JAGBIR SINGH Vs. BABA BALAK NATH TRUST

JUDGEMENT

(1.) The above writ petitions may be dealt with together since they relate to indenticai subject-matter and also deal with indentical issues raised. As a matter of fact, Mr. Inder Singh, learned Counsel made elaborate leading arguments in CWP No. 822/98 and the learned Counsel in CWP No. 824/98 adopted the said submissions. For appreciating the submissions of the learned Counsel, the factual details noticed in CWP No. 822/98 may be adverted to. The petitioners in this writ petition are about 37 and they filed the writ petition seeking for the issue of a writ in the nature of mandamus not to terminate/retrench the petitioners from the services of respondent No. 1, which they were said to be rendering under the 1st respondent, by name, Baba Balak Nath Temple Trust in various capacities. The cause and need for filing the above writ petitions arose on account of the notices issued by the 2nd respondent invoking the powers under Section 25-F of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') dispensing with the services of the respective petitioners on the ground that there is no work against which they can be deployed for work on daily wages and that by adopting the principle of last come first go, they were being retrenched and the required notice and compensation is being paid to them. Along with the notices, as we could find, the necessary cheque for the amounts specified in the individual notices is also enclosed. Having regard to the nature of disposal we intend to give these writ petitions, it is unnecessary for us to delve at length to the details of the controversy or disputes between the parties except noticing the salient features for the limited purpose the appreciating the submissions made by the learned Counsel.

(2.) Some of the petitioners and others have earlier approached this Court with a batch of writ petitions, which came to be dealt with and disposed of in CWP No. 294/98 and CWP No. 270/98 etc. Some of the facts, which found noticed in the said writ petition can be noticed again. There was no dispute between the parties that the petitioners and others were engaged as daily waged workers by the 2nd respondent-trust and many of them with the exception of a few had completed 240 days in a year before their dis-engagement was said to have been effected orally without giving any notice of compensation. It is at that stage the earlier writ petitions came to, be filed contending that the dis-engagement effected orally without giving notice or compensation, constituted retrenchment within the meaning of Clause (oo) of Section 2 of the Industrial Disputes Act and that the mandatory procedure laid down in Section 25-F of the Act has not been followed and, therefore, the dis-engagement effected was bad in law. The trust appears to have contested the claim of the. workers and on the basis of the controversy raised by the parties before a Division Bench, which rendered its decision on 1.9.1998, it was held that the 2nd respondent would answer the description of an "Industry" for the purpose of the Act. The Division Bench also rejected the stand taken by the trust about the existence of an alternative remedy operating as a disabling factor to invoke the juridiction of this Court under Article 226 of the Constitution of India and in dealing with the same, it was held that the decision relied upon in this regard does not lay down any absolute rule of law that whenever or wherever and alternative remedy is available, be it by way of industrial adjudication too, the High Court has to decline to entertain a litigation and observed further that it is always a matter of discretion, based on the facts and circumstances of each case. In the teeth of such conclusion arrived at by the Division Bench on the earlier occasion, the ultimate decision taken and the directions issued and the relief granted to the petitioners before this Court were as follows : "14. Applying these principles to the cases in hand we are of the view that it will not be fair and just to relegate the petitioners to seek reference under Section 10 of the Act in view of our findings that the Trust is an 'industry' and the petitioners are 'workmen', who are admittedly retrenched withhout giving notice and compensation as provided under Section 25-F of the Act. Had these facts been disputed, we would have not entertained their claim in exercise of extraordinary jurisdiction under Article 226 of the Constitution. Therefore, we hold in answer to point No. 2 that in the facts and circumstances on record these writ petitions are maintainable. 15. In view of our findings on points No. 1 and 2, we need not decide point No. 3. So far the stand of the Trust that it does not have any work available to continue engaging the petitioners is concerned, we are of the view that in such eventually also, the Trust was required to retrench the petitioners by following the provisions of Section 25-F of the Act. In this view of the matter, the disengagement of the petitioners as daily wage workers, except those who have not completed 240 days, is not sustainable in law. 16. The result of the above discussion is that there is merit in the writ petitions and these are allowed, and the dis-en-gagement of the petitioners as daily wage workers by the Trust, except those who have not completed 240 days, is set aside, with the result the petitioners, except those who have not completed 240 days, continue to be in the employment of the Trust as daily wage workers with all consequential benefits till they are disengaged in accordance with law". Thereupon, the 2nd respondent appears to have issued notices under Section 25-F of the Act, as noticed earlier, and this necessitated the filing of the present writ petitions.

(3.) Mr. Inder Singn, learned Counsel appearing for the petitioners on our request to convince us of the justification to maintain the present writ petitions without availing of the remedies available under the Act itself in respect of any of the alleged grievances arising out of the impugned notices issued under Section 25-F of the Act forcefully submitted that the remedy to seek for a Reference under Section 10 of the Act for adjudication of the disputes between the parties cannot be said to be an effective and efficacious remedy since according to the learned Counsel, the question of Reference always depended upon the discretion of the Government and it is not as though the worker as suchh can on his own and that he has a right to seek for an adjudication, straightaway and consequently this Court may not be pleased to reject the writ petition at the threshold declining to entertain the writ petition on the ground of availability of remedies under the Industrial Law. In support of the said stand taken for the petitioners, the learned Counsel placed strong reliance upon the decisions reported in Fertilizer Corporation of India v. Hindustan Fertilizer Corpo ration Ltd. and another; Jai Bhagwan v. Management of the Ambala Centra! Co-operative Bank Ltd. and another; Assistant Personnel Officer, S. Rly. Olvakkot v. K.T. Anthony, and John Fernandez and another v. Executive Engineer, P.H. Division Alleppey and another. Argued the learned Counsel further that the subject-matter, since involved mass retrenchment, the writ petitions have to be entertained and considered and need not be thrown out at this stage.