R.S.Dayal, J. - (1.) Point for decision in this appeal is whether in respect of an industrial dispute for which remedy lies before the forum created by the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), the High Court should entertain a writ petition under Article 226 of the Constitution.
(2.) Gopal Chandra Mondal, respondent herein, joined the service of Eastern Coalfields Ltd. That company along with some others was nationalised by the Coal Mines (Nationalisation) Act, 1972. As a result of the nationalisation the respondent became an employee of the Coal Mines Authority Ltd. which is a "State" within the meaning of Article 12 of the Constitution of India with effect from May 1; 1973. Clause 9.4.0 of NCWA IV, inter alia, provides for employment to be given to one dependent of workers disabled permanently and those who met with death while in service. The respondent and one another executed an Indemnity Bond in the year 1991 in connection with the employment of one Mahesh Kora on the ground of the death of his sister Dingle Kora declaring and undertaking that if the relationship between Mahesh Kora and his deceased sister Late Dingle Kora was found to be false, they would be dismissed from the service of E.C.L, Case of the appellants is that Mahesh Kora was provided with the employment in terms of the provisions contained in Clause 9.4.0 referred above and the aforesaid Indemnity Bond but after thorough inquiry by the Vigilance Department it was found that Mahesh Kora was not the brother of Dingle Kora and the declaration made by Mahesh Kora in the Indemnity Bond that he was the brother of late Dingle Kora was false and so the services of respondent Gopal Chandra Mondal were terminated. The termination order was challenged by the respondent by writ petition from which this appeal has arisen. In the writ petition, learned Counsel for the appellants raised a preliminary objection challenging maintainability of the writ petition, contending that the respondent ought to have approached the forum created by the Industrial Disputes Act, 1947. The learned Trial Judge held that indemnity is reimbursement and so a statement of an employee to the effect that his employer can terminate his service summarily, if it is found that a particular person has procured the employment under the same employer on the basis of a false declaration, cannot be said to be a contract of indemnity as defined in Section 124 of the Central Act because loss, if any, caused to the employer on account of wrongful employment of such particular person cannot be compensated or reimbursed by termination of service of the statement maker. The Court further observed that the respondent has right to livelihood guaranteed by Article 21 of the Constitution of India and the wrongful termination in violation of Section 25-F of the Act has resulted in deprivation of his right of livelihood which he could not barter away, as no individual can barter away the freedoms conferred upon him by the Constitution. The learned Trial Judge held that the order of termination has resulted not only in violation of Section 25-F of the Industrial Disputes Act, 1947 but also Article 21 of the Constitution and since Article 21 has been violated, the petition is maintainable. In the result, the learned Trial Judge allowed the petition, set aside the order of termination and directed the appellants herein to pay the respondent all arrears of salaries and allowances from the date of termination of his services.
(3.) Aggrieved by this order the appellants have come up in appeal. The appeal was listed for hearing on the application for interim order when learned Counsel for the parties submitted that hearing of the application would involve the same amount of time as the hearing of the appeal itself and, therefore, the appeal itself might be heard. Accepting the request, the appeal has been heard. We have heard Shri Alok Banerjee on behalf of the appellants and Shri R.N. Majumdar on behalf of the respondent No. 1;