Judgment:
M.H.S. Ansari, J.
1. The instant writ application is filed by the petitioner praying as under;
'A Rule Nisi upon the respondents to show cause as to why an order and/or direction and/or writ in the nature of Mandamus should not be issued commanding the respondents to forthwith withdraw and/or cancel the impugned order of dismissal from service and to forebear from giving any effect or further effect to the same and/or acting in any manner prejudicial or detrimental to the rights and interest of the petitioner concerning his livelihood and to reinstate the petitioner in service with all back wages.'
2. By the order impugned in the instant writ application being annexure 'E', the petitioner was informed that he is dismissed from service. The impugned order recites that a domestic enquiry into the charge of unauthorized absence was conducted by a duly appointed enquiry officer though proper notice of enquiry was issued to the petitioner by registered post and also displayed in Colliery Notice Board. Petitioner did not attendthe same and, therefore, enquiry was conducted ex-parte after giving sufficient opportunity thereof to the petitioner. It is further stated therein that the findings of the enquiry officer have been accepted wherein the charge levelled against the petitioner have been proved,
3. The case as set out by the petitioner in the writ application is that in the month of April. 1999, petitioner went to his village for the marriage ceremony of his daughter for which leave was granted till 16th March, 1999. Petitioner fell ill and no information could have been given to the authority concerned by the petitioner as there was no elderly person in the family but when petitioner got some relief from the ailment, he informed the authority concerned through registered post, copy of acknowledgment receipt is said to be annexure 'B'. Even thereafter, petitioner extended the period and had to send further information to the Manager of Colliery for extension of leave of about 30 days. After being cured, petitioner submitted his joining letter to the Colliery on 1st April, 1999 but on 7th April. 1999 petitioner received a charge sheet. The charge levelled against the petitioner was that he absented himself from duties without any information or without any authorised leave from 17th March, 1999 to 7th July, 1999 which constitutes misconduct under sections 17(a)(d) and 17(i)(n) of the Standing Order. The petitioner thereafter came to know that certain orders have been passed and to collect the same, petitioner went to the Office of the Manager on 10th January, 2000 when the order of dismissal was made over.
4. It is the contention of Mr. S. Ganguly, learned advocate for the petitioner that the entire action is illegal and void. The impugned order is passed in utter violation of the principles of natural justice in that the petitioner was not served with the notice of enquiry, which was conducted, ex-parte. No copy of the enquiry officer's report was furnished to the petitioner.
5. On behalf of the respondents, Mr. Alok Banerjee, contended that the Instant writ application ought not to be entertained by this Court as the petitioner has efficacious alternative remedy under the Industrial Disputes Act. A preliminary objection has thus been taken on behalf of the respondents as to the availability of alternative remedy and for that reason, the Court should not exercise the discretion to entertain the instant writ application.
6. Mr. Ganguly, learned advocate for the petitioner, however, relying upon several judgments of the learned single Judges of this Court as also of the Supreme Court contended that the petitioner cannot be denied the right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The impugned orders are palpably illegal and in utter violation of principles of natural Justice and the petitioner should not, therefore, be driven to avail the procedure under the Industrial Disputes Act.
7. It is true that until Insertion of section 2A of the Industrial Disputes Act. 1947 in 1965, it has been laid down that any individual dispute affecting a workman cannot be per se an industrial dispute but can become one if It was espoused by a trade Union or by substantial number ofworkmen of the establishment. Reference in this connection may be made to some of the cases decided by Supreme Court viz (1) Central Provinces Transport Service Ltd Nagpur v. Raghunath Gopal Patwardhan, : (1957)ILLJ27SC , (2) Workmen of Dimakuchi Tea Estate v. Dimakuchi Tea Estate, : (1958)ILLJ500SC , (3) Workmen v. Dharmapal Premchand, : (1965)ILLJ668SC . That brought in legislative intervention through Industrial Disputes 9 Amendment) Act 1965 w.e.f. 1.12.1965 and section 2A was inserted which reads as under;
'Section 2A: Dismissal etc., of an Individual workman to be deemed to be an industrial dispute:- Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an Individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an Industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.'
8. The aforesaid provision took away the foundation of aforesaid decisions and gave extended meaning to the expression as 'Industrial Dispute.' Section 2A of the Act of 1947 refers to dispute relating to dismissal, retrenchment or otherwise termination of services of an Individual workman, which are deemed to be Industrial Dispute whether such dispute is espoused by a Union or number of workmen or not. Thus individual dispute of the nature falling under section 2A, also came within the purview of 'Industrial Dispute' as defined under section 2(k) is to be treated as 'Industrial Dispute' for all purposes. In this connection. It may be useful to refer to a judgment of this High Court in Tilagarh Jute Factory Com. Ltd. v. Sriram Tewari, reported in 1979 Lab IC 513, wherein the Court though in a different context declared as under:
'The question whether the Industrial Tribunal can interfere with an employer's right to terminate the services of a workman in exercise of the employer's contractual right came up before the Tribunals and also before the Supreme Court. Such a right of the employer to terminate the services of a workman in accordance with the contract between them has been recognized but it has been laid down in Assam Oil Co. Ltd. v. Its Workmen. : (1960)ILLJ587SC that if the contract gives the employer the power to terminate the service of his employees after a month's notice or subject to some other conditions it would be open to him to take recourse to the said term or condition and terminate the services of the workman but when the validity of such termination is challenged in industrial adjudication it would be competent to the Industrial Tribunal to enquire whether the Impugned termination has been effected in the bona fide exercise of the power conferred by the contract. This was also the decision in Chartered Bank, Bombay v. Chatered Bank Employees' Union, : (1960)IILLJ222SC . The words 'employment or non-employment' appearing in clause (k) are of the widest amplitude and they make the definition of industrial dispute thoroughly comprehensive. Further the words 'connected with' also appearing there instead of, in any restricting the scope of what is industrial dispute, widen it. According to the decision in Western India Automobile Association v. Industrial Tribunal, any dispute 'connected with' employment or non-employment would ordinary cover all matters that require settlement between workmen and employers, whether those matters concerned the causes of their being out of service or any other question. The question whether a person has been superseded or not, whether he was entitled to promotion or not, whether a person was wrongfully retrenched and whether there was wrongful refusal to re-Instate are all questions which would be comprehended within the meaning of the word 'employment or non-employment' appearing in clause (k) [vide Upper Doab Sugar Mills Ltd., v. State of U.P. (1962) 1 Lab LJ 1 (All)]. Western India Automobile Association v. Industrial Tribunal (supra) and Fodders Lloyds Corporation (P) Ltd. v. Lt. Governor, Delhi, : AIR1970Delhi60 . In the present case, as already pointed out, if the stand taken by the workman be found to be not correct the workman was lawfully required to retire on August 1, 1977. In view of the principles discussed above ft cannot but be held that the question raised in the present suit is of the nature of an Industrial Dispute, for, the question is one connected with the employment or non-employment of the workman. Further, as already pointed out, though this is an individual dispute not espoused either by the Union or a substantial number of workmen it would be an industrial dispute within the meaning of section 2A.'
9. Thus not all disputes of individual nature fall within the purview of an Industrial Dispute as defined under section 2(k) read with section 2A of the Industrial Disputes Act, 1947. The disputes relating to discharge, dismissal, retrenchment or otherwise, termination of service, come within the purview of an Industrial Dispute. Such a dispute would be an Industrial Dispute though not sponsored by any other workman as espoused by the Union.
10. In the instant case, the grievance of the petitioner is against an order of dismissal. Admittedly, petitioner is a workman. The dispute is an industrial within the meaning of the Industrial Disputes Act 1947. The petitioner thus has efficacious alternative remedy under the provisions of the Industrial Disputes Act before the forum created by and under that Act.
11. In Rajasthan State Road Transport Corporation v. Krishna Kant, : (1995)IILLJ728SC , the Supreme Court laid down various guidelines when the workman should be relegated to raise the dispute before the appropriate Court. It is relevant to mention the two tests laid clown in this decision:-'Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946-whlch can be called 'sister enactments' to Industrial Disputes Act--And which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute Industrial Disputes within the meaning section 2(k) and section 2A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to Civil Court is open. It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reasons that access to theforum depends upon a reference being made by the appropriate Government......'.
12. The contention of Mr. Ganguly that the impugned orders are mala fide and passed in utter violation of principles of natural justice. The enquiry is vitiated on similar grounds of violation of principles of natural justice in that the ex-parte enquiry has been conducted. The show cause notice before removal from service being mandatory has not been issued and thereby the Impugned order is violative of principles of natural justice. On the other hand, the impugned order, annexure 'E' prima facie shows that a charge sheet was issued for unauthorized absence of the petitioner and domestic enquiry was conducted. Opportunity was afforded to the petitioner to participate at the said enquiry but the petitioner failed to avail of the same. The Impugned order further states that the Chief General Manager has gone through the enquiry report and connected papers/documents and the findings of the Enquiry Officer and has also concurred with the findings on the basis of evidence recorded in the enquiry. The charges levelled against the petitioner have been sufficiently proved. The Chief General Manager has, therefore, considering gravity of the charges ordered dismissal from service.
13. There are thus various questions of fact which need to be tested. In the opinion of this Court, the matter can be examined by the appropriate authority constituted under the Industrial Disputes Act. 1947.
14. In Delhi Cloth and General Mills Company v. Ludh Budh Singh, : (1972)ILLJ180SC , the Supreme Court laid down following principles where the Tribunal itself can take into consideration the evidence which may be adduced by the parties before it:
'(1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightaway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on merits, and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry, as the employer himself does not rely on it.
(2) If a domestic enquiry had been held, it is open to the management to reply upon the domestic enquiry held by it, in the first instance, and alternative and without prejudice to its pica that the enquiry is proper and binding, simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn. If a domestic enquiry had been held. It is open to the management to reply upon the domestic enquiry held by it, in the first Instance, and alternatively and without prejudice without anything more, that the management has given up the enquiry conducted by it.
(3) When the management relies on the enquiry conducted by, and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper, it is the duty of the Tribunal in the first Instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives.It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. (4) When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However elaborate and cumbersome the procedure may be, under such circumstances, is open to the Tribunal to deal. In the first instance, as a preliminary issue the validity of the domestic enquiry.'
15. In United Planters Association of Southern India v. K.G. Sangameswaran, : (1997)ILLJ1104SC , It was again emphasized that if the domestic enquiry held by the employer is defective, deficient, incomplete or not held at all, the Tribunal, instead of remanding the case to the enquiry officer for holding the enquiry denovo, would itself require the parties to produce their evidence so as to decided whether the charges, for which disciplinary action was taken against the employee, were established or not.
16. In the light of the above discussions, it must be held that the petitioner has an efficacious alternative remedy under the Industrial Disputes Act, 1947 and the petitioner must be relegated to avail of the said remedy before invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
17. In view of the Judgments of the Supreme Court referred to supra, It is not considered necessary to refer to the various decisions cited by Mr. Ganguly, learned counsel for the petitioner, also for the reason that a Division Bench of this High Court in General Manager, Mugma Area, Eastern Coalfields Ltd. v. Shri Gopal Chandra Mondal & Ors. reported in 1998(2) CLJ 109 considered the question whether the dispute should be decided by the writ Court or should be left to be decided by the forum created under the Industrial Disputes Act. The Division Bench held as under;
'......In our view, where a petitioner seeks relief againsttermination on the ground of the violation of section 25F of the Industrial Disputes Act he should approach the forum created under that Act and not the writ Court on the ground that the termination also amounts to violation of Article 21 of the Constitution.'
18. In coming to the aforesaid conclusion, the Division Bench in Copal Chandra Mondal's case, (supra) expressed agreement with the view of the Full Bench decision of the Allahabad High Court in Chandrama Singh v. U.P. Co-operative Union, 1991 FLR 478. It would be appropriate to extract the relevant portion of the Division Bench Judgment as several judgments of the Supreme Court have been noticed therein.
'.......The question before Full Bench was whether a writ petitionunder Article 226 of the Constitution of India should or should not be entertained by the High Court where the cause of action for the petition emanates from the retrenchment of a workman in violation of the provisions of section 25F of the Industrial Disputes Act, 1947 or section 6N of the U.P.Industrial Disputes Act notwithstanding the fact that an alternative remedy under the aforesaid Acts may be available to the petitioner. The Court took note of the fact that the Industrial Disputes Acts provide machinery and procedure for investigation and settlement of Industrial Disputes Including the disputes regarding retrenchment and considered the various decisions on the question whether in a situation where equally efficacious alternative remedy is available, should a petition under Article 226 of the Constitution be entertained? Note was taken of (2) K.K. Srivastava v. Bhupendra Kumar Jain, : AIR1977SC1703 where it was held that it is well settled law that while Article 226 of the Constitution confers wide power on the High Court there are equally well settled limitations which the Supreme Court has repeatedly pointed out on the exercise of such power, one of them being that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. In (3) Bar Council of Delhi & Anr. v. Surjeet Singh & Ors., : [1980]3SCR946 the Supreme Court said that if the alternative remedy fully covers the challenge then it is only that remedy and that remedy alone that must be restored to. Again, it was pointed out in (4) Gujarat University v. N. U. Rajguru & Ors., : [1988]1SCR899 that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities, a petitioner cannot be permitted to abandon that machinery and invoke the jurisdiction of the High Court under Article 226 of the Constitution. The Full Bench after noticing all these decisions ruled that where a complete machinery/remedy for claiming relief is provided in a statute and such machinery and remedy fully covers the grievance of the petitioner then, unless, extraordinary or exceptional circumstances exist or the machinery/remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be in-adequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 228 of the Constitution of India for redressal of the grievance by the petitioner. We are in respectful agreement with the view taken in this decision that where a remedy is available before a forum created under the Industrial Disputes Act, the dispute should be adjudicated by that forum alone and the writ Court should not entertain a petition in exercise of the extraordinary jurisdiction under Article 226 of the Constitution.'
19. In Nirmalendu Roy v. Steel Authority India. & Anr. reported in 2000(2) CLJ 283, similar question was considered and the Division Bench to which I was a Member upon consideration of the various judgments of the Supreme Court as also of this High Court declared as under:
'Keeping in view, the aforesaid decisions, it must be held that where the petitioner is a workman within the meaning of the Industrial Disputes Act and the order impugned is one relation to dismissal or discharge the appropriate remedy is not by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India but under section 2A of the Industrial Disputes Act.'
20. It must, however, be staled that in the peculiar facts of that case, the matter was remitted back to the disciplinary authority with the clarification that if the petitioner is aggrieved by any order that may be passed by the disciplinary authority, it shall be open to him to avail suchremedies as are open to him in law before the authorities under the Industrial Disputes Act, 1947. It must also be stated here that in the Steel Authority of India's case, the Divsion Bench was considering the order of the learned single Judge whereby the Impugned order of termination was quashed by the learned single Judge. In the Instant case, objection has been taken at the thresh hold.
21. It is now well settled that the grant of relief under Art. 226 of the Constitution by the High Court is discretionary. The discretion so vested in the Court, however, has to be exercised judicially. One of the self-imposed rules is that where an efficacious alternative remedy is available, the aggreived party must avail of the same before invoking the jurisdiction of this Court under Art. 226 of the Constitution of India, unless there are exceptional circumstances. In the instant case, no exceptional circumstances have been established.
22. For the reason aforesaid, I am not inclined to entertain the writ application, the same is dismissed with liberty, however, to the petitioner to avail of the remedy before the forum created under the Industrial Disputes Act, 1947 and if so advised. In the event the petitioner avails of such remedy, it is hereby clarified that nothing contained in this order shall prejudicially affect the petitioner and the matter shall be decided upon its own merits un-influenced by any observation or statement contained in this judgment and order.
There shall, however, be no order as to costs.
23. Petition disposed of