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Judgment
Shabihul Hasnain, J.—These writ petitions leading being writ petition No. 2235 (S/S) of 2004 were decided on 12.4.2013 by this Court. The opposite parties preferred special appeals bearing Nos. 292/903/907/295/294/293/905 and 904 of 2013 before the Division Bench of this Court.
After hearing the parties the Division Bench passed orders on 30th July, 2014. The operative portion of the order is quoted below:-
"Since no other point has been raised by the appellant except the above, we are not entering into other aspect of the matter, which may prejudice rights of either of the parties and we remit the matter to the learned Single Judge with the request to decide the issue Nos. 1 and 2 as formulated in the judgment and order dated 19.2.2009 by giving cogent reasons within a maximum period of six months, if possible."
As is evident the matter was remitted to the Single Judge dealing with service single matters but eventually that Court by judicial order has nominated this Court to decide the matter in the light of the direction of the Division Bench.
It is obvious that three questions were formulated by the Division Bench to be answered by the Single Judge, who decided only one question i.e. the third and last question while declining to answer the first and second question. Before going into the merits of the case once again, it will be necessary to examine as to why three questions were formulated to be answered by the Single Judge. The paragraph in which these questions have been formulated needs to be reproduced:-
"Lastly, the learned Counsel submitted that if this Court is of the view that more specific finding is needed, the said two issues may be remitted to the Writ court for specific finding with in a specific time framework keeping in mind the provisions of Order 41, Rule 25 C.P.C.
A perusal of the Judgment and order passed in Special Appeal No. 510 of 2004 reveals that when the writ petitions of the appellants of that case was dismissed on the ground that the appellants are workmen and, therefore, they had a remedy to go to the labour court or tribunal, as the case may be. Aggrieved by the said judgment and order dated 2.11.2004, the appellants therein filed Special Appeal No. 510 of 2004, referred to above. The Division Bench headed by Justice H.L. Gokhale, Chief Justice (as His Lordship then was) allowed the Special Appeal vide judgment and order dated 19.2.2009 and remitted the Special Appeal with a direction that the learned Single Judge will decide the following three issues, which are as under:-
"1. As to whether the appellants are workmen or not?
In the event, he comes to the conclusion that the appellants were not workmen, still whether the Court should exercise writ jurisdiction or not?
In the event the Court decides the question whether the termination was bad and in that case what relief should be given to the appellants?"
Since the matter has been remitted back to express my opinion on the first two points once again it becomes imperative to understand the spirit of the query in the context of the dispute.
Petitioners are retrenched employees of U.P. Handloom Corporation. They had filed the writ petition challenging the retrenchment on the ground of arbitrariness, lack of opportunity of hearing and strong allegation of malafide. The opposite parties had taken a stand throughout, that the petitioners are workmen and the matter should be sent to the labour court. Number of petitions were dismissed on the ground of alternative remedy. Aggrieved by one of such judgments, Special Appeal No. 510/2004 was filed and the Division Bench formulated aforesaid issues.
It is important to discuss here that as to why it is necessary to answer questions No. 1 and 2? What useful purpose or judicial requirement will be served by answering these questions as to whether the petitioners are workmen or not? With all humility at my command, I wish to observe that the object of every Court; be it High Courts, Civil Courts, Administrative Tribunals, Labour Courts or any other judicial forum, is to impart justice. Would it make any difference if justice is achieved by ''H'' Court and not by ''Y'' Court. If the order passed by ''H'' court is unassailable then the question of alternative remedy cannot be raised. The appellants have not raised a single argument on the merit of the judgment of the Single Judge. On one hand the appellants have not raised even a single argument on the merit of the judgment of Single Judge; on the other hand, they insist that issue Nos. 1 and 2 should have been answered by the Single Judge, perhaps for academic purposes or to cause delay.
The Division Bench was persuaded to believe that the Single Judge has ousted the jurisdiction of Labour Court by not answering those two queries. The appellants appear to have argued before the Division Bench that U.P. State Handloom Power Corporation Limited (Officers and Staff of Services) Rules, 1981 empowers the corporation to invoke the provisions of Industrial Disputes Act, hence, the matter ought to have been sent to the labour court.
I will make an endeavour to explain that this Court has not tried to oust the jurisdiction of Labour Court at all. It is barred by the Second Schedule of Industrial Disputes Act, 1972 itself (Emphasis). The specific provision available under Second Schedule of Industrial Disputes Act, 1972 makes the matter absolutely clear and it becomes imperative to reproduce the entire Second Schedule in this judgment as has already been done in the earlier judgment:-
Second Schedule.
"a. The propriety or legality of an order passed by an employer under the standing orders;
b. The application and interpretation of standing orders;
c. Discharge or dismissal of workmen including reinstatement of, or grant of relief to, workmen wrongfully dismissed;
d. Withdrawal of any customary or concession or privilege;
e. Illegality or otherwise of a strike or lock-out; and
f. all matters other than those specified in third schedule."
After quoting the Second Schedule in the earlier judgment I had given reasons explaining as to how the Second Schedule itself bars the jurisdiction of the Labour Court in matters of violation of principles of natural justice. I quote that part of the judgment once again firstly to elaborate the point of view and secondly the reason why answering issue Nos. 1 and 2 was not relevant at that point of time before the Bench as of today;
"As respondent has argued that subject matter of this writ petition falls under clause a, b, c and for attracting jurisdiction of Labour Court; this court is dealing all points separately.
Clause a, ''The propriety or legality of an order passed by an employer under the standing orders'', gives Labour Court power to check the propriety or legality of order of employer only, it does not give any power by virtue of which Labour Court can check the ''''arbitrariness'''' which is the subject matter of this writ petition.
Secondly, Labour Court can check the legality or propriety of only those orders which are passed by employer under the Standing Order. What if, employer has passed order not under Standing Order; Labour Court is not authorised to check the legality of order passed by employer outside the purview of Standing Order. In this writ petition employer passed the order of retrenchment provision of which was nowhere in existence in policies of Company. So, such orders are not within the scope of policies of Company. Hence this point fails to give jurisdiction to Labour Court over subject matter of writ petition.
Clause b, ''The application and interpretation of Standing Orders'', is corollary to above point as it deals with power of Labour Court to apply and interpret Standing Order. Again the same question arises, what if, order which requires such application or interpretation does not fall within the arena of Standing Order. As above established, order passed by the employer was out of the policies of Company; Labour Court is not authorised to entertain such matters due to reason of its limited jurisdiction of application and interpretation of standing order only. Clause c, ''Discharge or dismissal of workmen including re-instatement of, or grant of relief to, workmen wrongfully dismissed'' empowers Labour Court for matters of dismissal or discharge of workmen but in present writ petition, neither there is dismissal nor discharge, but it is retrenchment, which is not covered by this clause. Hence, Labour Court is not having jurisdiction over subject matter of writ petition.
Clause f which is, ''all matters other than those specified in third schedule'', seems to be wide clause by inserting the words ''''all matters''''. But insertion of these words cannot give Labour Court such vast power by virtue of which it can usurp the exclusive domain of High Court. These words used here refer to matters of similar nature as in preceding clauses. Labour Court cannot deal with matters which relate to violation of Article 14 and 21 and violation of principles of Natural Justice, which is exclusive jurisdiction of High Court or Supreme Court. Thus, here also Labour Court is not authorized to entertain this writ petition.
After an in-depth discussion, it has become now crystal clear that Labour Court was not having jurisdiction over subject matter of this writ petition as no provision of Industrial Dispute Act 1947 is able to attract the jurisdiction of Labour Court."
I am constrained to observe that insistence on the answer to issue Nos. 1 and 2 are only a ploy of the opposite parties to get the matter relegated to Labour Court for the purpose of delaying justice to the petitioners. It is well established that alternative remedy is not a bar in the course of justice. I wonder that once the Single Judge of a Constitutional Court has decided the case on merits and the judgment is not challenged on any legal issues decided, how can it be insisted by the opposite parties now that the issue "whether the petitioners are workmen or not" be also decided?
(emphasis).
I am constrained too, to observe that only the question of validity of "retrenchment" was under challenge in the writ petition and not to decide whether the petitioners are workmen or not? Justice is the ultimate object of any Court. If a judgment of Single Judge of a Constitutional Court is accepted by the opposite parties as correct and is not appealed of, on merits, then insistence on some academic question, which will not effect the outcome of the decision, cannot be appreciated by this Court. Even otherwise, if a constitutional court has held that retrenchment is bad on the grounds of violation of Article 14 and 21 and principles of natural justice in general, in that situation insistence by the opposite parties to decide question Nos. 1 and 2 can only be termed a tactic of delaying justice to the helpless petitioners, who are struggling for their rights for the last about fifteen years.
I reiterate the earlier stand and answer the query in the aforesaid terms.