Visl Contract Workers Association (R) and Another vs Visvesaraya Iron and Steel Ltd.

Shivashankar Bhat, J.-The first petitioner is a trade union and 2nd petitioner it its treasurer. Writ petition is filed in a representative capacity representing 123 workmen. According to the petitioners, these workmen were working in the respondent company for several years, in the jobs of permanent and perennial nature, but were denied employment. Earlier they were purported to be employed as ''contract labours'', though, as a fact they were direct employees. For regularisation or absorption, these workmen agitated and the matter was pending before the Labour Court, Mangalore, by virtue of the reference dated 19-11-1985. The respondent company, after disconnecting the contractor, had also, in fact, directly employed these 123 workmen calling some of them as casual workmen. However, on 27-6-1987 all these workmen were orally told that they had no work and their services were not required. Hence the writ petition, invoking Sec. 25F and 25N of the Industrial Disputes Act.

The respondent denied that these workmen were direct employees. It pointed out that in the reference pending before the Labour Court the case of 1193 workmen including the 123 workmen referred in the writ petition, was pending adjudication and that the petitioners are having an effective alternative remedy and therefore this court should not exercise its writ jurisdiction. On merits, the respondent has contended that these workmen were not eligible to rely on Sec. 25F or 25N of the I.D. Act.

Mr. Krishnaiah, the learned counsel for the petitioners, pointed out that, the cause of action for the writ petition arose during the pendency of the reference, by the discontinuation of the services of 123 workmen in the year 1987; therefore, pendency of reference is irrelevant for the disposal of this writ petition on merits. It was also contended by Sri Krishnaiah, that, reference to Labour Court is not an efficacious remedy, because of the vast delay involved in the proceedings before the Labour Court, the reference to Labour Court, Mangalore, made as early as in the year 1985 is still pending, in this regard.

Delay in the disposal of the legal proceedings and accumulation of a large number of cases before the courts and Tribunals, by themselves, cannot be a ground to ignore the statutory forums created to resolve the disputes and to exercise the writ jurisdiction straightaway. The same difficulties are to be faced by this Court also. The remedy is not to by-pass the effective alternative remedies and permit the opening of the doors of writ courts, but the remedy is to (1) increase the number of such statutory forums and (ii) post competent Presiding Officers without delay. Writ court''s discretion has to be exercised with reference to the facts of individual cases. Existence of an effective alternative forum under Law, is one of the main factors to be considered, while refusing the exercise of writ jurisdiction; possibility of delay by the said alternative, statutory forum has to be ignored as irrelevant. Rarely we come across a right sought to be enforced, which cannot be brought within the purview of one or the other valuable fundamental rights enshrined in Art. 14, 19 or 21 of the Constitution. The statutory rights created by welfare legislations like Industrial Disputes Act, are traceable to the requirements of fair procedure before affecting the right to livelihood, which is sought to be enforced as an ingredient of Art. 21 of the Constitution. When the employer is the State or its instrumentality, the arbitrariness behind the denial of employment can also be attacked as violative of Art. 14 of the Constitution. In other words, the employees of the State and its instrumentalities, can always ignore the existence of statutory remedies, to enforce those rights, and invoke Art. 226 of the Constitution of India, if the contention of petitioners is to be accepted.

While creating statutory rights like Sec. 25F or 25N of the I.D. Act, the legislature thought it fit to create an appropriate forums (like the Industrial Tribunal or the Labour Court) to enforce those rights, vesting vast powers in those forums. Should this court ignore the wisdom of the legislature in creating those forums while recognising the rights created under the very statutes?

The age old dictum is-"if the statute which creates the obligation, whether private or public, provides in the same section or passage a specific means or procedure for enforcing it, no other method than that thus provided can normally be resorted to for that purpose" (Maxwell on Interpretation of Statutes-11th edn. page 382). When the legislature has thought it fit to create new forums to enforce the rights created by it, this Court (specially while exercising the constitutional jurisdiction under Art. 226) should respect the legislative wisdom; frequent bypassing the statutory forums would be indicative of the suspicion as to the competent of such statutory forums, which is not at all conducive to the proper functioning of statutory bodies entrusted with judicial powers. The purpose of law enforcement (which is part of this Court''s jurisdiction) includes recognition of competence in the bodies created by the statute. As I have already observed, the delay in the disposal of cases by these statutory bodies, by itself cannot be a ground to bypass them and approach this court directly; avoidance of delay has to be achieved by other means.

The dispute raised in this writ petition is substantially the subject matter of the reference before the Labour Court. The questions raised require investigation of rival set of facts pleaded by both sides. Jurisdiction of the Labour Court under the provisions of Industrial Disputes Act is very wide, so as to include in it a power to create fresh legal relationships also.

In the case of dismissal orremoval of a workman from service, the remedy of the aggrieved workman was, held to be, to invoke Sec. 10 of the Industrial Disputes Act and seek a reference-vide Hariba v K.S.R.T.C. [1983(1) Kar.L.J. 261] and Sreenivasulu v General Manager, KSRTC, [1984(2) Kar.L.J. 307].

By virtue of Sec. 2-A of the Industrial Disputes Act, where an employer discharges, dismisses, retrenches or otherwise terminates the services, of an industrial workman, any dispute pertaining or incidental to such an action, is deemed to be an industrial dispute; therefore, the industrial workman is not under the mercy of any Union or his co-employees to have his grievance redressed in these matters. In the instant case, actually, it is unnecessary even to invoke this provision, because, the Union has been espousing the cause of the concerned workmen and in fact is the first petitioner in this writ petition. The writ petition is filed during the pendency of reference before the Labour Court. The Labour Court''s jurisdiction to examine the nature of the erstwhile employment of these workmen and to grant an appropriate relief is not doubted by the petitioners. In case of any doubt about the scope of the pending reference, parties can have it clarified or enlarged by taking suitable steps.

In these circumstances, I consider this a case where writ jurisdiction ought not to be exercised.

State of Bombay & Others v The Hospital Mazdoor Saba & Others (AIR 1960 SC 610) was relied by the learned counsel for the petitioners. The Bombay High Court entertained a writ petition, challenging the retrenchment of two workmen and granted relief to the workmen; workmen had relied on Sec. 25F and 25H of I.D. Act. The Supreme Court upheld the decision of the Bench of Bombay High Court.

In the above case, the propriety of exercising the writ jurisdiction was not at all considered by the Supreme Court. Parties concentrated on the question whether ''hospitals'' fail within the concept of ''industry'' and whether provisions of I.D. Act were applicable; the question raised was purely one of law and of much public importance; the facts involved in the said case are entirely different from the present fact situation.

Mr. Krishnaiah, strongly relied on the observations of Supreme Court at paras 32 and 33 in Olga Tellis case (AIR 1986 SC 180) and contended that the fundamental rights of the workmen, specially, Art. 21 was involved here and hence existence of an alternative remedy is not a bar against invoking the writ jurisdiction. If ''right to life'' includes ''right to livelihood'', denial of employment illegally offends Art. 21, was the basis of this contention. Theoritically, there is a great force in Mr. Krishniah''s contention. But, here, the basic questions are, whether, there has been an illegal denial of employment; if not, whether, the respondent should be directed to provide employment to the workmen by creating a new legal relationship. These involve investigation of disputed facts under the first question and a consideration of several other facts including the economics of providing employment to these large number of employees. Alternatively, the court may have to consider the question of adequately compensating these workmen, if circumstances warrant such a relief.

Therefore, I cannot agree with Sri Krishnaiah that, this is a fit case for exercising the writ jurisdiction.

Mr. Krishnaiah also referred to an unreported decision of the Supreme Court in Sankar Mukherjee & Others v Union of India & Others (W.P. No. 2123 of 1982-D.D. 16-11-1989). Government of India in the exercise of its powers under Sec. 10 of Contract Labour (Regulation and Abolition) Act, 1970 issued a notification prohibiting the departments covering 65 jobs in the establishments of Indian Iron & Steel Co. Ltd., from employing contract labours; however, the job of loading and unloading of bricks from wagons and trucks was excluded from the purview of the notification. This exclusion was challenged by filing the writ petition in Supreme Court as violative of Art. 14 of the Constitution. The Supreme Court upheld the petitioners'' contention and held that the benefit of notification should be available to the job of loading and unloading of bricks also, as the said job was not dissimilar from other jobs. This decision, again, is based on admitted facts of the said case.

Mr. Prabhakar the learned counsel for the respondent pointed out that, here, the main question is whether these workmen were ''contract labours'' or direct employees of the respondent; if they are ''contract labours'', they cannot seek absorption as a matter of right. The learned counsel relied on,- (1) AIR 1985 SC 760 para 11;

(2) AIR 1990 Lab. & I.C. 405 (A.Pra.)

(3) 1989(2) L.L.J. 312;

(4) 1979(1) L.L.J. 41; and (5) 1980(1) L.L.J. 503 (SC).

In the view, I have taken of the writ jurisdiction and the availability of an effective alternative remedy to the petitioners, it is unnecessary to discuss the decisions cited by Sri Prabhakar.

Consequently this writ petition is dismissed. Rule is discharged. No costs.

Writ Petition Dismissed.