DIVISIONAL ENGINEER HEAD QUARTERS Vs. DURGESH KUMAR

JUDGEMENT

(1.) THESE two special appeals have been heard together as they raise a common question of law : whether, a retrenched "workman" claiming re-instatement and continuity of service for non-compliance with the requirements of section 25-F of the Idustrial Disputes Act, 1947 (to be hereinafter referred as the Act) by an industrial employer and who invokes the jurisdiction of the High Court without exhausting the remedy available under the Act, is entitled to a high prerogative writ, under Article 226 of the Constitution. Or does the Act prescribe an adequate alternative remedy, leaving it to the discretion of the High Court to refuse the writ where an aggrieved workman has not taken recourse to such remedy.

(2.) IN Writ Petition No. 683 of 1974 (giving rise to Special Appeal No. 29 of 1975) Durgesh Kumar, who had completed more than three year's service as an 'unskilled staff" in the Railway Workshop, challenged the order terminating his services, made in purported exercise of the power under Rule 149 of the INdian Railway Establishment Code, Volume I, on the ground that, in substance, it being 'retrenchment' within the meaning of sec. 2(oo) of the Act and the Railway Administration having not fulfilled the conditions postulated by Sec. 25-F, he was entitled to continue in service and to the accrued salaries and allowances. The Railway Administration contested the claim, taking also the plea that the petitioner was not entitled to the relief under Article 226 which he could obtain by invoking the machinery under the Act. The learned single Judge upon a scrutiny of the affidavits exchanged between the parties held that the petitioner being a 'workman' and the Railway Establishment an 'industry' with in the meaning of the Act since no retrenchment compensation was paid to the petitioner, the termination order was invalid. The plea of alternative remedy being available under the Act was repelled on the ground that on the mere possibility that some other remedy was available to the petitioner, the Court under Article 226 ought not to drive him out of Court. IN the result, the impugned order was quashed and the petitioner was declared to have continued in the service of the Railway Administration.

(3.) THE principle is well settled that the Courts will not interfere by an extra ordinary remedy where complete satisfaction can be had by an action. Regarding issue of mandamus, the law has been summed up in Halsbury's Laws of England, IIIrd Edition, Volume II, at page 107, para-200, in these words : "THE Court will, as a general rule and in exercise of its discretion, refuse an order of manadmus when there is an alternative specific remedy at law, which is not less convenient, beneficial and effective". THE rule requiring the exhaustion of statutory remedies before a writ is granted is, however, a rule of policy, convenience and discretion rather than a rule of law. In a case where the petitioner complains of violation of the fundamental right, or, where the act complained of is without the authority of law; where the alternative remedy is authorised by law which is ultra vires; where the act complained of is without jurisdicition; where some mandatory provision of the Constitution has been violated, or where the alternative remedy is not adequate, a writ is issued inspite of the fact that the aggrieved party has had other legal remedy. THE question which, therefore, falls for our consideration is, whether on the facts and in the circumstances of the instant, the Act affords to the petitioners an adequate remedy and that brings us to the relevant provisions of the Act. Obviously, within none of the other exceptions the case at hand falls.