RAM SINGER Vs. UNION OF INDIA UOI

JUDGEMENT

(1.) THE petitioners in these four connected writ petitions have been working as Khalasis in the North-Eastern Railway and were posted at Signal and Tele-Communication at Gorakhpur, which is under the Varanasi Division. They claim that they had been appointed as casual Khalasis on permanent posts, had been continuously, without any break in service, working as such and had acquired the status of "temporary employees". They assert that by virtue of their continuous service for the requisite period, they had become entitled to all the rights, privileges and benefits admissible to temporary railway servants and to absorption in the service of the Railways in a substantive capacity. Each one of the petitioners received notices purporting to be under Rule 149 (6) of the Indian Railway Establishment Code, Vol. I--hereinafter referred to as the Code--read with Section 25f (a) and (b) of the Industrial Disputes Act, 1947-hereinafter called the Act--terminating their services with effect from a specified date. The notices further directed that retrenchment compensation was to be paid to the petitioners by the date mentioned therein. It is alleged that a large number of Khalasis who were junior to the petitioners are still working in the Divisional Signal and Tele-Communication Engineering Micro Wave, Gorakhpur, They further allege that similarly Khalasis who are junior to them are continuing to work under the D. S. T. E. /c. T. C. , Gorakhpur. It is averred in the petitions that in spite of the petitioners' request to the authorities concerned that their services could be terminated by way of retrenchment only if they were found to be junior most in the entire division, their request had not been acceded to by the Divisional Superintendent, Varanasi. In each of the petitions the petitioners have challenged the legality of the notices terminating their services. It had been asserted that the petitioners have got no other alternative remedy except to approach this Court under Article 226 of the Constitution. The impugned notices have been assailed on the grounds that they are in violation of the provisions of Section 25f of the Act and the Rules framed thereunder, firstly, because the notices do not contain reasons as required by the above-mentioned provision of the Act and secondly, because retrenchment compensation as provided for in Section 25f has not been paid.

(2.) DURING the hearing of the writ petitions, however, learned Counsel for the petitioners challenged the legality of the impugned notices only on the ground that reasons have not been assigned therein as required by Section 25f of the Act.

(3.) ON behalf of the respondents, a preliminary objection has been taken to the maintainability of these petitions on the ground that the petitioners have an alternative remedy by way of raising an industrial dispute under Section 10 (1) of the Act and consequently these petitions are not maintainable in view of Clause (3) of Article 226 of the Constitution as amended by the 42nd Constitution (Amendment) Act. In support of the contention, learned Counsel representing the respondents has placed reliance on a Division Bench decision of this Court in the Divisional Engineer, Headquarters, Northern Railway, Lucknow v. Durgesh Kumar (Special Appeal No. 29 of 1975 reported in 1976 All W. C. 617, connected with Special Appeal No. 58 of 1975, decided by Satish Chandra, J. (as he then was) and Prem Prakash, J. on 27th April, 1976 ). In Writ Petition No. 683 of 1974 (giving rise to Special Appeal No. 29 of 1975), the writ-petitioner Durgesh Kumar, who had completed more than three years' 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 Code read with Section 25f of the Act on the ground that, in substance, it being "retrenchment" within the meaning of Section 2 (oo) of the Act and the Railway Administration having not fulfilled the conditions postulated by Section 25f, he was entitled to continue in service and to the accrued salaries and allowances. The Railway Administration contested the claim taking, inter alia, the plea that the petitioner was not entitled to the relief under Article 226 of the Constitution which he could obtain by invoking the machinery under the Act. The learned single Judge, who decided the writ petition, upon a scrutiny of the affidavits exchanged between the parties, held that the petitioner being a "workman" and the Railway Establishment an "industry" within the meaning of the Act, since no retrenchment compensation had been paid to the petitioner, the order terminating his services 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 learned single Judge quashed the impugned order and the petitioner was declared to have continued in the service of the Railway Administration. The Divisional Engineer, Northern Railway, appealed against the decision of the learned single Judge and in the special appeal it was contended on behalf of the Railway Administration that since the dispute raised by the petitioner was an "industrial dispute" it was to be settled by the machinery provided for by the Act and, therefore, the petitioner should be required to pursue that remedy and not allowed to invoke the special jurisdiction of the High Court under Article 226 of the Constitution to issue a high prerogative writ. Learned Counsel for the respondent in the special appeal, on the other hand, urged that there being infraction of a legal right by the employers' non-fulfilment of the conditions under Section 25f of the Act, and, at any rate, the remedy under the Act being not convenient and efficacious, and the High Court having admitted the petitions for hearing and issued the rule, recourse to exhaustion of the remedies under the Act should not be insisted upon in the case. The Division Bench hearing the special appeal, after a review of certain decisions of the Supreme Court as well as the English Courts, held that since the right sought to be enforced by the petitioner was a right created under the Act, the remedy for its enforcement is by way of raising an Industrial Dispute which the appropriate Government had the power to refer under Section 10 (1) of the Act to the Labour Court or the Tribunal, as the case might be. Since in the view of the Division Bench the petitioner had an equally efficacious alternative remedy available to him under the Act, its disagreeing with the learned single Judge allowed the Special Appeal and dismissed the writ petition giving rise to the appeal.