INDU Vs. MUNICIPAL COUNCIL JODHPUR

JUDGEMENT

(1.) IN the aforesaid two petitions, a reference has been made by the learned Single Judge for constituting a larger bench to decide the following questions framed by the learned Single Judge in S. B. Civil Writ Petition no. 1606/86 Smt. INdu Vs. Municipal Council, & anr. The question referred to the larger bench reads as under:- "whether disputes arising out of the Chapter V-A, V-B and V-C of the INdustrial Disputes Act which almost cover all the disputes arising out of Section 25 A to 25u of the INdustrial Disputes (Central) Rules can be directly entertained by this court u/art. 226 of the Constitution and if so, under what conditions, or whether such disputes being industrial disputes u/s 10 r/w Sec. ll-A of the INdustrial Disputes Act of 1947 should be first heard and decided by the INdustrial/labour Tribunals and thereafter if relief is not granted to the party by the appropriate forum then only, it should be allowed to come u/art. 226 of the Constitution of INdia before this Court. Alternatively :- To put it differently, whether the reference of a dispute u/s 10 r/w Sec. 11 of the I. D. Act as regards the disputes mentioned in chapter V-A V-B and V-C of the I-D Act read with Rule 77 and 78 of INdustrial Disputes (Central) Rules, offer an alternate, adequate and effective remedy which must normally be availed by the petitioners before they come to this Court directly u/art. 226 of the Constitution. " And in the case of Sunil Kumar Sharma Vs. Pali Central Cooperative Bank Ltd. (S. B. Civil Writ Petition No. 4408/1989) the following questions have been referred by the learned Single Judge to the larger bench:- " (1) Whether a reference by the appropriate Govt. to the appropriate Tribunal for violation of the provisions of Chapter V-A, V-B and V-C of the INdustrial Disputes Act read with rr. 77 and 78 of the INdustrial Disputes (Central) Rules can be considered to be an alternative-efficacious remedy and, therefore, a writ petition directly filed before this Court under Art. 26 of the Constitution without getting that matter referred to and decided by the appropriate Tribunal should not normally be entertained? (2) Whether as per s. 25-B (2) of the Act, an employee/workman has a right to choose his own date of termination with reference to which the calculation is to be made, without reference to the actual date of termination (or to put it differently), whether the date with reference to which calculation is to be made is to be held as the actual date of termination and not any other date prior to that date on which he might have completed 240 days of uninterrupted or interrupted service within the period of 12 calender months as per s. 25-B of the INdustrial Disputes Act counting those 12 months backward from that alleged date of termination? (3) If question No. 2 is answered in favour of the petitioner that he has a right to choose any date on which he has completed 240 days of service as the date of his termination from service then whether the interrupted service rendered by him thereafter has to be treated as uninterrupted service till the date of actual termination. Whether such a deeming fiction can be read into s. 25-B (l) and (2) of the INdustrial Disputes Act keeping in view the aims and objects of the INdustrial Disputes Act with special reference to the-provisions of ss. 2 (oo), (bb), 2 (j), 2 (s) and 25-F of the Act. (4) Whether the provision 'cessation of work which is not due to any fault on the part of the workman'as provided in s. 25 (1) of the Act can be interpreted to mean interruption caused by employer by not offering work to the employee or it only covers cases where the entire work of an industrial establishment or its particular wing is brought to a halt on account of certain circumstances. "

(2.) THE basic question which comes up for determination in these re-ferences is whether a writ petition can directly be maintained for violation of the provisions of Chapters V-A, V-B and V-C of the Industrial Disputes Act, 1947 and Rules 77 and 78 of the Industrial Disputes (Central) Rules without first availing the statutory, remedy provided under the Industrial Disputes Act.

(3.) THE learned Single Judge who has made these references has catalogued a series of judgments cited before him but it will not be proper to burden this order by referring to all those cases, but reference to some cases on the subject would be useful for the convenient answer of these references.