MATHUR, J. - (1.) IN the aforesaid two petitions, a reference has been made by the learned Single Judge for constituting a larger bench to decide the following questions framed by the learned Single Judge in S. B. Civil Writ Petition no. 1606/86 Smt. INdu Vs. Municipal Council, & anr. The question referred to the larger bench reads as under:- "whether disputes arising out of the Chapter V-A, V-B and V-C of the INdustrial Disputes Act which almost cover all the disputes arising out of Section 25 A to 25u of the INdustrial Disputes (Central) Rules can be directly entertained by this court u/art. 226 of the Constitution and if so, under what conditions, or whether such disputes being industrial disputes u/s 10 r/w Sec. ll-A of the INdustrial Disputes Act of 1947 should be first heard and decided by the INdustrial/labour Tribunals and thereafter if relief is not granted to the party by the appropriate forum then only, it should be allowed to come u/art. 226 of the Constitution of INdia before this Court. Alternatively :- To put it differently, whether the reference of a dispute u/s 10 r/w Sec. 11 of the I. D. Act as regards the disputes mentioned in chapter V-A V-B and V-C of the I-D Act read with Rule 77 and 78 of INdustrial Disputes (Central) Rules, offer an alternate, adequate and effective remedy which must normally be availed by the petitioners before they come to this Court directly u/art. 226 of the Constitution. " And in the case of Sunil Kumar Sharma Vs. Pali Central Cooperative Bank Ltd. (S. B. Civil Writ Petition No. 4408/1989) the following questions have been referred by the learned Single Judge to the larger bench:- " (1) Whether a reference by the appropriate Govt. to the appropriate Tribunal for violation of the provisions of Chapter V-A, V-B and V-C of the INdustrial Disputes Act read with rr. 77 and 78 of the INdustrial Disputes (Central) Rules can be considered to be an alternative-efficacious remedy and, therefore, a writ petition directly filed before this Court under Art. 26 of the Constitution without getting that matter referred to and decided by the appropriate Tribunal should not normally be entertained? (2) Whether as per s. 25-B (2) of the Act, an employee/workman has a right to choose his own date of termination with reference to which the calculation is to be made, without reference to the actual date of termination (or to put it differently), whether the date with reference to which calculation is to be made is to be held as the actual date of termination and not any other date prior to that date on which he might have completed 240 days of uninterrupted or interrupted service within the period of 12 calender months as per s. 25-B of the INdustrial Disputes Act counting those 12 months backward from that alleged date of termination? (3) If question No. 2 is answered in favour of the petitioner that he has a right to choose any date on which he has completed 240 days of service as the date of his termination from service then whether the interrupted service rendered by him thereafter has to be treated as uninterrupted service till the date of actual termination. Whether such a deeming fiction can be read into s. 25-B (l) and (2) of the INdustrial Disputes Act keeping in view the aims and objects of the INdustrial Disputes Act with special reference to the-provisions of ss. 2 (oo), (bb), 2 (j), 2 (s) and 25-F of the Act. (4) Whether the provision 'cessation of work which is not due to any fault on the part of the workman'as provided in s. 25 (1) of the Act can be interpreted to mean interruption caused by employer by not offering work to the employee or it only covers cases where the entire work of an industrial establishment or its particular wing is brought to a halt on account of certain circumstances. "
(2.) THE basic question which comes up for determination in these re-ferences is whether a writ petition can directly be maintained for violation of the provisions of Chapters V-A, V-B and V-C of the Industrial Disputes Act, 1947 and Rules 77 and 78 of the Industrial Disputes (Central) Rules without first availing the statutory, remedy provided under the Industrial Disputes Act. The first and foremost question which should clearly be understood is that the scope of Article 226 of the Constitution of India cannot be put in a straight jacket formula. The extraordinary power conferred on the High Courts under Article 226 of the Constitution of India is of a very solitary nature and it has to be exercised with great care and caution. The extraordinary power given under Article 226 of the Constitution of India is not confined only to the English writs, namely, Mandamus, Prohibition, Certiorari, Quo warranto and Habeas Corpus. The Article 226 of the Constitution of India has been very widely worded and apart from these five conventional writs, it further says that the extraordinary power can be exercised for the enforcement of any of the rights conferred by part III of the Constitution and for any other purpose. Thus Article 226 is not circumscribed by any statutory prohibition but by series of judicial decisions a self imposed restraint has been exercised by the courts in the exercise of this discretionary extraordinary remedy. There are series of decisions of the Hon'ble Supreme Court and various High Courts all over the country to the effect that even if the existence of the alternative remedy is no bar for the exercise of extraordinary jurisdiction under Article 226 of the Constitution to India. But it has further been laid down that, ordinarily the Court shall no interfere wherever it is satisfied that the efficacious statutory alternative remed exists for redress of the grievence of the incumbent. Reference has been made to various judgments of the Hon'ble Supreme Court and various High Courts they show that the Courts have taken a liberal view of the matter and have interferred in the matters where there was a statutory efficacious alternative remedy in existence. It has also been submitted that there are number of cases where the courts have also taken the view that if the order is void-ab-initio then no amount of alternative statutory remedy can prohibit the interference by the Courts in the exercise of the powers under Article 226 of the Constitution of India. Therefore, to say that in all cases where there is a statutory alternative remedy available the writ petition under Article 226 of the Constitution of India is barred is far from correct. By and large the Courts should employ a pragmatic approach while exercising the extraordinary jurisdiction under Article 226 of the Constitution of India. As pointed out above, apart from the five conventional English writs the Article 226 of the Constitution of India has been couched in a very liberal manner. The Courts are guardian of the democratic set up and has a very important role to play in the democratic set up so as to maintiain a check and balance on the powers of the Executive and the Legislature and therefore it would not be proper to lay down as a sweeping proposition that wherever a statutory remedy is available then the entertainment of the writ petition is barred. The scope of Article 226 of the Constitution of India cannot be put in a straight jacket or cannot be exhaustively described that in what circumstances the Court should interfere notwithstanding the statutory alternative remedy and in what circumstances it should not interfere. There are no fixed parameters for exercise of the extra-ordinary jurisdiction. In order to answer the specific question, which has been framed for our consideration that when Sections 10 and 11-A of the Industrial Disputes Act 1947 (hereinafter referred to as 'the Act') lay down that in the event of any disputed arises between the employee and the employer then on failure of reconciliation a reference under Section 10 shall be made by the Government before the Labour Court for adjudication. Whether this could be treated as a statutory alternative remedy so as to bar the interference by the Courts under Article 226 of the Constitution of India. Sections 10 and 11-A read as under:- "10. Reference of disputes to Boards, Courts or Tribunals- (t) "whether the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time", by order in writing- (a) refer the dispute to a Board for promoting a settlement thereof; or (b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or (c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudications ' (d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication : Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c): Provided further that where the dispute relates to a public utility service and a notice under Section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolous or vexatiously given or that it would be expedient so to do, make a reference under this sub-section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government. (1-A) Where the Central Government is of opinion that any industrial dispute exists or is apprehended and the dispute involves any question of national importance or is of such a nature that industrial establishments situated in more than one States are likely to be interested in,or affected by, such dispute and that the dispute should be adjudicated by a National Tribunal, then, the Central Government may, whether or not it is the appropriate Government in relation to that dispute, at any time, by order in writing, refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a National Tribunal for adjudication. (2) Where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, for a reference of the dispute to a Board, Court, Labour Court, Tribunal or National Tribunal, the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. (2a) An order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section shall specify the period within which such Labour Court, Tribunal or National Tribunal shall submit its award on such dispute to the appropriate Government; Provided that where such industrial dispute is connected with an individual workman, no such period shall exceed three months: Provided further that where the parties to an industrial dispute apply in the prescribed manner, whether jointly or separately, to the Labour Court, Tribunal or National Tribunal for extension of such period or for any other reason, and the presiding officer of such Labour Court, Tribunal or National Tribunal considers it necessary or expedient to extend such period, he may for reasons to be recorded in writing, extend such period by such further period as he may think fit: Provided also that in computing any period specified in this sub-section, the period, if any, for which the proceedings before the Labour Court, Tribunal or National Tribunal had been stayed by any injunction or order of Civil Court shall be excluded: Provided also that no proceedings before a Labour Court, Tribunal or National Tribunal shall lapse merely on the ground that any period specified under this sub-section had expired without such proceedings being completed. (3) Where an industrial dispute has been referred to a Board, Labour Court, Tribunal or National Tribunal under this section, the appropriate Government may by order prohibit the continuance of any strike or lock-out in connection with such dispute which may be in existence on the date of the reference. (4) Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental there to. (5) Where a dispute concerning any establishment or establishments has been, or is to be, referred to a Labour Court, Tribunal or National Tribunal under this section and the appropriate Government is of opining, whether on an application made to it in this behalf or otherwise, that the dispute is of such a nature that any other establishment, group or class of establishments of a similar nature is likely to be interested in,or affected by, such, dispute, the appropriate Government may, at the time of making the reference or at any time thereafter but before the submission of the award, include in that refer-ence such establishment, group or class of establishments, whether or not at the time of such inclusion any dispute exists or is apprehended in that establishment, group or class or establishments. (6) Where any reference has been made under sub-section (1 A) to a National Tribunal, then notwithstanding anything contained in this Act, no Labour Court or Tribunal shall have jurisdiction to adjudicate upon any matter which is under adjudication before the National Tribunal, and accor-dingly,- (a) If the matter under adjudication before the National Tribunal is pending in a proceeding before a Labour Court or Tribunal, the proceeding before the Labour Court or the Tribunal, as the case may be, in so far as it relates to such matters, shall be deemed to have been quashed on such reference to the National Tribunal; and (b) It shall not be lawful for the appropriate Government to refer the matter under adjudication before the National Tribunal to any Labour Court or Tribunal for adjudication during the pendency of the proceeding in relation to such matter before the National Tribunal. Explanation:- In this sub-section "labour Court' or "tribunal" include any Court or Tribunal or other authority constituted under law relating to investigation and settlement of industrial disputes in force in any State. (7) Where any industrial dispute, in relation to which the Central Government is not the appropriate Government is referred to a National Tribunal then notwithstanding anything contained in the Act, any reference in Section 15, Section 17, Section 19, Section 33-A, Section 33-B and Section 36-A to the appropriate Government in relation to such dispute shall be construed as a reference to the Central Government but, save as aforesaid and as otherwise expressly provided in this Act, any reference in any other provision of this Act to the appropriate Government in relation to that dispute shall mean a reference to the State Government. (8) No proceedings pending before a Labour Court, Tribunal or National Tribunal in relation to an industrial dispute shall lapse merely by reason of the death of any of the parties to the dispute being a workman, and such Labour Court, Tribunal or National Tribunal shall-complete such proceedings and submit its award to the appropriate Government. " "11a. Power of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen-Where an industrial disputes relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case require: Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall not take any fresh evidence in relation to the matter. " It is true that under the Industrial Disputes Act a proper machinery has been provided for resolving the industrial dispute and in order to maintain industrial peace and harmony between the employer and the employee. Section 10 cast a duty on the State to make a reference to the Tribunal or the Labour Court for resolving the dispute. But unfortunately the power under Section 10 has not been exercised expeditiously resulting in total frustration. The State Government sits over the reference for years together resulting in total frustra-tion in the mind of the labour. Thus, the exercise of the power by the State Government under Section 10 itself takes a considerable time and by the time it is decided by the Court the poor workman whose services are terminated would be reduced to the stage of starvation and ceased to have any patience to wait for the result of the decision from the Government and the Tribunal. Section 10 of the Industrial Disputes Act was, a matter of fact, engrafted so that frivolous reference may not be made to the Tribunal for its adjudication. But the experience has shown that references were with held for years together and so much so the incumbents have to approach the Court for seeking a mandamus directing the State Government to make reference to the Tribunal. The power under Section 10 has been interpreted by their Lordships of the Supreme Court as an administrative power of the State Government. In this connection reference may be made to (1) Telco Convoy Drivers Mazdoor Sangh V. State of Bihar (1) wherein their Lordships of the Supreme Court observed that it is purely an administrative matter to make a reference and the Government is not entitled to delve into the merits of the dispute and in this connection, it was observed as under: "while exercising power under S. 10 (1) the function of the appropriate Government is an administrative function and not a judicial or quasi-judicial function, and that in performing this administrative function the Govern-ment cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by S. 10. It is true that in considering the question of making a reference under S. 10 (1), the Government is entitled to form an opinion as to whether an industrial dispute "exists or is apprehended. But the forma-tion of opinion as to whether an industrial dispute 'exists or is apprehended' is not the same thing as to adjudicate the dispute itself on its merits. Whereas in the instant case, the dispute was whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under S. 10 (1) of the Act. The order of the Govt. refusing to refer the dispute on ground that the persons raising the dispute are not workmen is liable to be set aside. As the Govt. had persistently declined to make a reference under S. 10 (1) the Supreme Court directed the Govt. to make a reference. " In fact, if strictly construed, whether this remedy is efficacious or not much can be said against it because efficacy has to be seen in point of time also. At times the references are being delayed for years together which does not benefit the incumbent nor does it benefit the public exchequer also. In case the dispute terminates through the process of conciliation and reference by the Labour Court it takes years together and by that time it terminates against the labour then he reaches at the brink of starvation and if it terminates against the public authority then the public exchequer has to pay a huge amount for no work done by the labour and this unnecessarily burdens the public exchequer. As a matter of fact, by passage of time Section 10 becomes redundant and it ceases to serve any useful purpose. However, so long as Section 10 of the Industrial Disputes Act exists then of course it can be argued that the incumbent has a statutory alternative remedy. It is true that Chapters V-A, V-B and V-C can be enforced through the remedy of the Labour Court, but in what circumstances the incumbent should be directed to avail that remedy first before approaching the High Court under Article 226 of the Constitution of India, will depend upon case to case. Some times wh*en the matter is clear and violation of the provisions of the Industrial Disputes Act are apparent and it does not call for any further probe of facts then in that situation to direct the incumbent to undergo through the process of Labour Court will not be a fair exercise of discretion under Article 226 of the Constitution of India. In this class of cases like the incumbent has completed 240 days and compliance of Section 25-F has not been made for such matters to direct the incumbent to go through the labour court is unfair and unjust to the workman. In case it is pointed out that there is a dispute whether the incumbent had completed 240 days or not then such dispute should be better left to be resolved by the labour court. But in case where violation is apparent then it will not be fair exercise of discretion to deny the incumbent the relief on account of existence of statutory alternative remedy. Likewise, in a case where it is apparent that the provisions of the Act and the conditions precedent required there-under have not been followed and it does not involve any disputed question of fact to be decided then such matters can conveniently be disposed of under the extraordinary jurisdiction and to direct in that situation to the incumbent to resort to the alternative statutory remedy first is also not a proper exercise of the discretion under Article 226 of the Constitution of India.
(3.) THE learned Single Judge who has made these references has catalogued a series of judgments cited before him but it will not be proper to burden this order by referring to all those cases, but reference to some cases on the subject would be useful for the convenient answer of these references. Much controversy has arisen on account of a judgment of this Court in the case of Mahendra Nath Sharma Vs. Cooperative Societies In the case of Mahendra Nath Sharma, learned Judge has referred to not less than 137 judgments of various High Courts all over the country and the Hon'ble Supreme Court and in that connection the learned Single Judge has also referred to a full bench decision of this Court in Bhanwar Lal etc. Vs. R. S. R. T. C and this judgment was also considered by Hon'ble J. R. Chopra, J. Thus, it would be proper to first examine this judgment. In Bhanwar Lal's case (supra) the question which came up for consideration primarily was whether clause 13 of the Standing Orders of the R. S. R. T-C. is valid or not. Incidentally, many other questions were also raised. One of the questions which arose was whether the remedy under Article 226 of the Constitution is barred when a statutory alternative remedy is already available under the Industrial Disputes Act. On that aspect, Hon'ble N. M. Kasliwal, J. , as he then was, observed in para 202 as under:- "so far as the contentions raised by the learned counsel for the Corporation that the petitioners had an alternative remedy of raising an industrial dispute, suffice it to say that in these cases the petitioners have challenged the vires of clause 13 of the Employees Standing Orders under which the present orders of termination have been passed and the same being clearly in violation of Secs. 25-F and 25-G of the Act, the bar of raising an industrial dispute is of no consequence. A Division Bench of this Court to which I was a party (99) Tejbhan Singh Vs. State of Rajasthan & others: (against judgment reported in 1982 R. L. R. 361, (D. B. Civil Special Appeal No. 234/ 80 decided on April 27, 1983) it has been held that the remedy under Sec. 10 of the Industrial Disputes Act is no bar for filing a writ petition under Art. 226 of the Constitution of India. The entire law with regard to Sec. 10 of the Industrial Disputes Act when becomes a bar and under what circumstances and the scope of approaching this Court under Art. 226 of the Constitution of India has already been discussed in detail in that case and I do not want to make any discussion further in regard to this controversy. However, as already mentioned above, in the facts and circumstances of this case, there is no force at all in the contention of the learned counsel for the Corporation that the petitioners should have availed the remedy of raising an industrial dispute before filing the writ petitions under Art. 226 of the Constitution of India. " ;