Deep Chand Verma vs Punjab University

G.S. Singhvi, J.—This is an appeal under Clause X of the Letters Patent for setting aside order dated 4.6.1993 vide which the learned Single Judge dismissed Civil Writ Petition No. 2629 of 1989 filed by the appellant for quashing the order terminating of his service.

A perusal of the record shows that after having worked as a Technician under the Principal Investigator on the Atomic Energy Research Project from 2.8.1983 to 31.3.1985, the appellant joined service of the Panjab University, Chandigarh (hereinafter described as, the University) as a Clerk in the office of Registrar w.e.f. 13.8.1987. he filed Civil Writ Petition No. 8294 of 1988 alongwith four others for directing the University to regularise his service. The same was dismissed by a Division Bench on 15; 12.1988 with the observation that disputed questions of fact are involved in the case. Soon thereafter, the Registrar of the University issued order dated 20.12.1988 terminating the appellant''s service by giving him notice pay in terms of Section 25-F (a) and compensation in terms of Section 25-F (b) of the Industrial Disputes Act, 1947 - (for short, the 1947 Act;). The appellant challenged the termination of his service by contending that the action of the University was violative of his fundamental right to equality. He averred that a number of persons junior to him had been retained in service and in this manner he had been subjected to discrimination. He also invoked the rule of last come first go embodied in Section 25-G of the 1947 Act. In its reply, the respondent-University raised several preliminary objections including the one that an effective alternative remedy was available to the writ petitioner (appellant herein). On merits, it was averred that those who had been retained in the service were not junior to the appellant,

The learned Single Judge dismissed the Writ petition on 10.5.1993 with the following observations:-

"The petitioner was appointed on 26.5.1988 and vide the present petition he has sought for his regularisation by mainly contending that after having worked for more than 240 days he deserves to be regularised in view of the judgment rendered in Piara Singh''s case 1988 (4) SLR 739. The aforesaid judgment was the subject matter of appeal before the Supreme Court which has been allowed. A Division Bench of this Court after the decision rendered in State of Haryana v. Piara Singh 1992 (5) SPJ 1 held that no order of regularisation can be passed simply if a person has completed more than 240 days of service. This was so said after noticing the findings recorded in Piara Singh''s case 1992(5) SPJ 1. Finding no force in this petition I dismiss the same."

The appellant filed Civil Misc. Application No. 4470 of 1993 for recalling order dated 10.5.1993 and for disposal of the writ petition on merits by stating that the writ petition had been erroneously dismissed in the absence of his counsel. The learned Single Judge allowed the Civil Misc. application and recalled order dated 10.5.1993, but again dismissed the writ petition, this time on the ground of availability of alternative remedy before the Labour Court. The relevant extract of the second order dated 4.6.1993 passed by the learned Single Judge is reproduced below:-

"In view of the fact that the petitioner was not represented for the reason explained in paragraph 4 of the application, I recall my order dated 10.5.1993

The only argument raised in the case is that the persons junior to the petitioner were retained whereas the services of the petitioner have been terminated. If that be so, it will be open to the petitioner to seek his remedy before the Labour Court. Dismissed."

Although, no one has appeared on behalf of the appellant, we do not consider it proper to dismiss the appeal in default because after hearing the learned counsel for the respondent-University, we are convinced that the impugned order is legally unsustainable and is liable to be set aside.

Shri Vikram Aggarwal counsel for the respondent-University attempted to justify the dismissal of writ petition by arguing that termination of the appellant''s service gave rise to an industrial dispute which can be adjudicated only by the Labour Court and not by this Court. He further argued that the question as to whether persons junior to the appellant had been retained in the service of the University and thereby rule of last come fist go had been violated can be properly gone into by the Labour Court on a reference made u/s 10(1)(c) of the 1947 Act and, therefore, the learned Single Judge had rightly directed the appellant to avail remedy before the said Court.

We have given serious thought to the argument of the learned counsel, but have not felt persuaded to agree with him. The expression industrial dispute as defined u/s 2(K) of the 1947 Act was interpreted by the Supreme Court in Central Provinces Transport Services Limited v. Raghunath Gopal Patwardhan 1957 (1) LLJ 27 to mean as a collective dispute and not an individual dispute. In Workmen of Dharampal Prem Chand (Saughandi) v. Dharampal Prem Chand (Saughandi) 1965(1) LLJ 668, the Supreme Court held that notwithstanding the width of the words used in Section 2(K), a dispute raised by a single workman cannot become an industrial dispute unless it is supported by his union or in the absence of a union, by substantial number of workmen. In view of these decisions, Section 2-A was added to the 1947 Act vide which an Individual dispute has been notionally connected with '' '' discharge, dismissal, retrenchment or termination" and has been treated as an industrial dispute notwithstanding that neither any workman nor any union of workmen espouses such a dispute.

In view of the above, it may be possible to take the view that the termination of the appellant''s service can become an industrial dispute. However, in the facts of this case, we do not think that the appellant can be relegated to the alternative remedy of industrial dispute because what he is seeking to enforce is not only the right flowing from section 25-G of the 1947 Act, but the right to equality guaranteed to him under Articles 14 and 16 of the Constitution of India. No doubt, in its written statement, the respondent-University has made an attempt to show that none of the persons retained in service was junior to the appellant, but that is an issue on which no finding has been recorded by the learned Single judge. Therefore, in the absence of any compelling reasons, we do not find any justification to relegate him to alternative remedy for enforcement of his fundamental rights.

For the reasons mentioned above, the appeal is allowed. The order of the learned single judge is set-aside, and the case is remanded to the learned Single Judge for adjudication on merits.

The Registry is directed to issue notice to the appellant (writ petitioner) informing him about the decision of the appeal so as to enable him to appear and prosecute his case before the Single Bench.

Sd/- M.M. Kumar, J.