

             (xxiv) " Workmen" means a person as defined in the Uttar Pradesh Industrial Disputes Act, 1947 and to whom these bye-laws do not apply."

            In view of the aforesaid Rules 2(iii) , 3 (ix) and 3 (xxiv) and Rule 29(3) is not attracted for the purpose of seniority in the instant case and has to be determined by the Labour Court in respect of  each category of employee in the various establishments of the Corporation according to the provisions of Section 6(P) of the ID Act, 1947 read with rule 42 of the UPID Rules, 1957.

            As regards G.O. dated 23.1.76, the Apex Court in  (2004) 3 SCC-429 State of Kerla and another Vs. Chandramohanan relying upon  (2003)8  SCC-204 Punit Rai Vs. Dinesh Chaudhary and (2004) 2 SCC-510 Union of India Vs. Naveen Jindal has held that the G.Os. are not the law.                                                                   There is  no distinction between an employee appointed on compassionate ground or on regular/ permanent or Daily wage basis. All the  employees are to be treated equally. It is for the employer to see whether the services of an employee appointed under the Dying in Harness Rules can be protected or not in pursuance of G.O. dated 23.1.76. ''Protection' under the G.O. does not mean that the G.O. which is an administrative guideline can over-ride the law and the Constitutional mandate of equality before law.

               In Rajasthan State Road Transport Corporation and another Vs. Krsihna Kant and others, 1995 (V) SC-75 the apex Court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947. The question whether disputes involving observance, recognition or enforcement of rights and obligation created under the I D Act or its sister enactments such as Payment of Wages Act, Payment of Gratuity Act, Factories Act, Workmen Compensation Act etc. including Industrial Employment (Standing Orders) Act, which do not provide any special adjudicatory forums are  ''industrial dispute' within the meaning of Section 2(k) or Section 2-A of ID Act or that such disputes treated as industrial disputes they shall not  be adjudicated by any other the forum except created by I D Act, i.e.  they shall be adjudicated only by forums created under ID Act.

                In case of   Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke  (1976) 1 SCC-496 the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by the Apex Court in paras 23 and 24 of the judgment which are as under:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

     

  24. We may, however, in relation to Principle no.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No.3 stated above."

       In L.L. Sudhakar Reddy Vs. State of Andhra Pradesh (2001) 6 SCC-634 the Apex Court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.

     Similarly in State of Bihar Vs. Jain Plastics & Chemical Ltd. (2002) 1 SCC-216 the Apex Court has held that existence of alternative remedy would be a good ground for not entertaining writ petition.

In Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549 it has been held that where alternate remedy is available in industrial law , or writ petition would not be maintainable.

          From the aforesaid decisions the law is well settled that the alternative remedy available in industrial courts is more efficacious and speedy. The powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. These forums are empowered to grant such relief as they think just and appropriate. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the Supreme Court and High Court. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created under the Industrial Disputes Act and other labour laws which cannot be by passed and have to be exhausted before approaching the High Court under Article 226 of the Constitution of India. Adjudication of the questions involved in this petition depends on evidence. It is not for this Court to question the propriety of notice or whether the retrenchment is justified or not .The fact that the State Government/Corporation has failed to adjust the employers in some other Corporation is also irrelevant for deciding the legality of notice of retrenchment. The question whether the compliance of provisions of Section 6N of the Act have been made whether  it is malafide or bonafide or  the reasons given by the employer to retrench some of the employees or retaining  persons alleged to be  junior in a particular category of workmen  are all questions  which can   be decided only  on the basis of documentary and oral evidence adduced   by the parties before the Labour Court or the Industrial Tribunal and not before the High Court under Article 226 of the Constitution of India. The Apex Court in a catena of decisions has held that it is not within the realm of the High Court under Article 226 of the Constitution of India to adjudicate such questions of facts. Questions raised in these petitions require adjudication on facts, which cannot be gone into by this Court under Article 226 of the Constitution of India. Mere notice to retrench cannot be challenged. In any case as follow up action can be challenged by the aggrieved persons before the Labour Court/ Industrial Tribunal.

For these reasons, this Court is not inclined to interfere in these matters as the petitioner has an efficacious and alternative remedy available to him.

The writ petition is therefore, dismissed on the ground of alternative remedy. No order as to cost.

Dated: 29.7.2004

CPP/

                                                                            Court No. 7

Civil Misc Writ Petition No.19640 of 2004

                 Smt. Saroj Bala              Vs.              State of U.P. and others          

Connected with

1- W.P.No.26119 of 2004 Nazir Ahmad Vs State of U.P. and others.

2- W.P.No.19636 of 2004 P.K.Yadav Vs State of U.P. and others.

3- W.P.No.19637 of 2004 Samina Khatoon Vs State of U.P. and others.

4- W.P.No.19638 of 2004 Raj Kumar Vs State of U.P. and others.

5- W.P.No.19641 of 2004 Smt. Vasundhara Pandey Vs State of U.P. & others.

6- W.P.No.19643 of 2004 Smt. Sudha Dubey Vs State of U.P. and others.

7- W.P.No.19644 of 2004 Smt. Sarvari Begum Vs State of U.P. and others.

8- W.P.No.19646 of 2004 Smt. Kalindi Devi Vs State of U.P. and others.

9- W.P.No.19647 of 2004 Smt. Sakina Begum Vs State of U.P. and others.

10- W.P.No.19648 of 2004 Smt. Sita Shukla Vs State of U.P. and others.

11- W.P.No.19650 of 2004 Smt. Anju Srivastava Vs State of U.P. and others.

12- W.P.No.19651 of 2004 Smt. Munira Khatoon Vs State of U.P. and others.

Hon'ble Rakesh Tiwari, J.        

Heard counsel for the parties and perused the record.

          A large number of writ petitions have been filed by the employees by the U.P. State Handloom Corporation challenging the validity and correctness of  a   notice of  retrenchment dated 12.4.2004 issued under Section 6 N(a) of the U.P. Industrial Disputes Act, 1947.  The question of law and facts involved in all the writ petitions is the same. The writ petition No. 19640 of 2004 Smt. Saroj Bala Versus State of U.P. and others   is being taken as the leading case.

Background.

          The notice has been challenged on the ground that persons junior to the petitioner(s) are sought to be retained in service whereas the services of the petitioner(s) is sought to be terminated in violation of the provisions of Sections 6N and Section 6P of the U.P. Industrial Disputes Act, 1947,read with   Rule 42 of the U.P. Industrial Disputes Rules, 1957.

        The U.P. State Handloom Corporation Limited was established in the year 1973 by the State Government of U.P. and is a Government (Public) Company under Companies Act 1956.

Due to change in Textile Policy and overall recession in the global economic scenario the Government of India curtailed the subsidy on many of the controlled items drastically affecting the business of the Corporation. The economic   condition of Corporation became critical and it could not pay the salaries of its employees even for  about 3 years. A large number of employees and the Unions of the employees working in the Corporation  therefore, preferred petitions before this Court as well as Lucknow Bench of this Court for payment of their salaries.

         In the aforesaid backdrop the Board of Directors of the Corporation took a policy decision to reorganize the business by curtailment of manpower and for adopting such other steps, which may improve the financial condition of the Corporation.

       

           The proposal for downsizing of the manpower of the Corporation and its rehabilitation was considered. The relevant extract of the decision in rehabilitation decades is as under:-

"It is proposed to downsize its manpower which has been already brought down from 2323 to 1748 to 599 by way of VRS / CRS / Retrenchment . Reduction in manpower will be due to closure of Janata Cloth production activities, closure of unviable showrooms and closure of unproductive uncontrolled Cloth production centers.    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - -- - - - - - -- - - - - -- - - - - -- - -- --- - --- - - -- -- ------------ - ----- -- -- - -- -It is further being made clear that on account of the reason that the business of the Corporation is paralysed to the extent that neither there was any work for the employees nor any fund to pay the salary to them and as such the Corporation has taken the decision to curtail manpower firstly by giving VRS and thereafter by way of retrenchment. It is again being made clear that the responsibility of the Corporation was increasing day to day for payment of salaries to its employees without even their working. Since the Corporation was not having sufficient work for all the employees and as such it was decided to curtail the manpower either by way of VRS or retrenchment."

             In order to implement the aforesaid policy decision and rehabilitation package steps to curtail the manpower notices  were issued by the Managing Director of the Corporation informing the employees to adopt the VRS otherwise the Corporation will have to resort to retrenchment.  The efforts to revive the financial health of the Corporation by adopting the VRS failed, as only about 600 employees opted for voluntary retirement. The Corporation then resorted to retrench the employees to bring down the number of employees to required level by giving the notice of retrenchment-dated 12.4.2004. The notice was to became effective w.e.f. 15.4.2004.

            It is submitted by the counsel for the petitioner that the curtailment of manpower with a view to revive and reorganize the corporation, is irrational and opposed to public policy besides being arbitrary and illegal as the retrenchment of employees is in violation of provisions of the U.P. Industrial Disputes Act, 1947. It is further submitted that the   notice has been published in the daily newspaper for making mass-scale retrenchment categorizing employees in different pay-scales for the purposes of applying the principle of ''Last come first go' and that the persons, who do not belong to the category of ''Workmen', have been included in the list, which vitiates the entire procedure of retrenchment. It has also been submitted that the Corporation has not adhered to the policy of ''Last Come First Go' and in fact junior persons are being retained on the basis of incorrect calculation of seniority, which ought to have been calculated from the date of initial entry in service. It  has been submitted that while excluding the seniors much junior persons in the name of reservation have been retained creating a sub category which is not contemplated either  under the provisions of  the U.P. Industrial Disputes Act, 1947  or the Rules framed thereunder. This deviation according to the counsel for the petitioner is illegal and could not have been made.  

           Lastly it is submitted by the counsel for the petitioner that seniority has been wrongly fixed as it is against Rule   29(3). Rule 29(3) provides that inter se seniority of the persons promoted from the lower grade, shall be maintained in the higher grade as well. Thus it is submitted that petitioner is entitled for computation of his seniority from the date he joined in the clerical cadre viz-a-viz others for the purposes of applying the principle of "Last Come First Go". This question does vitiate the notice and has to be considered and decided by the Labour Court on facts.

              The counsel for the petitioner has placed reliance on a G.O. dated 23.1.76, which lays down the guidelines of retrenchment in respect of dependent of an employee dying in harness due to economic measures. The G.O. provides that where retrenchment is to be resorted to due to economic measures, the employee appointed on compassionate ground may be given protection even though he may be a employee junior in his category.

                   Sri S.N. Singh, counsel for the respondents submits that the procedure of retrenchment provided under the Act was strictly followed and there is no illegality or irregularity in the notice for retrenchment dated 12.4.2004, that the present petition is premature, not maintainable and is liable to be dismissed. He further submits that in case any employee is aggrieved by the action of retrenchment he has a   remedy under the Industrial Disputes Act and the petitioner cannot challenge the validity and procedure of retrenchment in writ petition under Article 226 of the Constitution of India.  He also submits that as there is no work available for all the employees in the Corporation nor it has funds to pay salary to them as such Corporation has no other alternative but to reorganize the business by curtailment of manpower by way of retrenchment.

           Reorganization of business by retrenchment is an accepted principle in industrial laws. In so far as question of giving notice to the employees is concerned, he submits that section 6-N of the U.P. Industrial Disputes Act, 1947 only imposes a limitation upon the employer and subjects his power to retrench his workmen, to certain mandatory conditions conferred in clause (a) and (b) of the Section 6N of the Act which must be satisfied before the power can be exercised. Clause (c) of Section 6 N of the Act has been held to be only directory and non-compliance does not render the notice invalid. Relying upon AIR 1958 SC 1012 Macropollo D. & Co. (P) Ltd. Vs. Employer's Union and and 1970 Lab. IC 196, Modren Stores Vs. Krishnadas he has urged that an employer has a right to reorganize his business and if such re-organization results in discharge of some employee, it will not be a ground for inference of   mala fide. He states that as it was not possible to give individual notice and the same was published on the Notice Board as well as in the Newspaper having wide circulation and there was no necessity of giving notice to the State Government separately.

          Sri S.N.Singh has drawn the attention of the Court to clause 2 of The U.P. Handloom Corporation Ltd. (Officers and Staff)  Service Rules, 1981 framed in exercise of powers conferred under Article 127 of the Articles of Association of the Corporation. Rule 2 provides that the rules apply to   all employees of the Corporation except   those covered under Clause 2( iii) of the 1981 Rules who are subject to labour laws. Relevant extract of Rule 2 is as under:

            " (iii) These rules shall not apply to the following categories of employees:

(a) " Employees" "Workers" or persons of any other definite descriptions who are governed by the various industrial and/or labour enactments, such as the U.P.Industrial Disputes Act, the Factories Act, the Employees State Insurance Act, the Industrial Employment Standing Orders) Act, the U.P.Shops and Commercial Establishment Act, and the rules, regulations or standing orders (by whatever name known) framed thereunder:

(b) Part-time workers, daily rated persons, contingent and work-charged employees including casual worker."

        Employee and workmen in the aforesaid Rules have been defined in clause 3(ix) and ( xxiv) which read as under:

          " (ix) " Employees means and includes a person appointed as adviser, officer, ministerial or supervisory staff or designated by any other name whether employed directly by the Corporation or borrowed from any outside source, i.e., by deputation or otherwise.

             (xxiv) " Workmen" means a person as defined in the Uttar Pradesh Industrial Disputes Act, 1947 and to whom these bye-laws do not apply."

            In view of the aforesaid Rules 2(iii) , 3 (ix) and 3 (xxiv) and Rule 29(3) is not attracted for the purpose of seniority in the instant case and has to be determined by the Labour Court in respect of  each category of employee in the various establishments of the Corporation according to the provisions of Section 6(P) of the ID Act, 1947 read with rule 42 of the UPID Rules, 1957.

            As regards G.O. dated 23.1.76, the Apex Court in  (2004) 3 SCC-429 State of Kerla and another Vs. Chandramohanan relying upon  (2003)8  SCC-204 Punit Rai Vs. Dinesh Chaudhary and (2004) 2 SCC-510 Union of India Vs. Naveen Jindal has held that the G.Os. are not the law.                                                                   There is  no distinction between an employee appointed on compassionate ground or on regular/ permanent or Daily wage basis. All the  employees are to be treated equally. It is for the employer to see whether the services of an employee appointed under the Dying in Harness Rules can be protected or not in pursuance of G.O. dated 23.1.76. ''Protection' under the G.O. does not mean that the G.O. which is an administrative guideline can over-ride the law and the Constitutional mandate of equality before law.

               In Rajasthan State Road Transport Corporation and another Vs. Krsihna Kant and others, 1995 (V) SC-75 the apex Court has laid down the principles in respect of alternative remedy under the Industrial Disputes Act, 1947. The question whether disputes involving observance, recognition or enforcement of rights and obligation created under the I D Act or its sister enactments such as Payment of Wages Act, Payment of Gratuity Act, Factories Act, Workmen Compensation Act etc. including Industrial Employment (Standing Orders) Act, which do not provide any special adjudicatory forums are  ''industrial dispute' within the meaning of Section 2(k) or Section 2-A of ID Act or that such disputes treated as industrial disputes they shall not  be adjudicated by any other the forum except created by I D Act, i.e.  they shall be adjudicated only by forums created under ID Act.

                In case of   Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke  (1976) 1 SCC-496 the principles of alternative remedy, in so far as the dispute falling under the industrial adjudication are concerned, have been laid down by the Apex Court in paras 23 and 24 of the judgment which are as under:

"23. To sum up, the principles applicable to the jurisdiction of the civil court in relation to an industrial dispute may be stated thus:

(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the civil court.

(2) If the dispute is an industrial dispute arising out of a right or liability under the general or common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief, which is competent to be granted in a particular remedy.

(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.

(4) If the right, which is sought to be enforced, is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.

     

  24. We may, however, in relation to Principle no.2 stated above hasten to add that there will hardly be a dispute which will be an industrial dispute within the meaning of Section 2(k) of the Act and yet will be one arising out of a right or liability under the general or common law only and not under the Act. Such a contingency, for example, may arise in regard to the dismissal of an unsponsored workman which in view of the provision of law contained in Section 2-A of the Act will be an industrial dispute even though it may otherwise be an individual dispute, therefore, will have hardly an occasion to deal with the type of cases falling under Principle No.2. Cases of industrial disputes by and large, almost invariably, are bound to be covered by Principle No.3 stated above."

       In L.L. Sudhakar Reddy Vs. State of Andhra Pradesh (2001) 6 SCC-634 the Apex Court has held that the Courts or Tribunals having exclusive jurisdiction in certain matters, such remedy must be exhausted before intervention by High Court under Article 226 of the Constitution of India.

     Similarly in State of Bihar Vs. Jain Plastics & Chemical Ltd. (2002) 1 SCC-216 the Apex Court has held that existence of alternative remedy would be a good ground for not entertaining writ petition.

     In Scooters India Vs. V. Vijai E.V. Eldred (1998) 6 SCC-549 it has been held that where alternate remedy is available in industrial law , or writ petition would not be maintainable.

          From the aforesaid decisions the law is well settled that the alternative remedy available in industrial courts is more efficacious and speedy. The powers of the courts and tribunals under the Industrial Disputes Act are far more extensive in the sense that they can grant such relief as they think appropriate in the circumstances for putting an end to an industrial dispute. These forums are empowered to grant such relief as they think just and appropriate. They can make and re-make the contracts, settlement, wage structures and what not. Their awards are no doubt amenable to jurisdiction of the Supreme Court and High Court. It is, therefore, always in the interest of the workmen that disputes concerning them are adjudicated in the forums created under the Industrial Disputes Act and other labour laws which cannot be by passed and have to be exhausted before approaching the High Court under Article 226 of the Constitution of India. Adjudication of the questions involved in this petition depends on evidence. It is not for this Court to question the propriety of notice or whether the retrenchment is justified or not .The fact that the State Government/Corporation has failed to adjust the employers in some other Corporation is also irrelevant for deciding the legality of notice of retrenchment. The question whether the compliance of provisions of Section 6N of the Act have been made whether  it is malafide or bonafide or  the reasons given by the employer to retrench some of the employees or retaining  persons alleged to be  junior in a particular category of workmen  are all questions  which can   be decided only  on the basis of documentary and oral evidence adduced   by the parties before the Labour Court or the Industrial Tribunal and not before the High Court under Article 226 of the Constitution of India. The Apex Court in a catena of decisions has held that it is not within the realm of the High Court under Article 226 of the Constitution of India to adjudicate such questions of facts. Questions raised in these petitions require adjudication on facts, which cannot be gone into by this Court under Article 226 of the Constitution of India. Mere notice to retrench cannot be challenged. In any case as follow up action can be challenged by the aggrieved persons before the Labour Court/ Industrial Tribunal.

For these reasons, this Court is not inclined to interfere in these matters as the petitioner has an efficacious and alternative remedy available to him.

The writ petition is therefore, dismissed on the ground of alternative remedy. No order as to cost.

Dated: 29.7.2004

CPP/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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