D.P. Singh vs Engineering Projects (India) ...
1995 Latest Caselaw 38 Del

JUDGMENT

D.K. Jain. J.

1. By this writ petition under Article 226 of the Constitution of India, the petitioner/workman seeks an appropriate writ or order or direction, directing the first respondent M/s Engineering Projects India Limited, a Government of India Enterprise (Executing construction projects in India and abroad) to regularise the services of the petitioner in the post held by the him since 1976 and accord the same salary and conditions of service as are being given to all the regular employees performing similar duties and the functions w.e.f. 12 February 1976. The second respondent is the Project office of the first respondent at Badarpur (Delhi) where the petitioner was last working.

2. According to the petitioner, he was employed as a Chowkidar on daily wages w.e.f. 12 February 1976 by respondent No. 1 at Bokaro site office Dhanbad. As per his appointment letter, the appointment was temporary and on casual basis for 44 days. After the expiry of 44 days he was reappointed on the same post vide letter dated 27 March 1976 for a further period of 44 days on the same terms and conditions. Thereafter vide letter dated 31 May 1976 he was appointed as Chowkidar on a consolidated salary. As per the appointment letter he was to be on probation for a period of six months which could be extended if considered necessary. As per clause 5 of said appointment letter his appointment with respondent No. 1 was for a period of two years or till the completion of its project Bokaro Coal Crushing and Blending Plant, whichever was earlier and thereafter his services were liable to be terminated or else he could be considered for appointment in the company, subject to the approval of the Chairman and Managing Director. The petitioner's case is that he has been continuously working with the respondents since 1976 and was performing the same duties and functions as were being performed by the regular employees of respondent No. 1 but the respondents have failed to regular is his services. He claims that a per his service conditions he is entitled to the uniform and other benefits which are admissible to regular employees but the same are being denied to him on the ground that he was a temporary employee, even though the respondents have regularised the services of a temporary employee who was appointed later in time and is junior to he petitioner, as far back as in 1981. He, thus, contends that having put in 12 years of uninterrupted service with the respondents, refusal on their part to regularise his services and denial of the same pay and other benefits/facilities, as are being granted to the regular employees, is discriminatory, in violation of Articles 14 and 16 of the Constitution and against the judicial pronouncements of the Supreme Court.

3. The petition is resisted by the respondents. Apart from contesting the claim of the petitioner on merits, a preliminary objection to the maintainability of the writ petition has been raised in the counter affidavit filed. It is claimed that an alternative and efficacious remedy is available to the petitioner under the Industrial Disputes Act, 1947 (for short the Act), this Court should not exercise its extra-ordinary jurisdiction under the Article 226 of the constitution of India particularly because a similar writ petition filed in the Allahabad High Court on behalf of some of the project duration employees was dismissed in liming on the ground that the petitioners may raise an industrial dispute. On merits, it is stated that the first respondent, executing construction projects all over the country and aboard recruits regular as well as temporary employees for each project, who on the completion of the project, become surplus and in the normal course have to be discharged but still efforts are made to take back as many surplus employees as possible at the other up coming project. It is stated that the petitioner is a project duration employee and in the normal course he would have been discharged from the Bokaro project after its completion, as is normally done at all other sites but having regard to the memorandum of settlement dated 1st December 1981 between the respondent and the workmen, the petitioner was offered a temporary appointment at the constructions site at Badarpur (Delhi) and on the completion of the main project work at Badarpur, he having become surplus had to be discharged like other security guards engaged on project duration basis. The respondents deny any illegality, discrimination or arbitrariness in their action.

4. The petitioner by way of rejoinder repudiates the stand of the respondents that he was employed as a project duration employee and reiterates that he was employed as a temporary employee; was treated as such and infact after the completion of the Bokaro project he was transferred to Badarpur as a Chowkidar with respondent No. 1 and he did not work as project duration employee with National Thermal Power corporation Limited, on whose behalf respondent No. 1 was executing the project. As regards the discharge/retrenchment of the project duration employees, it is alleged that although the first respondent is a Corporation undertaking various projects as a regular course of its business but with ulterior motive is discharging all its employees on the ground that the project is over just to deprive the workmen of their legal rights and other benefits available to a regular employee. The gravamen of the grievance, thus, is that the petitioner having put in 12 years of uninterrupted service with the first respondent, has services are not being regularised and the respondent is thus indulging in unfair labour practice.

5. I have heard Mr. D. R. Gupta, Advocate for the petitioner and Mr. Raj Birbal, Senior Advocate for the respondents at some length, Mr. Gupta, drew my attention to the service rules, as amended up to 31 December 1988, to contend that these rules do not provide for engaging workmen on project duration basis and this so-called class of project duration employees has been created by the respondents of their own and in any case clause 5 of the letter of appointment dated 31 May 1976 gave an option to the management to terminate petitioner's services on completion of two years or on the completion of the project, whoever was earlier and the management having not terminated his services under the said clause, his services are deemed to have been regularised. On the other hand, Mr. Birbal vehemently contends that not only various disputed questions of fact are involved in the matter, no legal right flows in favor of the petitioner from the aforesaid letter of appointment and right, if any, accruing there from being contractual, it cannot be enforced by taking recourse to the writ jurisdiction.

6. The first question which needs consideration is whether it will be proper for this court to adjudicate upon the issues raised in the petitioner in the exercise of extra-ordinary jurisdiction under Article 226 of the constitution or decline to do so and direct the petitioner to ventilate his grievance before the statutory for established under the Act.

7. It is not doubt true that the powers conferred under Article 226 of the Constitution are very wide and exercise thereof not subject to any restriction except the territorial restriction, expressly provided in the Articles but, as observed by the Supreme Court in Than Singh Mathmal v. Superintendent of Taxes, , the very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. In this very decision the Supreme Court observed thus :

"... Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed and will leave the party applying to it to seek resort to the machinery so set up."

8. Then against in Union of India v. T. R. Verma, AIR 1965 SC 882, the Supreme Court observed as under :

"... It is well settled that when an alternative and equally efficacious remedy is open to a litigant he should be required to preserve that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but as observed by this Court in Rashid Ahmad v. Municipal Board, Kairna, the existence of an adequate legal remedy is a thin to be taken into consideration in the matter of orginating writs."

9. Though there is a plethora of case law on the issue and in particular on the question of jurisdiction of Civil Court in such matters but I do not propose to burden the judgment by making reference to them because by now it is well settled that where an adequate and efficacious statutory remedy is available for the enforcement of a right or obligation created under the statute, in the absence of some exceptional and extra-ordinary circumstances, normally a suiter should get it adjudicated under the Act and he should not be allowed to invoke the jurisdiction of this Court under Article 226 of the Constitution.

10. In this context reference was incidentally made to a recent decision of the Supreme Court in R. K. Panda & Ors. v. Steel Authority of India Limited, 59 (1994) II CLR 402 by learned counsel for the petitioner a matter relating to regularisation of contract labour and the Supreme Court though entertained the writ petition but while doing so, it took note of the peculiar facts of the case and the situation which it was faced with on account of different interim orders already made by the Court and observed that but for these orders, it would have directed the petitioner to pursue the remedy under the Act because normally the Labour Court and the Industrial Tribunal established under the Act are the competent fora to adjudicate such disputes on the basis of oral and documentary evidence produced before these authorities.

11. In the light of the aforesaid legal position, the prime question is whether on the facts of the present case the petitioner should be permitted to bypass the normal statutory remedy available to him. Apart from the fact that the petitioner has not even pleaded in this writ petition that no adequate or efficacious remedy is available to him under the Act, I feel that the facts in hand are not of such a nature which may justify interference by this Court in the exercise of its extra-ordinary jurisdiction. On the contrary, on most of the issues rival set of facts have been pleaded viz. (i) petitioners, statutes as a project duration employee at Bokaro and at Badarpur, if such a class of employee exist, (ii) assuming that the petitioner could be/was a temporary employee and not a project duration employee as no such employment is envisaged in the service rules relied upon, the question would still be whether the petitioner was a contract employee for a particular duration or recruited as a temporary employee governed by the rules, as he claims. In case he was engaged on contract, his case may not fall within the ambit of the rules, relied upon, (iii) availability of regular posts and (iv) petitioner's statutes as a temporary employee vis-a-vis other similarly situated temporary employees etc. Obviously, all these question require investigation into facts for which the parties may have to lead their evidence and the questions realised cannot be decided on mere affidavits. For this purpose undoubtedly the Labour Court or the Industrial Court, having wide powers, is the right forum.

12. It is also pertinent to notice here the amendments brought about in the act w.e.f. 21 August 1984. By virtue of the said amendments, Sections 2(ra), 25(T), 25(U) and the Fifth Schedule have been added to the Act, which are self explanatory and read thus :

"Section 2(ra) "unfair labour practice" means any of the practices specified in the fifth Schedule :"

"Section 25T - No employer or workman or a trade union, whether registered under the Trade Unions Act 1926, or not, shall commit any unfair labour practice".

"Section 25U - Any person who commits any unfair Labour practice shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both".

13. Items No. 10 in the Fifth Schedule to the Act, which specified one of the unfair Labour practices, relevant for the present purpose reads as under :

"(10) To employee workmen as "badlis" casuals or temporaries and to continue them as such for years, with the object of depriving them of the statutes and privileges of permanent workman."

14. Thus, in addition to the right of a workman to raise a substantive industrial dispute, which may be referred under Section 10 of the Industrial disputes Act, to the Labour Court or the Industrial Tribunal, as the case may be, for adjudication and award of appropriate relief the aforesaid new amendments in the Act also prohibit the employers from resorting to such practices which may be treated as unfair labour practices specified in the Fifth Schedule. despite these provisions, if an employer still indulges in unfair labour practices, a workman can always seek his remedy under the newly added provisions as well.

15. In the instant case, nothing is pleaded or shown that the remedy available to the petitioner under the Act is inadequate or inefficacious or has demonstrated the existence of any exceptional or extra-ordinary circumstance, enabling him to bypass the alterative remedy available under the Act. In my view the dispute raised in the writ petition is substantially the subject matter of a reference before the Labour Court or the Industrial Tribunal, as the case may be, which is an adequate and efficacious alternative remedy available to the petitioner under the Act and in my opinion it is not a fit case where this Court should exercise its extra-ordinary jurisdiction under Article 226 of the Constitution.

16. In the view which I have taken of the writ jurisdiction, upholding the preliminary objection raised by the respondents, it is unnecessary to discuss the other issues raised in the petition and orally urged by Mr. Gupta and the case law relied upon as they all relate to the merits of the case and any observation thereon is likely to prejudice the case of either of the parties.

17. Before parting I my also deal with the contention urged by Mr. Gupta that after Rule is issued in a matter, a writ petition should not be thrown out on a technical objection of availability of an alternative remedy. In support, reliance has been placed on a decision of this Court in M/s Allied Motors Pvt. Ltd. v. New Delhi Municipality, 1975 T.L.R. 1497. There is no merit in the argument. The said authority does not lay down as an abstract proposition of law that once Rule has been issued, all preliminary objections regarding maintainability of writ petition are deemed to have been overruled. The Court only felt that if the petitioners are directed to seek the alternative remedy by way of an appeal, it would take considerable time before the matter could be finally settled. In my view, till the matter is finally decided, all the issues raised by the either of the parties remain open and the delay in the disposal of a matter by the either of the parties remain open and the delay in the disposal of a matter by itself cannot be a ground to bypass the statutory remedy. Infact after a preliminary objection about the maintainability of the writ petition is raised, pursuing further the same remedy is at petitioner's own peril.

18. In view of the foregoing discussion the writ petition is dismissed with liberty to the petitioner to avail of such alternative remedy as may be available to him for the enforcement of his rights. Rule is discharged. No costs.