Dismissed

Meerajuddin v. the Managing Director U.P. State Handloom Corporation and Ors.

Allahabad HC15 Nov 2019SPLA/807/2005

Case brief

AI extract

What is this about?

A Special Appeal challenging a Single Judge's dismissal of a writ petition regarding retrenchment was dismissed. The Court held that statutory rules of a government company do not preclude application of industrial dispute laws and that the existence of an alternative remedy under the Industrial Disputes Act barred writ jurisdiction.

What the court decided

AI extract

Meerajuddin Vs the Managing Director U.P… — Labour and Industrial Disputes | Allahabad HC (2019)

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Reserved on 15.05.2019 Delivered on 15.11.2019

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Court No. - 34

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Case :- SPECIAL APPEAL No. - 807 of 2005 Appellant :- Meerajuddin Respondent :- The Managing Director U.P. State Handloom Corporation And Ors. Counsel for Appellant :- W.H. Khan,J.H. Khan Counsel for Respondent :- S.N. Singh

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Hon'ble Sudhir Agarwal, J. Hon'ble Virendra Kumar Srivastava, J.

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(Delivered by Hon'ble Sudhir Agarwal, J)

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Heard Sri W. H. Khan, Senior Counsel assisted by Sri J. H. Khan, learned counsel for appellant.

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This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as “Rules, 1952) has arisen from judgment dated 29.07.2004 passed by learned Single Judge dismissing Writ Petition No.19421 of 2004 and order dated 05.05.2005 dismissing Review Petition No.176594 of 2004.

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Facts in brief, giving rise to present appeal as pleaded by appellant are that he was appointed as 'Production Clerk' in physically handicapped quote in U. P. State Handloom Corporation Limited, Kanpur Nagar (hereinafter referred to as 'UPSHCL') by order dated 23.02.1990 passed by Managing Director, UPSHCL. His appointment was on probation of one year in pay scale of Rs.360-550/-. Appellant was regularized on aforesaid post after completion of period of probation and placed in the scale of Rs.950-1500/- on the post of 'Production Clerk'. Due to continuous loss sustained by UPSHCL, it rehabilitated its establishment and retrenched a large number of employees to reduce its Human Resource to 599. Consequently a list of employees who were retrenched with effect from 15.04.2004 was published, as contemplated under Section 6 P read with Rules 42 (2) of U. P. Industrial Disputes Act, 1947 (hereinafter referred to as “U. P. Act, 1947”). Employees were directed to collect their total remaining dues with other permissible allowances,

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compensation etc. by 15.04.2004 from Headquarter of UPSHCL. Aforesaid notice mentioned name of appellant also. Notice was published in daily newspaper “Amar Ujala” on 12.04.2004. Appellant made representation on 14.04.2004 requesting Managing Director, UPSHCL to consider appellant for employment on any other post in the scale of Rs.950-1500/-, if not required on the post of “Production Clerk” but allow him to continue. Further a reminder was submitted by appellant on 24.04.2004. Appellant thereafter preferred Writ Petition No.19421 of 2004 challenging order of retrenchment/termination on the ground that he was a permanent employee and could not have been discharged from service except in accordance with procedure prescribed under U. P. State Handloom Corporation Limited (Officers and Staff) Service Rules, 1981 (hereinafter referred to as “Rules, 1981”).

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Writ petition was dismissed vide order dated 29.07.2004 on the ground of alternative remedy. Being aggrieved by judgment, appellant preferred Special Appeal No.1132 of 2004 which was dismissed vide judgment dated 02.09.2004, though liberty was given to appellant to file review application. Order of Division Bench reads as under :

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“This special appeal has been filed against the judgment and order of the learned Single Judge dated 29/7/2004, wherein his writ petition has been dismissed following the judgement in Writ Petition No.28354 of 2004.

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Mr. Khan, Advocate, learned counsel for the appellant submits that petitioner's case was entirely different as his services were governed by the statutory rules and, therefore, he could not have been relegated to the Labour Court under the provisions of the Industrial Disputes Act, 1947.

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Shri S. N. Singh, learned Standing Counsel has vehemently opposed the appeal contending that if the petitioner is so aggrieved, he ought to have filed a review petition before the same Bench, but even if the contention raised by Shri Khan

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has some force it is not a ground for maintaining the appeal. In support of his contention Mr S. N. Singh has placed heavy reliance upon the judgement of the Hon'ble Supreme Court in State of Maharashtra Vs. Ramdas Shrinivas Nayak & Anr, A.I.R. 1982 SC, 1249, in which the Hon'ble Supreme Court has held that the appellate court does not have a power to examine or conduct an enquiry as what had transpired in the court below and in such an eventuality, review is the only remedy.

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In view of the preliminary objection made by Mr. S. N. Singh, Advocate, we are not inclined to interfere in the appeal.

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The Special Appeal is dismissed with liberty to the appellant to file a review application , if he is so advised.”

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(emphasis added)

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Thereafter appellant preferred review application, which has been rejected by judgment dated 05.05.2005. During pendency of this appeal, appellant has died and substituted by legal heirs and appeal is being pressed on their behalf.

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Sri W. H. Khan, learned Senior Counsel has submitted a short written submissions and reiterated the same in the Court also. He contended that an alternative remedy is not absolute bar to a writ petition filed under Article 226 where retrenchment notice has been challenged. Retrenchment is bad, since, Section 25 N of Industrial Disputes Act, 1947 (hereinafter referred to as “I. D. Act, 1947”) has not been complied with; Juniors to appellant were retained and in fact no seniority list was prepared while retrenchment was given effect; Appellant was appointed in handicapped quota and at the time of retrenchment, it was not given due consideration; Appellant could not have been terminated by taking recourse to provisions of U. P. Act, 1947. He has placed reliance on a Single Judge judgment of this Court in Service Single 2235 of 2004 (U.P. Rajya Hathkargha Nigam Ltd., Kshhetriya Karmchari Sanghthan and other vs. Union of India and other , decided on 05.04.2013. Thereagainst, Special Appeals No. 292 /903 /907 /295 /294 /

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293 /905 and 904 of 2013 preferred, were decided by judgment dated 30.07.2014 and Division Bench remanded the matter to learned Single Judge. Again vide judgment dated 17.11.2015, learned Single Judge reiterated the earlier stand. Sri Khan also relied on Division Bench judgment of this court in Ambika Singh Vs. U. P. State Sugar Coroparation, 1991 (61) FLR 426, T. K. Rangarajan Vs. Govt. of Tamil Nadu 2004 SC-SLR 1988, Lal Mohammad and others vs Indian Railway Construction Company and others, AIR 1999 SC 355; Uttranchal Forest Development Corporation and another vs. Jabar Singh and others, 2007 (2) SCC 112, Nair Services Society vs. Dr. T. Beermasthan, 2009 (5) SCC 545 and Prabhu Dayal vs S. S. Samiti Mujuri Vikas Khand Paniyar, 2008 Alld Civil Journal 1145 and has also placed before us a copy of Rules framed by State Government in exercise of powers under Section 38 (1) of I.D. Act, 1947 i.e. Industrial Dispute (UP) Rules, 1976, Rule 4 whereof provides for notice and application for permission for retrenchment.

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7 . The judgment of learned Single Judge which is under challenge is where it has declined to exercise extra ordinary constitutional remedy of writ under Article 226 on the ground of alternative remedy of raising an industrial dispute under the provisions of U. P. Act, 1947.

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Special Appeal preferred earlier by appellant was dismissed. Court did not find any reason to disturb judgment of learned Single Judge declining to entertain writ petition under Article 226 on the ground that petitioner must avail statutory alternative remedy under U. P. Act, 1947, but Division Bench considering argument of appellant's counsel that his case was different since he was not a Workman, and he was governed by statutory rules, therefore, I.D. Act, 1947 or U. P. Act, 1947 were not applicable, on this aspect liberty was given to appellant to file a review and not on the merits of decision taken by learned Single Judge that there is statutory alternative remedy and appellant must avail the same.

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Interestingly, before this Court learned counsel for appellant has not pressed any submission on the basis of Rules, 1981 and instead he has taken a totally different plea that alternative remedy is not an absolute bar and since

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there is a violation of provisions of retrenchment, therefore, appellant's termination is bad. Learned Single Judge has not non-suited appellant on merits of issue, but writ petition has been dismissed on the ground of alternative remedy available under U. P. Act, 1947.

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Whether seniority list was prepared or not or provisions pertaining to retrenchment are violated or not, involves disputed questions of fact for which statutory alternative remedy is provided under U. P. Act, 1947 itself, since procedure for retrenchment is also provided therein. Therefore, a person who satisfies definition of 'workman', if complains that provisions of retrenchment has not been followed, he must avail remedy under said statute which is a specific and special statute protecting right of such workman and providing machinery for adjudication also.

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Grievance raised by appellant that in the earlier special appeal which permitted review of the case, is different since he is governed by statutory rules, we find is of no substance, inasmuch as, UPSHCL is a Government Company registered under Companies Act, 1956 (hereinafter referred to as “Act, 1956”). Service conditions made by aforesaid Company though called Rules, 1981, but it is not in exercise of any statutory power. As an employer exercising its inherent power, it has framed certain conditions of service governing its employees and the same is framed as aforesaid Rules. The mere use of the word Rules will not render Rules 1981 statutory. The same is not statutory at all. Learned Senior Advocate appearing for appellant could place nothing before us to show that Rules, 1981 are statutory.

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A Company is incorporated under Act, 1956. Even Article of Association and Memorandum of such a Company have been held non statutory. Such a company, even if it is a government company, may be a 'State' for the purpose of Article 12 of Constitution, but does not become a statutory body or a department of government and Rules laying down terms and conditions made by such company for its employees or officers, will not become statutory rules. Therefore, Rules, 1981 are non statutory.

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Moreover, grievance of petitioner raised before this Court is violation of provisions of retrenchment and not of Rules, 1981. Therefore, the very

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basis on which in earlier appeal preferred by petitioner, liberty was granted to file review before learned Single Judge has been disowned and now different grounds are raised that there is non compliance of provisions of retrenchment which attracts the provisions of U. P. Act, 1947 though these aspects have not been examined by learned Single Judge.

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In our view, learned Single Judge is justified in directing appellant to avail statutory alternative remedy of raising industrial dispute under the said provisions.

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The judgment relied by learned counsel for appellant passed by learned Single Judge in U. P. Rajya Hathkargha Nigam Ltd. (supra) also does not help him for the reason that therein also writ petition was dismissed by learned Single Judge on the ground of alternative remedy, it was challenged in appeal on the ground that petitioner was not a 'Workman'. Matter was remanded to learned Single Judge to examine the question whether petitioner was 'Workman' or not for the simple reason that if petitioner was not a 'Workman', U. P. Act, 1947 could not have been attracted. On remand, learned Single Judge instead of deciding the question, whether petitioner was a 'Workman' or not, proceeded to decide matter on merits. We are informed that against said order appeal is still pending. It is evident that therein learned Single Judge did not comply judgment of Division Bench wherein issue required to be considered by learned Single Judge was whether petitioner was 'Workman' or not. If, he was Workman, nothing more was to be done as earlier decision directing petitioner to avail alternative remedy under U. P. Act, 1947 or I. D. Act, 1957 would have operated but if petitioner was not a 'Workman', dismissal of writ petition on the ground of alternative remedy could not have been justified.

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Here in this case, this issue is not in dispute. It is not the claim of appellant that he is not a Workman. Therefore, we do not find any error, legal or otherwise, in the view taken by learned Single Judge declining to interfere in the matter on the ground of alternative remedy.

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Appeal lacks merit. Dismissed accordingly.

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Order Date : 15.11.2019 Manish Himwan

Meerajuddin v. the Managing Director U.P. State Handloom Corporation and Ors.

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Meerajuddin v. the Managing Director U.P. State Handloom Corporation and Ors.

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