RAJAB ALI MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This writ petition is made by one driver and conductor of a bus No. WB/25A/0908 plying in the bus route No. 211 from two parts of the city of Calcutta (Kolkata). Petitioners are earning their livelihood by plying such bus regularly for last six years. On 2nd August, 2004 one political party called 'Bandh'. The petitioners wanted to resume their respective duties on the day of 'Bandh' when the respondent owner refused to allow them to ply the bus on the ground that in case of casualty no compensation will be given by the respective Insurance Company since according to them 'Bandh' is illegal. However, after causing certain repairing works they placed the bus on the route on 4th August, 2004 when the concerned Registered Trade Union through their leader restrained them from plying the same. According to them, they should not be deployed in the duty for violation of their dictate on the 'Bandh' day. They further recommended other driver and conductor for the purpose of rendering the service of the bus. The owner of the vehicle refused them to allow the bus to run. A police complaint was made by him but no action had been taken by the police as against the Trade Union activists. Then the writ jurisdiction of this High Court was invoked. According to the petitioners, they invoked writ jurisdiction of the High Court taking motor vehicles matters when it was advised that the dispute cannot fall under such category. Again they tried to invoke Writ Bench of this High Court taking miscellaneous matters when it was advised that the dispute falls under the category of labour and industrial dispute. Hence, according to them, this is the proper Bench for adjudication of the matter. This Court at first applied its mind towards the allocation of business of this Bench to find out whether this Bench is appropriate or not for the purpose of entertaining the application. Under the Rules of the High Court at Calcutta relating to the applications under Article 226 of the Constitution I find that the dispute effectively falls under the category of labour and industrial legislation. Although police has been informed for taking appropriate steps but the grievance is against the registered trade union i.e. one of the respondents herein, for their illegal and/or wrongful restrain to the petitioners in discharging their duties in violation of Article 19(1)(g) of the Constitution of India. Article 21 of the Constitution of India also says no person shall be deprived of his life and personal liberty except according to procedure established by law. The union says that it has been done to discipline the petitioners. They have every right to do so. The State appeared through the Secretary of the Labour Department and contended that firstly alternative forum is available for the purpose of redressal of grievance. Secondly it is not a labour dispute. The State and the union, in chorus, contended that no industrial dispute lies in between the owner of the vehicle and the petitioners since no employer- employee relationship exists in between themselves. Normally there is no fixed driver pr conductor of a bus. They are working by rotation. The owners have their own association when the employees have their own union. Owners' association is known as a syndicate. Virtually this dispute is in the nature of a police in action. Neither there is any grievance against the owner nor against the union.

(2.) I have my reservation in accepting such submission. Grievance against the union is very much there. The union is not keen to test the situation whether any alternative remedy available against the petitioners or not. They have affirmatively said in merit that by virtue of the Trade Union Act a registered trade union has every right to make the members disciplined and by doing so they have not committed any mistake. Therefore, only on the high hope of the learned Counsel for the State, the grievance of the writ petitioners can not be ignored particularly when infringement of public law element is available. In AIR 1999 SC 753 (U.P. State Co-operative Land Development Bank Ltd, vs. Chandra Bhan Dubey & Ors.) the Supreme Court categorically held that it may not be necessary to examine any further the question if Article 226 makes a division between public law and private law. Prima facie from the language of the Article 226 there does not appear to exist such a division. To understand the explicit language of the Article it is not necessary to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does not appear that Article 226 while empowering the High Court for issue of orders or directions to any authority or person does not make any such difference between public functions and private functions. It is not necessary to go into the question as to what is the nature, scope and amplitude of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including in appropriate cases, any Government. 'Person' under section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. Constitution is not a statute. It is fountain head of all the statutes. When the language of Article 226 is clear, Supreme Court cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, the Supreme Court has laid down certain guidelines and self-imposed limitations have been put there subject to the High Courts would exercise jurisdiction,'but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available and where there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of the jurisdiction under Article 226.

(3.) Under section 18 of the Trade Union Act, 1926 no suit or other legal proceeding shall be maintainable either against it or against the office bearers or members. In the contemplation of trade dispute a Trade Union can not interfere with the livelihood of its members. It is applicable both towards organised sectors and non-organised sectors. It is to be remembered people connected with the non-organised sectors are mostly suffered by the callers of 'Bandh'. Under Article 19(1)(g) meaning of rendering service also applicable to practise any professions, or to carry on any occupation, trade or business. Those cannot be wrongly interfered with. This is not a question of 'Bandh' but a question of suffering out of 'Bandh'. In further no criminal action has been provided under the Act to be taken against office bearer of a registered Trade Union in case of disallowing its member from discharging his duty. Therefore, neither any civil action nor any criminal action can be taken against the registered Trade Union and/or its office bearers in spite of their nature of duty. On the otherhand, police is a silent spectator of the complaint.