P. Saravanan vs Engineering Projects (I) Ltd.

A.K. Rajan, J.—The petitioner has filed this writ petition for issue of writ of Certiorarified Mandamus calling for the records relating to the

proceedings in No.MDS.PMD2/174/34 dated 30.06.1994 of the first respondent and quash the order passed therein and consequently direct the

respondents to absorb the petitioner as Junior Supervisor on a permanent basis and to treat his services as a continuous one with all other

monetary benefits arising therefrom.

2.The petitioner was originally appointed as Junior Supervisor by order dated 2.9.88 with effect from 14.9.88. It was originally for a duration of

one year or till the completion of the housing project in Madras whichever is earlier. Even though he was appointed for a prescribed period, the

appointment continued beyond one year. He was treated in the cadre of `Project Duration Employee'' and necessary benefits were extended to

him. Since, he was not terminated after one year, he was given an impression that he will be permanently absorbed due to the continuous

employment beyond the period of 240 days. While so, the second respondent through his proceedings dated 20.7.93 has informed that

consequent upon revision of pay and allowances he would be entitled to other benefits as applicable to all contract employees. The designation of

the employee was changed from `Project Duration Employee'' to a `Contract employee''. The first respondent through his order dated 30.6.94

suddenly relieved the petitioner from his duties with effect from 30.6.94. It has not obtained the approval from the competent authority. Therefore,

this writ petition has been filed to quash the order in No.MDS/PMD2/174/34 dated 30.6.94 and consequently to direct the respondent to absorb

him as Junior Supervisor on permanent basis with all consequential benefits.

3.No counter has been filed.

4.The counsel for the petitioner argued that the petitioner was originally appointed as Junior Supervisor for one year or till the project was

completed. He was allowed to continue in service and the pay scale was also revised; but suddenly in 1993 he was termed as Contract employee

and therefore his term was fixed till 30.6.1994 and on 30.6.1994 he was terminated. This order of termination amounts to retrenchment; since the

provisions of the Industrial Disputes Act was not followed and the same is liable to be set aside.

5.The learned counsel for the respondents states that this is an industrial dispute between the parties and that has to be decided only by the Labour

Court and the petitioner cannot come to this court directly under Article 226 when there is an alternative remedy available before the Labour court

by way of Industrial dispute.

6.The counsel for the petitioner submitted that once the writ petition has been admitted and it was pending for nearly eight years, the fact that an

alternative remedy was available is not a ground not to decide the issue and to refuse to grant the relief. In support of that the learned counsel for

the petitioner relied upon a decision of this Court reported in 1996 W.L.R. 196 (P.R. RAMACHANDRAN V. TAMIL NADU WATER

SUPPLY AND DRAINAGE BOARD, REPRESENTED BY ITS MANAGING DIRECTOR, CHEPAUK, MADRAS 600 025) wherein A.R.

LAKSHMANAN, J. has held that availability of alternative remedy is not a bar to grant relief under Article 226 of the Constitution of India.

7.The counsel for the petitioner also relied upon another decision reported in 1991 W.L.R. 558 CHIE ADMINISTRATIVE OFFICER (D.A.)

VISVESVARAYA IRON AND STEEL LTD., V. KRISHNAMURTHY) wherein a Division Bench of this Court has held that availability of

alternative remedy cannot be held to be a bar for entertaining the writ petition under Article 226 of the Constitution of India. It has always been

held to be a rule of convenience and discretion and not a rule of law.

8.Relying upon the above two decisions, the counsel for the petitioner submitted that merely because an alternative remedy is available, this

petitioner cannot be driven to the Labour Court to seek the alternative remedy especially, after the case was admitted and it was pending for eight

years and therefore this Court may pass an order on merits.

9.The learned counsel for the respondents submitted that when an alternative remedy is available, only in case the petitioner has averred in the

affidavit filed in support of the writ petition as to why the alternative remedy was not efficatious, this Court can decide the issue in spite of the fact

that the alternative remedy is available. Otherwise, it has to direct the petitioner to approach the alternative forum for redressal. In support of that

the counsel for the respondent relied on a decision of this Court reported in 1984 TLNJ 457 - P.L. VELLAICHAMY V. THE UNION OF

INDIA, REP. BY ITS SECRETARY, MINISTRY OF LABOUR AND REHABILITATION, NEW DELHI AND ANOTHER wherein

Srinivasan, J. as he then was passed an order that the writ petition filed without resorting to alternative remedy of statutory appeal where the

affidavit does not aver appeal not efficacious, the writ petition was not maintainable. This Court held that, ''an appeal lies against the said order u/s

30(c) of the Workmen''s Compensation Act, 1923. The affidavit of the petitioner does not refer to the existence of the affidavit of the petitioner

does not refer to the existence of the statutory remedy by way of appeal; nor does it explain as to why that remedy was not resorted to by the

petitioner. There is no averment in the affidavit that the statutory appeal is not efficacious or it is too dilatory to grant quick relief to the petitioner

herein. The Supreme court held in Assistant Collector of Central Excise Vs. Jainson Hosiery Industries, : that unless the alternative remedy is not

efficacious or is too dilatory to grant quick relief to the petitioner, the jurisdiction under Article 226 of the Constitution shall not be invoked. Hence,

this writ petition is not maintainable, as the petitioner has got an alternative remedy by way of an appeal u/s 30(c) of the Act.''

9.The learned counsel also relied upon another decision of the Supreme Court reported in : BIHAR RAJYA VIDYUT PARISHAD FIELD

KAMGAR UNION, V. STATE OF BIHAR AND OTHERS wherein the Supreme Court has held that where the questions of fact like whether

workmen are doing work of temporary nature and who is their employer; whether they can be absorbed on permanent basis etc are disputes in the

nature of which cannot be conveniently adjudicated in the writ petition. It can appropriately be adjudicated under Industrial disputes Act.

Therefore, the counsel argued that in this case also the nature of the job itself is in dispute. According to the respondent, the petitioner was only a

Contractor employer, whereas according to the petitioner he became permanent by efflux of time by not terminating his services within one year as

per the rules framed. Therefore, there is dispute with respect to the nature of work itself.

10.The learned counsel for the respondents further relied upon a decision of the Supreme Court reported in Chairman Coal India Ltd., and another

Vs.Madan Prasad Sinha and Ors reported at, (2000) 10 SCC 597 wherein the Supreme Court has held that, `Even during the pendency of these

appeals, ample opportunity was given to the respondents to furnish the material documents to the appellants together with the necessary particulars

to enable their identification and scrutiny of their claim as workmen to determine the genuineness of their claim. Even after the lapse of more than

five years during the pendency of these appeals, the respondents have not satisfied this requirement. This position continues even at the present

hearing of these appeals. In such a situation, it is difficult to appreciate how the High Court could proceed to adjudicate the respondents'' claim on

merits even before their identity and status as workmen could be ascertained. This alone is sufficient to indicate that entertaining the writ petitions

and grant of any relief therein to the respondents on this material was wholly unjustified. The appropriate course for the High court to adopt was to

decline exercise of any power under Article 226 of the constitution and to require the respondents to resort to the remedy of adjudication of the

alleged industrial dispute in the manner provided therefore under the industrial laws.''

Therefore, the counsel for the respondents submitted that since the nature of the employment itself is disputed, it has to be adjudicated before the

Labour court and this Court cannot decide it by exercising the power under Article 226 of the Constitution of India.

11.According to the counsel for the petitioner, the petitioner became a permanent employee because he was not terminated as per the original

terms of employment on the completion of one year from the date of appointment and he was allowed to continue for nearly five years. In 1993

another order was issued wherein he was termed as a contract employee. In the mean while, his pay scale was revised and therefore, subsequent

to the order in 1993 calling the petitioner''s appointment as contractual is not valid inasmuch as he became a permanent employee by efflux of time

as he was in service for more than five years. Since the mandatory provision of the Industrial Disputes Act was not followed the order has to be set

aside.

12.But, according to the respondent the issue is whether the writ petitioner was a contract employee or a permanent employee. That can be

decided only by adjudication before the Labour Court.

13.The argument of the counsel for the petitioner is that in view of the fact that the writ petition was pending, after it was duly admitted for eight

years, it is not proper to send it back to the Labour Court for deciding the same.

14.But, the Supreme Court in referred supra has held that it is a dispute whether he is a contractual or permanent employee which has to be

adjudicated by the Industrial Tribunal. Though, some of the decisions of the High Court cited by the counsel for the petitioner is in support of his

claim in view of the decisions of the Supreme Court, I am not able to accept the argument of the counsel for the petitioner. In view of the judgment

of the Supreme Court cited above this matter has to be adjudicated only by the Industrial Tribunal and it cannot be decided by this Court under

Article 226 of the Constitution. Therefore, I accept the arguments of the counsel for the respondents and following the judgment of the Srinivasan,

J. in 1989 TLNJ 457 and the Supreme Court decisions cited above.

15.Therefore, this matter has to be decided by the Labour Court. In view of the fact that the writ petition is pending for eight years, there will be a

direction to the Labour Court that as and when the writ petitioner move the Labour Court by raising an industrial dispute, to dispose of the same

within three months from the date of filing. The writ petitioner is permitted to raise a dispute before the Labour Court within one month from this

date. The petitioner can file a petition before the Labour Court and the Labour Court without insisting on the period of limitation shall dispose of

the matter within three months from the date of filing. If it is not possible within three months, the Labour court must obtain permission for extension

of time. With this observation, this writ petition is dismissed. No costs.