Indian Additives Ltd. vs Indian Additives Employees Union and Another

Markandey Katju, C.J.—This writ appeal is preferred against the interim order dated 5.10.2004 passed by the learned single judge in the

writ petition filed by the first respondent herein. By the impugned order, the learned single judge has modified the order of interim stay and directed

the listing of the writ petition for final hearing. Aggrieved, the second respondent in the writ petition has preferred this appeal. With the consent of

both parties, the writ petition is directed to be tagged along with the appeal for final hearing and disposal.

Heard the learned counsel appearing on either side. It appears that the first respondent Union has filed the writ petition against the appellant,

alleging violation of the provisions of Section 9-A of the Industrial Disputes Act, 1947 (in short ''the I.D. Act'') while altering the service conditions

of its members. It is well-settled principle that when the dispute relates to the enforcement of a right or an obligation created under the Act, then the

only remedy available to the claimant is to get adjudication under that Act. In the present case, the grievance of the first respondent is that the

provisions of Section 9-A of the I.D. Act were breached by the appellant. If that is so, the first respondent''s remedy is by approaching the

appropriate forum created under the I.D. Act, viz., Board or Labour Court or Industrial Tribunal. Though there is a plethora of case laws on this

point, we would rely only on two decisions of the Supreme Court.

In the Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others, , the Supreme Court held as under:

Where, however, the dispute involved recognition, observance or enforcement of any of the rights or obligations created by the Industrial Disputes

Act, the only remedy is to approach the forums created by the said Act"".

The above principle was reiterated by the Supreme Court in U.P. State Bridge Corporation Ltd. and Others Vs. U.P. Rajya Setu Nigam S.

Karamchari Sangh, , in the following words :

We are of the firm opinion that the High Court erred in entertaining the writ petition of the respondent Union at all. The dispute was an industrial

dispute both within the meaning of the Industrial Disputes Act, 1947 as well as U.P. I.D.A. 1947. The rights and obligations sought to be enforced

by the respondent Union in the writ petition are those created by the Industrial Disputes Act.

After referring to the observations made in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, , the

Supreme Court observed as follows :

Although these observations were made in the context of the jurisdiction of the Civil Court to entertain the proceedings relating to an industrial

Dispute and may not be read as a limitation on the Court''s powers under Article 226, nevertheless it would need a very strong case indeed for the

High Court to deviate from the principle that where a specific remedy is given by the statute, the person who insists upon such remedy can avail of

the process as provided in that statute and in no other manner"".

Learned counsel for the first respondent heavily relied on the Division Bench judgment of this Court in Voltas Volkart Employees Union Vs.

Voltas Limited, . We have carefully perused the said judgment. It is to be noticed that the law laid down by the Supreme Court in U.P. State

Bridge Corporation case (supra), Rajasthan State Road Transport Corporation case and Premier Automobiles Limited case, cited supra, was not

brought to the notice of the Division Bench and , therefore, the decision of the Division Bench, in our opinion, is not good law.

Learned counsel for the first respondent then referred to the decision in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and

Others, , and very heavily relied on the observations made in paragraph 10 thereof, which we quote below :

Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ

petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the

High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar

in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there

has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is

challenged.

In our opinion, the above observations of the Supreme Court cannot be held to mean that a writ petition cannot be dismissed on the ground of

alternative remedy when there is an allegation of violation of any of the Fundamental Rights or the principles of natural justice or the proceedings

are without jurisdiction. No doubt, it is well-settled that alternative remedy is not an absolute bar a writ petition but it is equally well-settled that

ordinarily if there is an alternative remedy, the discretion under Article 226 should not be exercised and the party should be relegated to avail the

alternative remedy. Hence, even if there is violation of any of the Fundamental Rights or of natural justice or the proceedings are without

jurisdiction, the High Court under Article 226, on the facts of the particular case, can still dismiss the writ petition on the ground of availability of

alternative remedy and ordinarily it should do so if there is an alternative remedy.

On the other hand, learned counsel for the appellant relied on the Full Bench decision of this Court in P. Pitchumani v. The Management of Sri

Chakra Tyres Ltd., 2004 (3) CTC 1. After referring to the ""various decisions including the decisions in Premier Automobiles Limited case,

Rajasthan State Road Transport Corporation, cited supra, the Full Bench categorically held in paragraph 14 (ii) as follows :

that dismissals, transfers and other matters concerning the service conditions of employees governed by I.D. Act, have to be adjudicated only by

the forums created under the said statute and not otherwise''"".

In the present case, when the first respondent Union complains that the appellant had breached the provisions of Section 9-A of the I.D. Act,

the only remedy available to it is to raise an ''Industrial Dispute'' and seek adjudication of the same before the appropriate forum created under the

I.D. Act rather than approaching this Court under Article 226 of the Constitution, by passing the alternative remedy available under the Act.

For the reasons given above, the appeal is allowed and impugned order is set aside. The Writ petition shall stand dismissed. No costs.

Connected W.A.M.P.No. 7250 of 2004 is closed.