K.P. Mohapatra, J.
1. In these writ petitions a large number of employees of various categories serving under opposite party Nos. 1 and 2 and their service associations have challenged the decision of opposite party No. 1 for retrenchment of staff considered to be excess, as well as the orders of retrenchment. As common questions of fact and law are involved and arise for consideration, with the consent of the counsel for the parties they were heard together and are disposed of by this judgment.
2. Facts common in all the writ petitions are that the petitioners are employees of the Orissa State Road Transport Corporation (opposite party No. 1) (for short 'the Corporation') serving in various categories and were mostly appointed for efficiency of public transport in the State after the modified Banner Scheme was introduced in the year 1983. According to this scheme which was operated in six districts of the State, namely, Cuttack, Balasore, Mayurbhanj, Ganjam, Puri and Phulbani, the owners of privately operated transport buses who opted to join the scheme were permitted to appoint and engage their own drivers and helpers, whereas the Corporation engaged its own conductors. The entire amount collected as bus fare from passengers through the conductors were taken to the funds of the Corporation. In return, the owners of the privately operated buses were paid hire charges at the rate of Rs. 2.80 per kilometre in respect of standard transport buses and at the rate of Rs. 1.87 paise per kilometre in respect of mini transport buses. For the purpose of efficient operation of this scheme, posts of various categories numbering 460 in all were created and as stated above, the petitioners in most of the writ petitions were appointed to such posts. The modified Banner Scheme of 1983 was further modified in the year 1985 according to which the owners of privately operated transport buses, who joined the Banner Scheme, were permitted to appoint and engage their own Drivers, Conductors and Helpers. According to this scheme, route permits were issued through the Corporation. The ticket books were supplied by the latter. After introduction of the new scheme of the year 1985, the Corporation felt that there was excess staff and so retrenchment was necessary. In order to assess the actual requirement of staff so as to facilitate retrenchment, a Screening Committee was constituted by office order No. 23214 dated July 3, 1985 with the Deputy General Manager (Personnel) as the Chairman and two other senior officers as members. The Committee was directed to submit its report by July 23, 1985. The Committee submitted its report after which the Corporation took the decision for abolition of 313 out of 460 posts of different categories and accordingly, opposite party No. 2 issued office orders No. 44492 dated December 19, 1985 and 44568 dated December 20, 1985 declaring several posts as surplus, abolished those posts and issued orders of retrenchment of the personnel on payment of retrenchment benefits according to Section 25F of the Industrial Disputes Act (hereinafter referred to as 'the Act'), it is averred by the petitioners that the Corporation had made profits and had not sustained any loss. As a matter of fact, its business activities had increased manifold and there was absolutely no necessity of retrenchment of staff. On the other hand, there was justification for their retention. It is further stated that the Corporation maintains many factories inside the organisation for body- building of transport buses, repairing, servicing, fitting and has tyre retreading plants. These factories are equipped with modern machineries and are situate at different zones known as workshops and central workshops. The skilled and unskilled workers of these factories are paid salaries and emoluments out of the common fund of the Corporation. They are all integral and indivisible part of the Corporation and without them its transport business cannot be carried on smoothly, because a large number of vehicles, such as, transport buses, trucks, cars and jeeps are repaired, serviced and maintained in these factories. Thus the Corporation being an 'industrial establishment' as defined under Section 25L of the Act, without compliance with the mandatory provisions of Section 25N(1) (a) and (b) thereof, because prior permission of the appropriate Government was not obtained, the petitioners cannot be retrenched.
3. A few facts in each of the writ petitions are necessary to be stated. In O.J.C. No. 2398 of 1988 the petitioner is the Association of the Accountants and in O.J.C. No. 2399 of 1988 the petitioner is the Association of Ministerial Officers. In both these writ petitions prayer has been made for quashing of Annexures 5, 6 and 7. In O.J.C. No. 2400 of 1988, the Staff Committee of the Central Office is the petitioner and has prayed for quashing of Annexures 4,5 and 6. O.J.C. No. 2401 of 1988 was filed by the Associations of Auditors praying for quashing of Annexures 5, 6 and 7. In O.J.C. No. 2402 of 1988, the Association of Subordinate Officers is the petitioner praying for quashing of Annexures 5, 6, 7 and 7-A. In O.J.C.No.2403 of 1988, the Association of Statistical Employees has prayed for quashing of Annexures 5 and 6. All these service associations champion the cause of all the employees of different categories, some of whom have also filed separate writ petitions challenging the orders of retrenchment. In O.J.C. No. 2412 of 1988, ten Assistant Station Masters who joined service on different dates in the year 1984 have challenged Annexures 6 and 7. In O.J.C No. 2413 of 1988, five Station Masters who similarly joined service on different dates in the year 1984 have challenged Annexures 6 and 7. In O.J.C. No. 2414 of 1988, the petitioner is one Dilip Kumar Das, a Junior Clerk, whose case is somewhat different, because he joined service in the year 1979. He has challenged the order of retrenchment (Annex-ure-8). In O.J.C. No. 2431 of 1988, the petitioner is a Traffic Survey Inspector who was appointed in the year 1984. Presumably, he joined during the same year, although the date of joining does not find place in the writ petition. He has challenged Annexure 1. In O.J.C. No. 2433 of 1988, the petitioners are two other Traffic Inspectors who joined service in the year 1984 and have challenged Annexures 7 and 8. O.J.C. No. 2435 of 1988 was filed by one Bhibu Prasad Mohapatra, an Accounts Clerk who joined service in the year 1983 and his case is not different. He has challenged Annexure 1. In O.J.C. No. 2717 of 1988, thirty-eight Accounts Clerks who joined service on different dates in the year 1984 are the petitioners and they have challenged Annexures 3 and 4. Similarly, the petitioners in O.J.C. No. 2718 of 1988 are thirty-five Assistant Station Masters who joined service in the year 1983. They have challenged Annexures 3 and 4. O.J.C No. 2719 of 1988 was filed by sixty four persons serving as Station Masters, Traffic Inspectors, Junior Typists, Diarists, Audit Assistants and Junior Statistical Assistants, all of whom joined service on different dates in the year 1983.
4. In the course of hearing of the writ petitions, a legal point arose as to whether the provisions of Section 25N of the Act are applicable on the ground that the Corporation is an 'industrial establishment' because of maintenance of several factories inside its organisation as self-sufficient units. But as facts had not been pleaded so as to bring the Corporation within the definition of 'industrial establishment' as contained in Section 25L(a)(i) some of the writ petitions, such as, O.J.C. No. 2398, 2400, 2412, 2413, 2416, 2431 and 2717 of 1988 were amended. Although in the other writ petitions, similar amendments were not brought, yet facts in all the writ petitions being identical, applicability of Section 25N of the Act shall necessarily be taken into consideration, because thereby the opposite parties, who have filed their rejoinders after the amendments and have fully met the legal point factually, shall not in any way be prejudiced.
5. Opposite party Nos. 1 and 2 in their counter and additional counter have denied most of the material averments and have stated that the service associations have no locus standi to file the writ petitions on behalf of the individual employees, because except the State Transport Accounts Association - petitioner in O.J.C. No. 2398 of 1988 which was recognised only for a period of two years, the other service associations were not at all recognised. On the other hand, the recognised union is the State Transport Employees' Federation which has not come forward to ventilate the cause and grievances of the retrenched employees. Opposite party No. 1 was constituted by notification dated April 3, 1974 and started functioning from May 15, 1974. According to the modified Banner Scheme which was introduced in the year 1983, the owners of private buses were to operate under the banner of the Corporation by employing their own Drivers, Conductors, Helpers and/ or other members of staff/employees. The route permits, however, were obtained by the Corporation. The private operators were authorised to collect bus fare through Conductors and other employees/staff and were required to pay only service charges to the Corporation for utilising its bus stands, for getting route permits, for issue of ticket books, way bills and other relevant forms. After introduction of the modified Banner Scheme, the Corporation decided that it was not necessary to retain all the posts, which were created in phases when the original Banner Scheme was introduced because of reduced load of work, a large number of vehicles being off-road and depletion of the total number of vehicles in roadworthy condition. The modified Banner Scheme of 1983 was further revised in the year 1985, whereafter, there was substantial reduction of workload of the Corporation and also for reduction of the number of roadworthy vehicles. In order to make an internal assessment of the workload and the staff position, opposite party No. 1 constituted a Committee which was entirely an internal affair of the Corporation. It was not intended to screen the employees for the purpose of retrenchment. On December 31, 1986 the Corporation abolished 66 vacant posts which were created in the year 1983 and directed reduction of a number of further employees. The Internal Assessment Committee reported retrenchment of 133 employees and the retrenchment was effected in different phases in 1985, 1986 and 1987. The Corporation also abolished 89 other posts. Thus there was a continuous process of retrenchment depending on the workload and other surrounding factors. In the 90th meeting of the Board of the Corporation held on April 3, 1988 a serious view was taken because the Corporation was continuously incurring heavy loss, and by then it had already incurred loss to the extent of Rs. 866.02 lakhs. Us fleet strength had substantially depleted on account of non-replacement of condemned vehicles and large number of vehicles being off-road, because repairs could not be undertaken due to lack of funds. It was also noted with concern that only 525 vehicles were roadworthy and income bearing, while 97 vehicles were being off-road and 80 of them were condemned. There had not also been replacement of condemned vehicles with new ones in 1987 and 1988, On account of the above, a large number of employees had no work, although they were regularly being paid their usual remuneration. Further, loan capital of Rs. 1.94 crores in the year 1987-88 was not received from Government, and such receipt in the year 1988-89 amounting to Rs. 2.12 crores was doubtful. It was, therefore, resolved in the said meeting to retrench surplus employees recruited under the modified Banner Scheme of 1983 and 1985. The decision was neither arbitrary nor illegal and was after due deliberation of several factors referred to above. The resolution for retrenchment was also ratified by the State Government. While making the retrenchment, the principle of applicability of Section 25N of the Act, it is stated that the Corporation is not an 'industrial establishment'. There arc no factories inside the organisation, nor are the petitioners employees of the alleged factories. No manufacturing process is undertaken by any of the installations meant for repair of the vehicles and the component parts thereof. Therefore, the Corporation is not covered by Section 25N of the Act. In any event, it is stated that the petitioners should have approached the proper adjudicatory authority under the Act for relief, and as facts have been disputed, this Court should refuse to entertain the writ petitions because of availability of efficacious alternative remedy.
6. Mr. B. Misra, learned counsel appearing in the writ petitions filed by the service associations contended that the ratio of employees per transport bus has not yet been fixed; the committee appointed by the Corporation for making an assessment of the staff position for the purpose of retrenchment of surplus staff has not yet submitted its report, so the number of surplus staff has not so far been worked out; funds have been spent for repair of 10 off-road transport buses; there has been increase of the number of transport buses and consequent increase of the workload; there has been increase of the income of the Corporation and, therefore, retrenchment of a large number of employees of different categories is arbitrary.
Mr. Ranjit Mahanty, learned counsel appearing for the petitioner in O.J.C No. 2431 of 1988, urged that inside the organisation of the Corporation there are a large number of factories within the meaning of Section 2(m) of the Factories Act engaged in manufacturing process, such as, printing press, bus body building unit, tyre retreading plant, manufacture and repair of spare parts of motor vehicles and workshops for repairing of the transport buses. The Corporation is, therefore, an 'industrial establishment' as defined in Section 25L(a)(i) of the Act. As the Corporation was established by an Act of Parliament namely, 'The Road Transport Corporation Act', according to Section 25L(b)(ii), the Central Government is the appropriate government. The Corporation did not obtain prior permission of the said appropriate government by making an application in that behalf in the prescribed manner stating clearly the reasons for the intended retrenchment and serving a copy of such application simultaneously on the workmen concerned and thereby it violated the mandatory provisions of Section 25N (1) and (2) of the Act. Therefore, the retrenchment is bad according to law.
Mr. C.A.R. Dora, learned counsel appearing in O.J.C. Nos. 2412 and 2413 of 1988, urged that the petitioners were appointed on regular and not on temporary basis. If at all there was any loss, it was on account of inefficiency of the administration for which the employees should not be victimised. In making the retrenchment the principle of' last come first go' has not been followed, because regular employees of the Corporation prior to adoption of the Banner Scheme have been retrenched although some staff of the Banner Scheme appointed later have been retained in service. According to him, if at all there should be retrenchment, the employees appointed under the modified and reshaped Banner Schemes should be retrenched first.
Mr. Jagannath Patnaik, learned counsel appearing in O.J.C. No. 2398 of 1988, supported the contention of Mr. Ranjit Mahanty with regard to non-compliance of Section 25N of the Act.
Mr. Dhuliram Patnaik, learned counsel appearing in O.J.C. No. 2414 of 1988, urged that the petitioner joined as Junior Clerk at Bargarh in the year 1979 when the Banner Scheme had not at all been introduced. His retrenchment keeping his juniors in service is mala fide. Disciplinary proceeding was not drawn up against him and he was not asked to show cause why his services should not be terminated. After rendering ten years' service, he should not have been retrenched arbitrarily.
Mr.Ashok Mohanty, learned cousel appearing for the service association in O.J.C. No. 2403 of 1988 urged that the Corporation should have drawn a distinction between the regular employees and those who were appointed purely on temporary basis after introduction of the Banner Scheme so as to retrench the surplus staff who Wad no work to do on the principle of 'last come first go'.
Mr. K.K. Swain and Mr. A.C. Mohanty learned counsel appearing in O.J.C. Nos. 2433 and 2435 of 1988, adopted the argument advanced by Mr. Dora that regular employees of the Corporation should not have been retrenched while their juniors appointed in the Banner Scheme were retained in service.
7. Mr. Arijit Pasayat, learned counsel (as his Lordship then was), appearing for opposite party Nos. 1 and 2, strenuously urged that the service association petitioners being purely juristic persons and not being individuals aggrieved by the retrenchment orders, have no legal right to agitate the cause of the members of the association under Article 226 of the Constitution of India. It is not for the petitioners, who constitute a gross minority of the large number of employees of the Corporation to say that there has been no loss for the Corporation, after introduction of the Banner Scheme it has earned fabulous income and there is no idle or surplus staff. As a matter of fact, the Corporation has sustained loss over the years to the tune of crores of rupees, and even if for a particular month or for a few months there has been an overall increase of income, it cannot be said that the Corporation is running without loss. It is the Corporation and the Board of Directors, who are the policy makers, to decide whether there are surplus employees sitting idle without work and for their retrenchment, in consideration of income, total staff position and disbursement of emoluments by taking an overall picture of the organisation. When they decide that retrenchment of the surplus staff was necessary, no exception can be taken to it as being arbitrary or illegal because of compliance of Section 25F of the Act, although it may entail loss of job to a large number of persons. He further stoutly disputed the fact that the Corporation is an 'industrial establishment' and it maintains factories inside the organisation except workshops for repair of vehicles which are necessary for a vast orgainsation maintaining a network of transport business throughout the State which, however, cannot by any stretch of imagination be called 'factories' according to law. Therefore, the provisions of Section 25N of the Act are not at all attracted and before making retrenchment it was not necessary to obtain permission from the appropriate government. Alternatively, the facts being disputed as - to whether the Corporation maintains factories or not, the High Court shall not determine the fact which should be left to the proper adjudicatory authority, namely, the Industrial Tribunal. Thus efficacious alternative remedy is available to the petitioners. He concluded by submitting that the retrenchment orders were passed by taking an overall picture and after due deliberation, the action not being in any manner arbitrary and mala fide and the procedure laid down in Section 25F of the Act having been followed, the petitioners should have no grievance.
8. On the contentions raised, the following points fall for consideration:-
(i) Have the service associations locus standi to file and maintain the writ petitions on behalf of the indiviual retrenched personnel?
(ii) Are the petitioners competent to say that there has been increase in the workload of the Corporation, the Corporation has earned profits, and consequently there has been no necessity for retrenchment of the staff?
(iii) Is the Corporation an 'industrial establishment' as defined in Section 25L(a)(i) of the Act, there has been a violation of the mandatory provisions of Section 25N(i) (a) and (b) of the Act, and consequently the retrenchment is bad according to law.
(iv) Is the retrenchment of some old employees who have rendered several years of service under the Corporation proper and legal, while late comers have been retained and consequently there has been no adherence to the principle of 'last come first go'?
(v) Are the writ petitions maintainable because of availability of efficacious statutory remedy under the Act?
Point No. (i):
9. The petitioner service associations are supposed to represent various categories of employees of the Corporation, such as, the ministerial officers, Accounts Officers, Auditors, Statistical Assistants, Station Masters, Assistant Station Masters, Survey Inspectors and Traffic Inspectors, etc. Out of them, the Staff Committee of Central Officers petitioner in O.J.C. No. 2400 of 1988 and the O.S.R.T.C Statistical Employees' Association, petitioner in O.J.C. No. 2403 of 1988 are neither registered under the Trade Unions Act nor recognised by the Corporation. The rest of the service association -petitioners are registered under the aforesaid Act. Further, the State Transport Accounts Association, petitioner in O.J.C. No. 2398 of 1988 was given recognition by the Corporation for a period of two years with effect from August 22, 1986 by letter No. 26755 of the even date. The other service associations were not given recognition. There is no material on record to show that after expiry of the recognition on August 1, 1986, the State Transport Accounts Association was given recognition for any further term. So when the service associations filed the writ petitions on August 2, 1988 none of them stood recognised by the Corporation. Therefore, there may be justifiable ground for the Corporation to say that they do not represent the interest of the several categories of employees they are supposed to represent and for that reason, the Corporation is not bound to have any dialogue with them.
10. Even if none of the service associations is recognised by the Corporation, it is yet to consider if at all they represent the interest of the categories of employees who have been retrenched from service. According to Mr. Pasayal, these service associations are purely juristic persons and not being individuals who have suffered by retrenchment have no fundamental right to invoke Article 226 of the Constitution. It is necessary to examine this aspect of argument with reference to facts and law.
Undoubtedly different categories of employees with varying length of service have been retrenched. For instance, petitioner in O.J.C. No. 2414 of 1988 joined service in the year 1979 and the petitioners in O.J.C. Nos. 2435, 2717, 2718 and 2719 of 1988 joined service on different dates in 1983. On account of length of service, different considerations may arise in 1 respect of their individual cases. The applicability of the principle of 'last come first go' has also relevance particularly in cases of retrenchment. Therefore, each of the petitioners who has been retrenched has separate case of his own.
Learned counsel appearing for both parties cited a large number of decisions in support of their contentions about the service associations representing or not representing the individual members thereof. It is necessary to notice a few of them. In (AIR) 1963 SC 1811, State Trading Corporation Ltd. v. The Commercial Tax Officer, it was held that the State Trading Corporation, a company registered under the Indian Companies Act, is not a citizen within the meaning of Article 19 of the Constitution and being a juristic person cannot ask for the enforcement of fundamental rights granted to citizens under the said Article. An identical view was taken in (AIR) 1965 SC 40, The Tata Engineering and Locomotive Co. Ltd. v. State of Bihar. In (AIR) 1966 SC 828, Gadde Venkateswara Rao v. Govt. of Andhra Pradesh, it was held that a petitioner who seeks to file an application under Article 226 of the Constitution should 'ordinarily' be one who has a personal or individual right in the subject-matter of the petition. A personal right need not be in respect of a proprietary interest. It can also relate to an interest of a trustee. That apart, in exceptional cases, as the expression 'ordinarily' indicates, a person who has been prejudicially affected by an act of omission of an authority can file a writ petition even though he has no proprietary or even fiduciary interest in the subject-matter thereof. The principle laid down in this case brought down the rigour of the principle enunciated in the earlier decisions of the Supreme Court to the extent that usually a real person who is a citizen, in exercise of his fundamental right, can invoke Article 226 of the Constitution in case of any wrong done to him by any act or omission of a public authority. But in exceptional cases even though a person has no proprietary or fiduciary interest of his own in the subject matter, can do so in case he has been prejudicially affected by an act or omission of a public authority by filing a writ petition. In this case, the petitioner was the President of a Panchayat Samiti of a village in Andhra Pradesh and he was the President of a Committee which had taken for itself the task of collecting contributions from villagers for setting up of primary health centre. It was held in the facts and circumstances of the case that although he was not personally interested, he was interested for the village community and being prejudiced by certain order of a public authority had the right to maintain the writ petition under Article 226 of the Constitution. In (1968-I-LLJ-770) C.I. Kannan v. The Employees Slate Insurance Corporation, two writ petitions came up for decision. One was filed by the Employees Federation of the State Insurance Corporation and the other by an employee thereof. All the employees of the State Insurance Corporation staged demonstrations, hunger strike and work to work manual in response to the call by the Federation of the employees. The Regional Director, Madras, initiated a proceeding against one of the employees, placed him under suspension and framed charges. In both the writ petitions challenge was in respect of the disciplinary proceeding against the particular employee and from enforcing disciplinary decisions against other employees for their participation in the agitation. In the above context, it was held by a learned Judge that the writ petition filed by the Federation on behalf of the workers was not maintainable, because each of the persons aggrieved should have filed separate writ petitions. The decisions of the Supreme Court in the case of Gadde Venkateswar Rao v. Govt. of Andhra Pradesh (supra) was not noticed in this decision. In (AIR) 1977 Cal 437, 12 I.C. Bose Road Tenants' Association v. Collector of Howrah, the appellant was a tenants' association which challenged a declaration under Section 6 of the Land Acquisition Act which was preceded by a notification under Section 4 of the aforesaid Act. The individual tenants whose land was sought to be acquired were not the writ-petitioners. In the above context, it was held that the persons who were affected by the acquisition of the lands were the tenants of the premises along with the owner thereof. As they were the persons aggrieved, they could invoke Article 226 of the Constitution of India and not the tenants' association who had no interest in the land and premises sought to be acquired and therefore, was not a person aggrieved. Accordingly, the association 5 had no locus standi to maintain the writ petition. In (1981-I-LLJ-209) Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, it was held that the narrow concept of 'cause and action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. A large body of persons with a common grievance, whether they belonged to a recognised union or not, seeking identical remedies can approach the Court through collective proceedings instead of being driven to an expensive plurality of litigations. In the well known case reported in (AIR) 1982 SC149, S.P. Gupta v. President of India, the meaning of locus standi was extended beyond the horizons and it was held that it is well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinated class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 of the Constitution. A caution was administered by observing that procedure is but a handmaiden of justice and the cause can never be allowed to be thwarted by any procedural technicalities. The Court would, therefore, unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it. If according to the principle laid down in this decision an individual can approach the Court under Article 226 for determinate or undeterminated class of persons, who can individually approach it, an association, whether it has been recognised or not, has locus standi to enforce the fundamental right of such persons. In another well known case reported in (1983-I-LLJ-104) D.S. Nakara v. Union of India, the principle laid down in the case of S.P. Gupta v. President of India (supra) was approved. In (1988-I-LLJ-370) Daily. Rated Casual Labour employed under P & T Department through Bharatiya Dak Tar Mazdoor v. Union of India, an association of daily rated casual labourers employed under the P & T Department approached the Court complaining of disparity of emoluments compared to the regularly employed workmen. The Court intervened and directed government and other authorities to pay wages to the workmen who are employed as casual labourers belonging to several categories of employees in the P & T Department at the rate equivalent to the minimum pay in the pay scales of the regularly employed workers in the corresponding cadres.
11. From the decisions referred to above, it appears that if there is community of interest and a large number of determinate and undeterminate class of persons have suffered a common evil and they are unable to approach the Court individually for enforcing their fundamental right, the service associations representing them have locus standi to approach the Court on their behalf under Article 226 of the Constitution. In these cases, a large number of employees of different categories serving under the Corporation have been retrenched mainly on the grounds that the workload has decreased, there has been loss of income and it was necessary to retrench staff to bring about economy. In our view, therefore, the service associations can maintain the writ petitions.
Point No. (ii)
12. Mr. B. Misra, learned counsel for the service association petitioners, referred to news items printed in a few pamphlets published by the Corporation and meant for its employees and urged that there has been profit in the income of the Corporation on account of the Banner Scheme and so there was no necessity for retrenchment and as such it was neither legal nor bona fide. Mr. Pasayat, on the other hand, urged that a few of the thousands of employees who have filed the writ petitions are not competent to say that the Corporation has earned profits on account of the Banner Scheme, because they have no access to the accounts of income and expenditure. They also cannot have any grievance with regard to retrenchment made bona fide for the benefit of the orgsanisation. The Corporation authorities are competent to say whether it is running at a loss or is earning profit. It has also discretion based on bona fide considerations to examine the staff position from time to time and take decisions as to whether idle and surplus staff should be retrenched or not. If their consideration as such is with the parameters of law, after compliance of the relevant provisions of the Act, the idle and the surplus employees can be retrenched.
13. The Corporation publishes pamphlets, such as, Annexures 13, 14, 15 and 16 known as 'Orissa Rajya Sadaka Paribahan Nigam Patra' meant for the Corporation employees. In the issue of April, 1988 it was stated that the income of the past three months, i.e., January, February and March 1988, had increased by more than rupees twenty lakhs compard to the figures of : the same period of the year 1987. Based on the above information published in the pamphlets with regard to profits earned during the last quarter of the financial year 1987-88 it is impossible for the petitioners who are limited in number to say emphatically that the overall income of the organisation is on the rise and the Corporation is or has been earning profits. Patently, these employees have no access to the final determination of accounts although some of them serving in the accounts department may be dealing with the income and expenditure of particular offices. It is not possible for a few of the Class III or IV employees of the accounts department of the Corporation to say about the profits earned. It is needless to say that it is for the Corporation and its authorities headed by the Managing Director to give an overall picture about the loss or profit or income. When opposite party Nos. 1 and 2 have stated that the Corporation is running at a loss, it is neither possible to refute their statement nor disbelieve their version. We are, therefore, not in agreement with Mr. B. Misra that the Corporation is earning overall profits.
14. In support of his contention that opposite party Nos. 1 and 2 had sufficient good reasons for retrenchment of the idle and surplus staff of the Corporation appointed after introduction of the Banner Scheme and their bona fide action, Mr. Pasayat cited Workmen of Subong Tea Estate v. Outgoing Management of Subong Tea Estate (1964-I-LLJ-333) and Parry and Co. Ltd. v. P.C. Lal, Judge of the Second Industrial Tribunal, Calcutta (1970-II-LLJ-429). In the earlier decision, it was held (pp.338-339):
'The management can retrench its employees only for proper reasons. It is for the management to decide the strength of its labour force, for, the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertaking. In such a case, if any workmen become surplus, it would be open to the management to retrench them. Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons. In all these cases, the management would be justified in effecting retrenchment in its labour force. Thus, though the right of the management to effect retrenchment cannot normally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons. It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour force for no rhyme or reason. This position cannot be seriously disputed.'
In the later decision, the principle laid down in a few earlier decisions including the one referred to above was approved and it was held (Para 12) (pp. 436-437):
'In D. Macropollo & Co. v. Their Employees' Union (1958-II-LLJ-492), this Court held that if a scheme of reorganization has been adopted by an employer for reasons of economy or convenience and it has been introduced in all the areas of its business, the fact that its implementation would lead to the discharge of some of the employees would have no material bearing on the question as to whether the scheme was adopted by the employer bona fide or not. In the circumstances, an industrial tribunal considering the issue relating to retrenchment, should not attach any importance to the consequences of reorganisation. The resulting discharge and retrenchment would have to be considered as an inevitable, though unfortunate, consequence of such a scheme. It also held that where the finding of a tribunal is based on wrong and erroneous assumption of certain material facts, such a finding would be perverse. A recent decision in Ghatge & Patel Concern's Employees' Union v. Ghatge & Patel (Transport) (P) Ltd. (1968-I-LLJ-566) was a case of an employer reorganising his business from conducting a transport business himself through employees engaged by him to conducting it through a contract system whereunder he let out his motor trucks to persons, who, before this change, were his employees. Admittedly, this was done because he could not implement some of the provisions of the Motor Transport Workers Act, 1961. The change over to the contract system was held by the Tribunal not to have been effected for victimising the employees. The employees had voluntarily resigned and hired the employer's trucks on contract basis. It was held that a person must be considered free to so arrange his business that he avoids a regulatory law and its penal consequences which he has, without the arrangement, no proper means of obeying. In Workmen of Subong Tea Estate v. The Outgoing Management of Subong Tea Estate, (supra) this Court laid down the following propositions: (1) that the management can retrench its employees only for proper reasons, which means that it must not be actuated by any motive of victimisation or any unfair labour practice, (2) that it is for the management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work in his industrial undertaking must always be left to be determined by the management in its discretion, (3) if the number of employees exceeded the reasonable and legitimate needs of the undertaking it is open to the management to retrench them, (4) workmen may become surplus on the ground of rationalisation or economy reasonably or bonafide adopted by the management or on the ground of other industrial or trade reasons, and (5) the right to effect retrenchment cannot normally be challenged, but when there is a dispute about the validity of retrenchment the impugned retrenchment must be shown as justified on proper reasons, i.e., that it was not capricious or without rhyme or reason.
In view of the above legal principle, opposite party Nos. 1 and 2 had discretion in making retrenchment of its idle and surplus staff while they made an effort for reorganisation and so long their action was bona fide and they followed the relevant provisions of the Act, the retrenchment cannot be questioned. There is nothing in the record to show that the retrenchments were done with malice in order to intentionally harass the petitioners. Further there is nothing to show that opposite party Nos. 1 and 2 were actuated by mala fide motive for retrenchment of each of the individual petitioners for some reason or other. No such allegations of mala fide, improper motive or unfair labour practice have been made in the writ petitions. Even if there be any, the proper form is the Industrial Tribunal and not the High Court which is not a fact finding authority.
15. In view of the above facts we are of the opinion that opposite party Nos. 1 and 2 are competent to say that the organisation is running at a loss. They can also retrench the idle, surplus and unnecessary staff of the organisation in their discretion which must be bona fide and supported by proper reasons subject to observance of retrenchment benefits as contained in Section 25F of the Act.
Point No. (iii)
16. Mr. Ranjit Mahanty, learned counsel for some of the petitioners, raised a very important and pertinent point which is non-observance of the procedure laid down in Section 25N(i) of the Act. According to him, the Corporation, a huge organisation spread throughout the State, has several units, such as, body building of buses, manufacture of some spare parts, retreading of tyres, printing press and repairing workshops, etc., which are factories within the meaning of Section 2(m) of the Factories Act and so the Corporation is an 'industrial establishment' as defined in Section 25L(a)(i) of the Act. In other words, the Corporation being an 'industrial establishment', the employer, namely, the Corporation could not retrench its employees having continuous service of not less than one year without prior permission of the appropriate government, i.e., Central Government. Mr. Pasayat strenuously urged that there is no proof that the Corporation is an 'industrial establishment'. The fact having been denied by opposite party Nos. 1 and 2, it is for the petitioners to establish by evidence that the character of the Corporation is that of an 'industrial establishment' for having maintained factories which are independent manufacturing units inside the organisation. Therefore, the fact being disputed, the appropriate forum is the Industrial Tribunal to resolve the dispute by giving a verdict based on evidence. Therefore, this point cannot be decided by the High Court.
17. It is necessary to point out that the plea that the Corporation is an 'industrial establishment' was not taken by any of the petitioners. For the first time during argument, Mr. Ranjit Mahanty raised this point. Thereafter, the petitioner in O.J.C. Nos. 2398, 2400, 2412, 2413, 2416, 2431 and 2717 of 1988 amended their writ petitions by making averments so as to bring the Corporation within the definition of an 'industrial establishment'. The amendments were allowed so as to examine the question of retrenchment from all legal aspects. Opposite party Nos. 1 and 2 filed their additional counter refuting the facts. It is necessary to state the gist of the facts introduced by way of amendment and the counter statement thereto.
After establishment of the Corporation, opposite party Nos. 1 and 2 set up factories for repairing, servicing and building body of the buses, as well as for retreading tyres. They were equipped with modern machineries at different places, known as, Station, District, Zonal and Central Workshops. For acquisition of machineries for the factories and for their maintenance, huge amounts inclusive of pay and emoluments of the employees working therein were spent from the funds of the Corporation. Though the factories are located at different places, they constitute an integrated indivisible part of the Corporation, for, without them it was not possible for the Corporation to carry on its transport business smoothly.
In the additional counter filed by opposite party Nos. 1 and 2, it has been averred that the Corporation is an industry and also a commercial establishment, but not an 'industrial undertaking'. No manufacturing process is taken up in any of the units of workshops, although some of the units have taken licences under the Factories Act. The opposite parties do not undertake the work of body building of buses. It is done by outside parties. Although the Corporation has workshops for repairing buses, no work of manufacture of finished goods is carried on there. The petitioners are not employees of the different workshops alleged to be factories. In any event, since they dispute the facts that they are factories within the Corporation and as such it is an 'industrial establishment', this Court should leave the matter to be decided by the proper adjudicatory forum under the Act.
18. Section 25L of the Act, so far as it is relevant to the case, is quoted below:-
'25L. Definitions - For the purpose of this Chapter -
(a) 'industrial establishment' means -
(i) a factory as defined in Clause (m) of Section 2 of the Factories Act, 1948 (63 of 1948);'
Section 2(m) of the Factories Act is also quoted below:-
'2. Interpretation - In this Act, unless there is anything repugnant in the subject or context, -
XX XX XX
(m) 'factory' means any premises including the precincts thereof -
(i) whereon ten or more workers are working, or were working on any day of the preceding twelve months and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or
(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, -
but does not include a mine subject to the operation of the Mines Act, 1952 (XXXV of 1952), or a mobile unit belonging to the armed forces of the Union, a railway shed or a hotel, restaurant or eating place;
Explanation - For computing the number of workers for the purposes of this clause all the workers in different relays in a day shall be taken into account.'
Section 25N contains nine sub-sections and without quoting them all, it can be said in substance that no workman employed in any 'industrial establishment', who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until the workman has been given three months' notice in writing indicating the reasons for retrenchment or the workman has been paid in lieu of such notice wages for the period of the notice. The most important part is that prior permission of the appropriate government must have been obtained on an application made in that behalf before the retrenchment is directed. Sub-sections (3) to (9) provide for the procedure for making the application to the appropriate government, how it should be dealt with, shall be deemed to be final and binding on all parties concerned, remain in force for one year and shall be subject to review. The appropriate government in case of a Corporation established under any law made by Parliament shall be the Central Government according to Section 25L(b)(ii) of the Act. It is not disputed that the Corporation was established under an Act of Parliament, namely, Road Transport Corporation Act, 1950, and so the appropriate government is the Central Government.
19. If, according to the contention of Mr. Mahanty, the Corporation is an 'industrial establishment', then there is no doubt that Section 25N shall be applicable and the retrenchment made patently without the prior permission of the Central Government shall be deemed to be not in accordance with law and struck down. If, on the other hand, as urged by Mr. Pasayat, the Corporation is not an 'industrial undertaking', the aforesaid provisions shall not be applicable. So, the principal point which now falls for consideration is whether the Corporation is an 'industrial establishment'. As already referred to above, while some of the petitioners contend that it is an 'industrial establishment', the fact has been substantially denied by opposite party Nos. 1 and 2.
20. The main ingredient of a factory as defined in Section 2(m) of the Factories Act is that some manufacturing process must be carried on in it either with or without the aid of power, as the case may be, where in the former case ten or more workers work, and in the latter case twenty or more workers work during the past twelve months. What is manufacturing process is also defined in Section 2(k) of the Factories Act and is reproduced below:-
'(k) 'manufacturing process' means any process for -
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to use, sale, transport, delivery or disposal, or
(ii) pumping oil, water, sewage or any other substance; or
(iii) generating, transforming or transmitting power; or
(iv) composing types for printing, printing by letter-press, lithography, photogravure, or other similar process or book-binding; or
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels, or
(vi) preserving or storing any article in cold-storage;'
'Worker' has also been defined in Clause (1) as follows:-
'(1) 'worker' means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or connected with, the manufacturing process, or the subject of the manufacturing process but does not include any member of the armed forces of the Union.'
In 1980 Tax LR 283 (Cal), Commr. of Income Tax, West Bengal-V, Calcutta v. Mangolia Dairy Products (India), Calcutta, it was held that the fact that a licence is taken or applied for under the Factories Act is not conclusive to establish that the undertaking concerned is a factory. It has to be determined if the unit concerned falls within the definition of 'factory' in the statute. This decision was cited by Mr. Pasayat in support of his contention that even if the Corporation has taken some licences under the Factories Act, yet the workshops are not factories connected with manufacturing process. In (1957-I-LLJ-280), In re: A.M. Chinniah, Manager, 786, Sangu Soap Works Kattumavadi Road, Arantangi, it was held that it will depend upon the circumstances of each case whether a particular business carried on comes within the definition of 'manufacturing process'. To constitute a manufacture there must be a transformation. Mere labour bestowed on an article even if the labour is applied through machinery, will not make it a manufacture, unless it has progressed so far that transformation ensues, and the article becomes commercially known as another and different article. It was further held that those workers who actually work for the manufacture of goods are said to be workers in the factory and not all. For instance, in that case a carpenter preparing packing cases for manufactured soaps was said to be working in the actual process of manufacture or engaged in a kind of work incidental to or connected with the subject of manufacturing process for the soaps being sent outside for sale. But a worker found holding a tin and standing outside painting a sign-board was not considered to be a worker in the factory, because his work was not directly connected with the process of manufacture or any kind of work incidental thereto. In (1961-I-LLJ-38) Ramlanshan Jageshar v. Bombay Gas Company Ltd., it was held by a bench that broadly speaking the definition of 'worker' in the Factories Act includes persons who are employed in any manufacturing process or any other kind of work incidental to, or connected with, a manufacturing process or the subject of manufacturing process. A person employed by a gas manufacturing and supply company for digging and excavating trenches for laying pipes outside the factory premises for transporting and supplying the gas to the consumers could not be considered to be person engaged in any work connected with the subject of manufacturing process. In 1983 Lab IC. 412 (Punj & Har), Bhag Singh v. Employees' State Insurance Corporation, Chandigarh, it was held that the business of sale of petrol and servicing and repairing of cars etc. does not involve any 'manufacturing process' and, therefore, will not be a 'factory'. The word 'repairing' has to be read along with the words 'any article or substance with a view to its use, sale, transport, delivery or disposal'. The pumping envisaged in the relevant provision is intended to cover pumping of oil from beneath the earth as in refineries etc. In (1986-I-LLJ-490), S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Limited, quoting with approval the tests laid down in (1960-I-LLJ-1), The Associated Cement Companies Ltd., Chaibasa Cement Works, Jhinkapani v. Their Workmen, it was held by the Supreme Court that even if the undertakings are spread over different places, yet if there is functional integrality and interdependence or community of financial control and management, in that event the undertakings taken together shall 5 be an industrial establishment.
21. In view of the principles laid down in the aforesaid decisions, the following questions fall for consideration :-
(i) Whether different types of workshops atdifferent places maintained by the Corporation are factories dealing with the process of manufacture, and for that reason the Corporation being an integrated whole is an industrial undertaking; and
(ii) If the petitioners are workmen connected with the process of manufacture in the factories.
It has been disputed by the Corporation that it has repairing units (workshops) in several places. It has also been averred that there are tyre retreading plants at the workshops at Cuttack, Jeypore and Rourkela, etc. There is also a press at Cuttack. It is further admitted that licences have been obtained for some of the central workshops (vide additional counter affidavit filed by opposite party Nos. 1 and 2 on February 7, 1989). In view of this admission, it is for consideration whether it shall be deemed to have been admitted that there are factories within the : Corporation. For this purpose, the guideline can be obtained from the definitions of 'factory' and 'manufacturing process' appearing in Section 2(m) and 2(1) respectively. Broadly speaking, according to the definition of 'factory', a manufacturing process must be carried therein either with or without aid of power. According to the definition of 'manufacturing process', altering, repairing, oiling, washing, cleaning of any article with a view to its use shall amount to manufacturing process. Further, printing of any material in a printing press will also be a process in manufacturing an article. It has thus been specifically admitted by opposite party Nos. 1 and 2 that there are workshops for repairing and servicing the transport buses. There are also plants for retreading tyres, which are integral components thereof. There is also a printing press to produce ticket books and other materials, such as, forms and registers to be maintained in the offices. Without these units, the transport business cannot be carried on. So it cannot be gainsaid that there are factories within the Corporation engaged in manufacturing process. Although the factories may be located in different Stations and Zones, they constitute an integrated whole and form specific units of the Corporation so as to make it an 'industrial undertaking' within the meaning of Section 25L of the Act.
This finding, however, will not solve the real problem of the petitioners, unless it is shown that they are workmen in the factories. The association petitioners represent ministerial officers, accounts clerks, auditors, subordinate officers, statistical employees and the individual petitioners are Station Masters, Assistant Station Masters, Traffic Survey Inspectors, Traffic Inspectors, Accounts Clerks, Diarists, Audit Assistants, L.D. Assistants, Statistical Assistants and Junior Typists, etc. On the face of it none of them seems to be a worker in the factories. Yet it is for consideration if they are workmen within the definition of Section 2(s) of the Act, according to which, 'workmen' means, any person employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work. Therefore, broadly speaking, all the individual petitioners working under the Corporation, which is indisputably an industry, are workmen within the definition of Section 2(s) doing manual, technical, operational, clerical and supervisory work. For instance, the drivers do either technical skilled or operational work, the Station Masters and Traffic Inspectors do supervisory work and the rest, such as, the Audit Clerks, Lower Division Clerks, etc. do clerical work. Section 25N of the Act is applicable when there has been retrenchment of workmen in an 'industrial establishment' and so, necessarily the petitioners are workmen governed by the aforesaid section.
Our conclusion, therefore, is that the Corporation being an 'industrial establishment', the orders of retrenchment without compliance of the mandatory provisions of Section 25N of the Act are unsupportable. Point No. (iv)
22. After the finding recorded in respect of point No. (iii), it is no longer necessary to consider this point. Yet, it is found from the records of O.J.C. No. 2414 of 1988 that petitioner Dilip Kumar Das joined as a Junior Clerk on January 1, 1979 under the Orissa State Commercial Transport Corporation Limited. After the said establishment was liquidated, he was appointed under opposite party Nos. 1 and 2 on selection by letter dated April 9, 1984, although the nature of appointment seems to be afresh and on temporary basis. He was relieved from the Orissa State Commercial Transport Corporation Ltd. on April 21, 1984 and joined at Bargarh as Junior Clerk on April 23, 1984. Therefore, though he served in two different establishments, his service is almost continuous from January 1, 1979. Any way, for the purpose of retrenchment the salutary principle is 'last come first go'. No factual investigation is possible in this Court in exercise of writ jurisdiction to go into the questions as to whether persons appointed earlier have been retrenched while those appointed later have been retained in service. Such an examination is possible only when factual evidence is adduced before the adjudicating authority. Therefore, no decision on this point is warranted.
Point No. (v)
23. One of the main grounds canvassed by Mr. Pasayat was that the petitioners had efficacious remedy available to them for raising an industrial dispute and so the High Court should not invoke its writ jurisdiction. Indisputably the general settled principle is that availability of such remedy bars High Court's jurisdiction. In support of this principle there are a large number of decisions of the Supreme Court, as well as other High Courts, but nevertheless, a few relevant decisions may be referred to. In (AIR) 1961 SC 1506, A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, it was held (at p. 1509 of AIR):
'The rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion.'
It was further held (at pp. 1508 and 1510 of AIR):
'The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Article 226, or in any event not grant any relief to such petitioners, cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court.'
In (1969 Lab IC 1282), Duryodhan Naik v. Union of India, it was held by a Bench of this Court(at p. 1287 of Lab IC):
'The existence of an alternative remedy does not per se operate as an absolute legal bar to the existence of the jurisdiction of the High Court under Article 226 of the Constitution, although that should be relevant circumstance which Courts have to bear in mind in deciding whether relief under the extraordinary jurisdiction should or should not be granted. Where the alternative remedy provided is neither effective nor efficacious, dictates of justice demand that in appropriate cases the remedy under Article 226 should not be denied to the aggrieved person. The question as to whether or not the alternative remedy in a given case is equally adequate, efficacious and speedy must naturally depend upon the peculiar facts and circumstances of that case and no rigid and inflexible rule can be formulated to cover every case. If the matters in controversy would require investigation of questions of fact, such an investigation cannot obviously be undertaken in a proceeding under Article 226.'
In (1979-II-LLJ-363), Mahabir v. D.K. Mital, a Bench of the Patna High Court held (p. 368):
'Alternative remedy means a remedy which is available to the petitioner concerned and which is not dependant on the opinion of any other authority. In case of industrial dispute it is up to the appropriate government to refer or not to refer it for adjudication to an Industrial Court. Therefore, remedy of adjudication before Industrial Court does not amount to an alternative remedy so as to bar maintainability of writ application.'
In (1981-II-LLJ-174), Malkhan Singh v. Union of India, a Bench of the Delhi High Court held that no one can say whether the appropriate government will make reference under Section 10 of the Act in course of an industrial dispute. Therefore, it cannot be said that it is an efficacious alternative remedy. In (1985-II-LLJ-481), H.S. Achutha v. The Chief Engineer (Chakra) Karnataka Power Corporation Ltd., the Karnataka High Court held that even if Section 10 of the Act provides alternative remedy, yet the Constitution does not impose any factor of exercise of jurisdiction under Article 226 in an appropriate case. Last of all, we would again make reference to the case of S.G. Chemicals and Dyes Trading Employees Union v. S.G. Chemicals and Dyes Trading Ltd., (supra) in which after adjudication by the Industrial Tribunal and without first approaching the High Court the appellants approached the Supreme Court direct. It was held in that case that 84 workmen had been thrown out of employment and could ill afford the luxury of fighting from court to court and that some of the questions arising in the case were of considerable importance both to the employers and the employees. Therefore, it was considered to be a fit case for grant of special leave to appeal.
In these writ petitions, retrenchment of a large number of employees of the Corporation is involved. They have practically been thrown out of employment without compliance of the mandatory provisions of Section 25N of the Act. In these days of competition and high prices, employment is scarce. Retrenchment would mean loss of sustenance and starvation not only for the petitioners, but also the members of the family. They cannot be said to be so affluent so as to indulge in the luxury of moving court after court praying for appropriate relief. If they are driven to the Industrial Tribunal saying that the alternative remedy for them is available there, they are first to accept the orders of retrenchment and so out of employment and failing reconciliation, move the State Government for making a reference under Section 10 of the Act. If the State Government would make a reference, then time will be spent before the Industrial Tribunal and in any case there is every likelihood of their being driven again to this Court when, a long time after, practically all of them would have undergone total deprivation in the absence of employment and sustenance. That apart, we have only taken into consideration the undisputed facts and established law. In the light of the facts stated above, we are of the view that the writ petitioners cannot be thrown out of employment on the ground of availability of alternative remedy.
24. We have endowed our best of considerations and judgment to the facts of the case and the points of law involved, because, on the one hand, the Corporation, which is running at a loss year after year, is anxious to reorganise itself so as to bring financial discipline and economy and on the other, fate of a large number of employees hang in the balance. We have come to the conclusion that according to law, now existing, proper procedure has not been followed so as to make the retrenchment. We do not hereby mean that the Corporation cannot at all retrench its employees. On the other hand, we have found following the decisions of the Supreme Court that the Corporation has authority to retrench employees, but it should do so in accordance with law discussed by us.
25. In the result, the writ petitions succeed. In O.J.C. No. 2398 of 1988 Annexure 7, in O.J.C. No. 2399 of 1988 Annexure 7, in O.J.C. No. 2400 of 1988 Annexure 6, in O.J.C. No. 2401 of 1988 Annexure 7, in O.J.C. No. 2402 of 1988 Annexures 7 and 7A, in O.J.C. No. 2403 of 1988 Annexure 6, in O.J.C. No. 2412 of 1988 Annexure 7 so far it relates to the petitioners, in O.J.C. No. 2413 of 1988 Annexure 8 so far it relates to the petitioners, in O.J.C. No. 2414 of 1988 Annexure 8 so far it relates to the petitioner, in O.J.C. No. 2431 of 1988 office order No. 24818/OSRTC dated July 31, 1988 so far it relates to the petitioner, in O.J.C. No. 2433 of 1988 Annexure 8 so far it relates to the petitioners, in O.J.C. No. 2435 of 1988 office order No. 24818/OSRTC dated July 31, 1988, in O.J.C. No. 2717 of 1988 Annexure 4 so far it relates to the petitioners, in O.J.C. No. 2718 of 1988 Annexure 4 so far it relates to the petitioners and in O.J.C No. 2719 of 1988 Annexure 4 so far it relates to the petitioners are hereby quashed. Parties shall bear their own costs.
A.K. Padhi, J.
I agree.