DEEPAK KUMAR KHIARA Vs. OIL INDIA LIMITED

JUDGEMENT

(1.) THE present special appeal is directed against a judgment and order dated 30th October, 1995 passed by a learned Single Judge of our Court in S.B. Civil Writ Petition No.3310/90, whereby the learned Single Judge holding inter -alia that the writ petitioner -appellant has got alternative efficacious remedy before the Labour Court, apparently following a Full Bench decision of five learned Judges of this Court in Gopi Lal Teli v. The State of Rajasthan and Ors. reported in 1995 (1) W.L.C. 1 : 1995 (1) W.L.N. 300, dismissed the Writ application only on the ground of alternative remedy being available to the writ petitioner -appellant.

(2.) WE have perused the said Full Bench judgment of this Court minutely. The Full Bench took into consideration the fact that in very many judgments, the Supreme Court itself held that alternative remedy is no bar for entertainment of the writ petitions under Article 226 of the Constitution of India and there may be cases in which this Court inspite of the fact that there is an alternative remedy may interfere depending on the facts of the case. The Full Bench refused to lay down the circumstances/grounds exhaustively in which this Court, inspite of availability of alternative remedies, may interfere in the petitions under Article 226 of the Constitution of India since 'it is difficult to lay down conditions/grounds exhaustively as the facts differ from case to case and, as such, conditions/grounds which may be held as sufficient for invoking the extra -ordinary writ jurisdiction of this Court cannot be confided in a water tight compartment'. The learned Judges of the Full Bench were very much influenced by the submissions made on behalf of the respondents and even ignored the submission made on behalf of the petitioner that even where the orders were wholly without jurisdiction and were passed in flagrant violation of the principle of natural justice, the writ petitioner could not be relegated to avail of the remedies provided under the Industrial Disputes Act, 1947. The Full Bench was very much influenced by the observations of the Hon'ble Supreme Court in Basant Kumar Sarkar and Ors. v. Eagle Rolling Mills Ltd. and Ors. reported in : (1964)IILLJ105SC , where the Supreme Court relegated the writ petitioners to avail of the alternative remedies, where they could ventilate their grievances in respect of the impugned notices and circulars and take recourse to Section 10 of the Industrial Disputes Act, 1947 or seek relief, if possible, under Sections 74 and 75 of the said Act. The Full Bench was also influenced by the observations of the Apex Court in Premier Automobiles Ltd. v. Kamlakar Santa Ram and Ors. reported in : (1975)IILLJ445SC and held that even the possibility that the Government may not ultimately refer an industrial dispute under Section 10 on the ground of experience, is not a relevant consideration in this regard. However, in the penultimate paragraph by way of conclusion while propounding the ratio of the said judgment if observed that even in such cases where the order is without jurisdiction, it was essentially a question of fact and required investigation before reaching a conclusion and normally such investigation or enquiry was beyond the scope of Article 226 of the Constitution of India and these questions can suitably be agitated and adjudicated upon by the authorities constituted under the Act on the basis of the evidence adduced by the parties. The Full Bench therefore reached the opinion that even in such cases, the normal rule for an employee should be to avail remedies provided under the Act and entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be 'with great care and caution and in very exceptional cases.' The Full Bench answered the question as referred to by the learned Single Judge to the effect that for violation of the provisions of Chapter V -A of the Industrial Disputes Act, 1947 or violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and exercise of power under Article 226 of the Constitution of India in such cases should be sparingly made.'

(3.) IN A.v. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr. reported in : 1983ECR2151D(SC) , the Full Bench of Five learned Judges went into the question of existence of alternative remedy and how far it was a bar to entertainment of a writ petition. It was held to be not a bar to the exercise of jurisdiction by the High Court to entertain the petition or to deal with it, but it was rather a rule which Courts have laid down for the exercise of their discretion. The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution of India was found to be a general rule unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and, therefore, could be treated as void or non est and that in all other cases Courts should not entertain petitions under Article 226 or in any event, not grant any relief of such petitioners, cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy were found by no means exhaustive or of was said that even beyond them a discretion vests in the High Court to entertain the petition and giant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus pre -eminently one of discretion, it is not possible or even if it were it would not be desirable to lay down inflexible ruels which should be supplied with rigidity in every case which comes up before the Court.